Today’s death penalty decision in Panetti v. Quarterman created a new exception to AEDPA’s ban on federal court jurisdiction over “second or successive” habeas petitions. I think Justice Kennedy is exactly right that Congress should have written such an exception; as a matter of policy, I think the Court’s new rule makes a lot of sense. But Congress didn’t actually write such an exception, and I thinik the Court’s attempt to create the new exception by judicial construction is pretty unpersuasive.
First, a bit of background. The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane. This means that lawyers for the subject may need to bring claims about the person’s sanity soon before the execution is planned; the subject may have turned insane just weeks or months before the execution, long after the subject’s habeas claims have been adjudicated. This creates a bit of a puzzle. On one hand, Congress is very interested in giving inmates just one shot at federal habeas relief. On the other hand, claims of insanity can arise at any time, and state courts may be uninterested in looking closely at those claims. The seemingly obvious solution is to create an exception to the usual rule (that inmates get only one shot at federal habeas relief) just to cover these sorts of claims.
The problem is that Congress didn’t create such an exception. Here’s what Congress said in 28 U.S.C. 2244 about federal court review of claims in habeas petitions brought the second time around:
(1) A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless