Horseshoes, Hand Grenades, and Habeas 6MAI10

Imagine you or someone you loved were accused of a crime and tried in state court. Our federal constitutional rights give us certain protections in these state trials, but imagine your trial was an unfair one. Imagine the state court did not uphold your constitutional rights, for whatever reason: maybe your trial judge faced a tough election and wanted to look tough on crime; maybe the judge was lazy; maybe he or she simply did not understand the law. And imagine you were then convicted in this unconstitutional trial and sent to prison, or worse, sentenced to death.

Traditionally, if the state court failed to correct the federal constitutional error, you could go to a federal court seeking "habeas corpus" review. If a federal judge agreed that the state court violated your constitutional rights, the federal judge could order the state to release you or provide a new trial. In a decision released Monday in Renico v. Lett concerning the constitutional right to be free from double jeopardy (that is, being prosecuted twice for the same offense) — the Supreme Court of the United States reaffirmed previous rulings that a federal court may not order habeas relief merely because the state court violated your constitutional rights. Buried in footnote three of its decision, the court said it would not decide if the petitioner's constitutional right to be free from double jeopardy had been violated, only that the question was a "close" one.

The court then stated that if a state court ruling is "close" enough on the Constitution — the state court had made a credible effort, even if they got it wrong — a federal judge's hands are tied. If it's close enough, the federal judge is powerless to correct the injustice.

In deciding Renico, the court was interpreting a 1996 statute known as the Anti-Terrorism Effective Death Penalty Act (AEDPA). Ridiculous as it sounds, AEDPA effectively requires that federal judges ignore constitutional violations in "close" cases. This mandate on "close" cases conflicts with the famous holding in Marbury v. Madison that "It is emphatically the province and duty of the [judicial branch] to say what the law is."

Because AEDPA effectively strips judges of the power to decide whether a person's rights were violated, many federal judges have suggested that AEDPA violates the constitutional requirement known as "separation of powers," and is therefore unconstitutional. The Renico decision, however, did not address AEDPA's constitutionality.

When I was growing up in Michigan, where horseshoes was a favorite game, if I failed to meet one of my responsibilities but came close, my parents or teachers might say, "Close only counts in horseshoes and hand grenades." With yesterday's decision, we can add "habeas corpus" to the list. Until the Supreme Court resolves the constitutionality of AEDPA or Congress repeals it, state courts may often get away with "close enough" when it comes to our constitutional rights.