Dear Attorney General Eric Holder,
When I decided to become a lawyer, it was because people like you existed. You made the legal profession seem like the right road to travel if I wanted to enact change and fight the barriers that had so disproportionately affected people of color. You took office as the first African-American attorney general during the term of our first African-American president. Therefore, it was only right for you to combat issues of racial injustice that were never allowed to be topics of conversation, and battle race relations between communities and law enforcement officials. You’ve done critical work to support access to voting, fighting for states to repeal voter identification laws and arguing for the repeal of felony disenfranchisement laws, because those laws have such an outsized impact on people who look just like you and I.
As you look toward leaving office in the coming weeks, it must be brought to your attention that there has been a recent outcry for justice for those who have lost their last attempt to have federal review of their habeas corpus claims. Habeas corpus is a writ that is used to bring a party who has been criminally convicted in state court into federal court. Usually, writs of habeas corpus are used to review the legality of the party’s arrest, imprisonment, or detention. Those who are like Paul Howell, one of the first in Florida to be executed without any federal court review of his constitutional claims. Despite efforts by the American Bar Association and volunteer attorneys, their hard work could not undo the mistake of his court-appointed habeas attorney who missed the most important deadline of his life under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The law reduced the filing deadline for a habeas corpus review to one year after a sentence becomes final. However, few within the legal profession think the law was written appropriately. Justice Scalia has been quoted as questioning who wrote AEDPA because it so poorly crafted.
As attorney general, you have been granted the power of directing the work of U.S. attorneys and all other counsel employed on behalf of the U.S. What can you do with this power? Lots of things. But, please start here:
While there are 94 federal judicial districts in the United States, there are only 17 capital habeas units of the federal defender’s offices that specialize in habeas corpus and monitor the progress of death penalty cases through their state courts. We need the other 77 districts to do similar work, and then all units need to bring the judicial system up to date by publishing their data on an open data portal. An open data portal would allow for there to be real-time tracking, updates and the possibility of creating better guidance in determining deadlines for the attorneys handling capital habeas cases. Create an internal oversight unit that would push for stronger sanctions of attorneys who have consistently proven to be incompetent counsel. Shift the burden of proof from the hands of those who have little to no knowledge of the complex habeas corpus laws to the lawyers who are trained to handle these cases. Push for state courts to improve their systems for appointing and funding habeas counsel. In particular, states must become transparent about what attorneys they have assigned. Push for stronger congressional guidelines on appointing attorneys to federal habeas corpus proceedings. Argue that judges who fail to sanction these attorneys should be subject to sanctions themselves.
These changes are necessary if we want a competent judiciary; when you take a poorly written statute like AEDPA and combine it with ineffective counsel systems, you get what Judge Rosemary Barkett reasonably calls an inadequate system. From easily-missed critical deadlines to incompetent counsel, AEDPA has made it nearly impossible for many to have their claims heard, resulting in what the Marshall Project calls “death by deadline.” The Marshall Project looked into 80 cases where the deadline was missed — a small fraction of the total number of cases featuring these problems. In its review, it found that several lawyers missed the deadline by more than two years. One attorney missed the deadline by more than 11 years. The review revealed that procedural and staffing issues have effectively turned the judicial system into a black hole for people who have been sentenced to death. It’s amazing how much confusion and ineffectiveness has been produced by this single attempt to make the death penalty “effective.”
Problems like these in our court system mean that we cannot trust that things will go smoothly. Take, for example, the fact that 2014 witnessed the highest number of exonerations taking place in the last five years. What if exonerees Henry McCollum, Leon Brown, Glenn Ford, Carl Dausch, Ricky Jackson, Wiley Bridgeman and Kwame Ajamu were denied their final review? They would be like the 16 already executed as described by the Marshall Project due to a missed deadline.
You are a pioneer. Let your legacy include tackling the Anti-Terrorism and Effective Death Penalty Act, because it is a principle of law in this country that even if a person has been sentenced to death they have a right to challenge that decision. Your acknowledgement of this issue and push for change will force this to be a priority for your successor. Let your legacy include you being the first attorney general to call for courts around the country to buy into the idea of open data and transparency; to further the practice of sharing information; and to make more informed decisions and well-crafted laws. You have already made history, but, before you go, set this precedent.