In its 1996 decision in Felker v. Turpin, the U.S. Supreme Court saved Congress from itself, relying on creative legal reasoning to hold that some of the key provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) did not actually raise the serious constitutional questions that they appeared to present. As Felker held, although Congress had meant to foreclose state and federal prisoners from filing most “second-or-successive” habeas petitions (including in some cases in which they had an indisputable claim for relief), that constraint only applied to the lower courts. Appearances to the contrary notwithstanding, Felker held, Congress had left intact the Supreme Court’s ancient authority to entertain “original” habeas applications in such cases, i.e., habeas petitions filed initially in the Supreme Court, a practice blessed by Chief Justice John Marshall as early as 1807. Because review of a prisoner’s constitutional claims remained available in at least one judicial forum, Felker ruled, the AEDPA did not implicate either the prisoner’s constitutional right to judicial review or the role of the federal courts as the ultimate arbiters of the Constitution.
As should be clear, Felker’s reasoning works only if the Supreme Court actually exercises its original habeas jurisdiction in appropriate cases. Otherwise, there will be cases in which there is no judicial forum available in which to adjudicate the legality of the state’s taking of liberty and life—the very condition that Felker held to be constitutionally intolerable.
According to the Supreme Court’s rules, its exercise of original jurisdiction requires “exceptional circumstances warrant[ing] the exercise of the Court’s discretionary powers, and…[a showing that] adequate relief cannot be obtained in any other form or from any other court.” If Felker means what it says, then the Supreme Court must grant such relief in the pending case of Warren Lee Hill, Jr.—a Georgia inmate whose execution is currently scheduled for next Monday evening, July 15, and whose case is the rare one that clearly satisfies both prongs of the Supreme Court’s requirements for such relief.
Certainly the circumstances of Hill’s case are exceptional. As one federal judge put it, “all seven mental health experts who have ever evaluated Hill…now unanimously agree that he is mentally retarded.” And in 2002, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment categorically forbids capital punishment of such individuals. Even in Georgia, therefore, a state with the most restrictive standard in the nation for proving mental retardation, Hill appears to have a textbook Atkins claim—and thus the “exceptional circumstances” that Felker and the Supreme Court’s rules contemplate.
The AEDPA itself is responsible for the unavailability to Hill of relief in any other forum. It forbids state and federal prisoners who have already tried to challenge their death sentence in a post-conviction habeas petition and failed to bring a “second-or-successive” suit in the lower federal courts unless they can show that their claim is based on new factual or legal developments tending to undermine their conviction. In Hill’s case, even if the recently developed evidence establishing his mental disability is a qualifying new development, it goes only to his sentence. So, as the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit concluded, the AEDPA denies the lower courts the power to set aside capital sentences in cases like Hill’s—even when the prisoner appears to be categorically ineligible for the death penalty.
Hill therefore presents the precise situation that Felker contemplated: a prisoner with an indisputable claim for relief from an unlawful capital verdict, who is prevented by the AEDPA from presenting that claim to any lower court. Hill’s case forces the Supreme Court to put its money where its mouth is: If the constitutional right to a forum to challenge unlawful imprisonment and execution means what Felker said, then the Court must use its original habeas jurisdiction in the rare case like Hill’s where such relief is necessary to prevent a patently unconstitutional execution. Otherwise, not only will Georgia execute a man whose capital punishment the Constitution forbids, but the entire basis for the Supreme Court’s decision upholding the AEDPA’s restrictive review scheme will collapse under its own weight.
Stephen I. Vladeck is a professor of law and associate dean for scholarship at American University Washington College of Law. James Liebman is the Simon H. Rifkind Professor of Law at Columbia University. They are two of the co-authors of an amicus brief filed by law professors with the U.S. Supreme Court about Hill’s case.