Christopher Wright Durocher

Last month, the U.S. Supreme Court took a toxic law and made it more potent. The Antiterrorism and Effective Death Penalty Act, or AEDPA, has been an impediment to justice since its passage more than a quarter-century ago. In Brown v. Davenport,[1] the Supreme Court just expanded the reach of one of the AEDPA's more damaging provisions.

Prioritizing finality over accuracy and efficiency over constitutionality, Section 104 of AEDPA, passed in 1996, requires federal courts to deny relief to a person convicted of a crime seeking habeas review — even when constitutional violations tainted the trial — so long as the state court that previously reviewed the case was not unreasonable in its application of federal or constitutional law.

Simply put, a state court does not have to be correct in its application of constitutional law, or even in its determination of the facts in the case; it just can't be so incorrect as to be unreasonable. Few would consider that justice.

That is precisely what happened in a case the Supreme Court decided last month, on April 21.

In Brown v. Davenport, Ervine Davenport was convicted of first-degree murder after a trial in which he was bound with handcuffs, waist chains and ankle shackles at the defense table in front of the jury that would decide his fate.

In 2005, three years before Davenport's conviction, the U.S. Supreme Court made clear in Deck v. Missouri that shackling a defendant in view of the jury was so prejudicial as to violate the defendant's 14th Amendment due process rights. No one in this case argues that this isn't true.

The Michigan Supreme Court acknowledged that the trial court judge was wrong to allow Davenport to be shackled in front of the jury.

At the direction of Michigan's highest court, the Kalamazoo County Circuit Court held a hearing and determined that Davenport's shackling was a "harmless error."

In essence, the court decided that the defendant's appearance — the evocative image of a manacled defendant, and what that suggested about his character and the risk to public safety that he might pose — did not affect the jury's ability to render a decision based on the facts presented at trial.

Davenport then sought habeas relief in federal court, and ultimately ran headlong into the AEDPA and its unreasonable "unreasonable" standard.

Before the case got to the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit held that Michigan must either retry or release Davenport because of the egregious and obvious constitutional violation of shackling him in front of the jury.

In reaching that determination, the Sixth Circuit relied on a 1993 U.S. Supreme Court decision, Brecht v. Abrahamson,[2] which held that to reverse a state's finding of harmless error, a federal court in habeas review must find the error had a "substantial and injurious effect or influence."

The court reasoned that the Brecht test is more onerous and therefore subsumes the AEDPA's unreasonable test, which the Supreme Court itself acknowledged in its 2007 decision in Fry v. Pliler.[3]

In finding a substantial and injurious effect, the Sixth Circuit quoted the Supreme Court's own observation that


The majority of Supreme Court justices were not persuaded by this reliance on their previous statements and, in a 6-3 decision along ideological lines, overturned the Sixth Circuit.

In an opinion by Justice Neil Gorsuch, the court held that the AEDPA's unreasonable standard must be applied to a harmless-error review, and that applying it to Davenport's case resulted in a denial of his request for habeas relief.

Justice Gorsuch dismissed the Sixth Circuit's reliance on the Supreme Court's own statement that Brecht subsumes an AEDPA analysis, saying that previous analyses of harmless-error review were "curated snippets extracted from decisions."

Apparently, for the majority of this court, it is foolish for a party to take the court's previous statements as having meaning or import. What counts as a curated snippet and what counts as legitimate precedent may be anyone's guess.

More concerning than the court's easy dismissal of its own past statements — a trend we might expect to accelerate in the era of the conservative supermajority — is the fact that the court acknowledges that under Brecht, Davenport's claim might succeed, but under the AEDPA's unreasonable standard, it cannot.

Brecht itself is a very difficult test for a habeas petitioner to overcome, so the fact that the AEDPA's unreasonable standard might be more stringent reveals the ways in which modern habeas analysis is not — and cannot be — about achieving a constitutional result.

But perhaps much of this is beside the point. Perhaps this is just one more step in the conservative project to virtually eliminate habeas review.

In an analysis[5] of habeas cases after the first decade and a half since the AEDPA's passage in 1996, less than 1% of habeas claims that do not involve the death penalty resulted in any form of relief. The AEDPA may not have limited the number of habeas claims filed, but it has certainly limited the number of successful habeas claims.

In her dissent, Justice Elena Kagan accused Justice Gorsuch of "play[ing] amateur historian" and engaging in what she derisively called "law-chambers history" in order to deny the long-standing practice of using habeas to correct constitutional wrongs.

This play-acting as a historian led Justice Gorsuch to claim that it wasn't until 1953 that "constitutional error correction became the order of the day," despite cases dating back to the 19th century belying this claim.

It seems that some in the conservative supermajority of this court want to return to imaginary good old days when habeas was not available to correct constitutional errors.

Brown v. Davenport itself may make little difference in the success or failure of future habeas petitions, but it may serve as a warning of this court's hostility toward the writ. Future decisions may bring even more restrictive readings of habeas and the AEDPA, and move us further from our ideal of a just and constitutional criminal legal system, in order to achieve finality and administrative convenience.

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Christopher Wright Durocher is the vice president of policy and program at the American Constitution Society.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

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[1] https://www.supremecourt.gov/opinions/21pdf/20-826_p702.pdf.

[2] https://supreme.justia.com/cases/federal/us/507/619/#tab-opinion-1959207.

[3] https://casetext.com/case/fry-v-pliler-8#p120.

[4] https://casetext.com/case/davenport-v-maclaren-1

[5] https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1824&context=faculty-publications.