A Criminal Enterprise

Where is Congress in the Innocence Debate?

Posted in Uncategorized by Bidish J. Sarma on September 7, 2009

The Troy Davis case has received international attention.  We previously discussed the case here.  At the bottom of the legal debate is the question of whether Congress intended the Anti-Terrorism and Effective Death Penalty Act (AEDPA) to foreclose federal habeas relief to a petitioner with a legitimate claim of actual innocence.  Some judicial realists might pose the question differently: Would five justices on the U.S. Supreme Court approve of the execution of a potentially innocent man?  Perhaps the Supreme Court already answered that question in a qualified manner when it granted Davis’s original writ of habeas corpus and ordered the district court to conduct a hearing.  The Supreme Court essentially said: we will not let a potentially innocent man go to his execution until he has been allowed to fully make his actual innocence claim in front of a judge.

Yet, the question lingers — does AEDPA allow petitioners with an actual innocence claim to pitch that claim to a federal judge?  Surely the Supreme Court will not standardize the path that Troy’s case has taken and grant original writs to circumvent AEDPA.

As the tedious legal debate drones on — entangling the Scalias and Dershowitzs of the world — I have one simple question: Why doesn’t Congress take clear action?  Regardless of what the Justices of the Supreme Court think AEDPA said and did not say, surely the overwhelming majority of people in our democracy would support legislation that prohibits the execution of innocent individuals.  Forget what the Congress thought or said or implied in 1996 when it passed AEDPA.  Let’s pass a bill now, and give innocent prisoners the right to acccess the courts, win justice, and avoid wrongful executions.

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