David Sanders was sentenced to death in 1987 for murdering two people while robbing a Madison County grocery store.
Since then, Sanders has argued his conviction was tainted by mistakes at trial and ineffective defense attorneys who failed to show he’s mentally unfit for execution.
Kentucky judges rejected his appeals, so Sanders wants federal courts to intervene.
But the federal judges say that, even if they agreed with Sanders, a 1996 law prevents them from questioning state courts’ decisions.
The Anti-Terrorism and Effective Death Penalty Act of 1996 is a common roadblock for defendants and attorneys looking to overturn death penalty convictions because it prohibits federal judges from intervening unless they think state court decisions were not just wrong, but unreasonably so. This creates a high bar for defendants, one that hinges not on guilt or innocence, but complicated questions of procedure. It’s a quirk of law that frustrates some federal judges who argue they’re relegated to spectators, forced to sit by and watch as state courts make decisions with life or death implications.
That is not what the framers of the U.S. Constitution had in mind, said David Barron, an attorney with the Kentucky Department of Public Advocacy, in a brief submitted on Sanders’s behalf in November. Barron argues the law improperly bars federal judges from exercising their responsibility to adjudicate the law and he wants a judge to declare the law unconstitutional.
“(The law) has frequently been the difference between a person — sometimes an innocent person — having to serve a sentence for an unconstitutional conviction and obtaining relief,” the brief explains. “Said differently, it takes away a federal judge’s authority to determine and remedy violations of the federal Constitution.”
The case has the attention of lawyers across the country, said Emily Olson-Gault, the director and chief counsel of the American Bar Association’s Death Penalty Representation Project.
If a court agrees with Barron it wouldn’t necessarily mean Sanders or other prisoners like him go free. Instead, Olson-Gault said it would simplify death penalty litigation by removing what has become a major procedural hurdle.
“So much of what death penalty lawyers who practice post-conviction do is fight about procedure. They spend years and years writing hundreds, thousands of pages about the reasonableness of the state court,” Olson-Gault said. “A lot of cases never even reach that question (of guilt or innocence) because they get so tangled up in procedure.”
She expects other attorneys will adopt Barron’s tactic for their own cases.
“Because this isn't something that's unique to Kentucky or the 6th Circuit,” Olson-Gault said. “This is how the law works nationally.”
Sanders is one of 25 people on Kentucky’s death row. Executions are on hold following a Franklin Circuit Court judge’s 2010 decision that state officials were unconstitutionally sentencing people with mental impairments to death, among other issues. Kentucky passed a law in 2022 prohibiting the death penalty for defendants with severe mental impairments.
Kentucky Attorney General Russell Coleman recently filed a motion in state court arguing that Kentucky has addressed its problems with the death penalty and should resume executions.
‘An unusual law’
Prior to 1996, federal courts frequently disagreed with the way state courts handled death penalty cases and overruled the lower courts’ decisions.
Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in the wake of the Oklahoma City Bombing with the intention of speeding up executions by limiting the ability for defendants to postpone executions with frivolous appeals. But in practice, Olson-Gault said the law has bogged down death penalty cases with technical arguments instead of questions about guilt or innocence.
“I don't think the ‘effective’ part of the effective death penalty act has certainly played out in the way it was intended,” Olson-Gault said.
The law has frustrated federal judges since at least 2000, when Justice John Paul Stevens wrote in a dissenting opinion that AEDPA should not require federal judges to defer to state courts “as if the Constitution means one thing in Wisconsin and another in Indiana.”
U.S. District Judge Amul Thapar referenced the law when he denied Sanders’s 2016 request for federal review of his case, calling it “an unusual law.”
“[The law] contemplates that a federal judge might realize that a prisoner’s constitutional rights have been violated but nevertheless forbids the judge from granting habeas relief based on that realization alone,” Thapar wrote.
Attorneys, judges and scholars have argued that the deference to state courts violates federal courts’ responsibility to interpret the Constitution. Now — in the wake of a recent U.S. Supreme Court decision — the door is open to challenge AEDPA, according to James Liebman, a Columbia Law School professor.
In a forthcoming article for the Columbia Human Rights Law Review, Liebman examines the Loper Bright decision, in which the Supreme Court in June overturned a long standing legal doctrine that said federal courts were to defer to reasonable decisions made by government agencies, even if the courts thought those decisions were wrong.
The Supreme Court ruled that the doctrine relegated federal judges to the sideline, restricting their ability to shape federal law. The deference to federal agencies was unconstitutional, Supreme Court judges argued, because federal courts had a responsibility to intervene when government agencies made wrong decisions.
Liebman and co-author Anthony Amsterdam argue the same reasoning the Supreme Court applied to that case should apply to AEDPA.
The professors write in their article that required deference to state court decisions in death penalty cases “continues to relegate criminal defendants to prison or death” even when federal judges believe lower courts made mistakes.
“There is no way to understand AEDPA deference other than as a withdrawal of that duty from the federal judiciary on the theory that it has been delegated to the judges of every state and has been appropriately exercised by them whenever it is dressed in the wispy gauze of a possibility of reasonableness,” the professors wrote.
Barron’s petition for federal review of Sanders’s case appears to be the first test of this theory in federal court, according to Olson-Gault, who trains and assists capital defense attorneys across the country.
Barron argues that the reasoning applied by the Supreme Court in the Loper Bright case applies to AEDPA because “in both instances, judges have been required to abdicate their responsibility to interpret and apply the law.”
Kentucky Attorney General Russell Coleman, in court filings, said the Loper Bright decision is not applicable to AEDPA, and that the law doesn’t bar federal courts from intervening if they spot blatant violations of the Constitution.
Attorneys with the U.S. Department of Justice agree with Coleman.
Oral arguments for the case are scheduled for January.
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