71 Fla. L. Rev. 1481 (2019)
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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
has contributed to long-standing complexities in our understanding of
habeas corpus and its function as a device for judicial inquiry into the
constitutionality of imprisonment. Since its passage and subsequent
interpretations by Congress and the courts, criminal defendants have
faced heightened challenges in seeking federal review of their state
convictions. The United States Supreme Court has yet to recognize a
concrete right to counsel for post-conviction proceedings—during which
most criminal defendants file their habeas petitions claiming, for
example, ineffective assistance of trial counsel—meaning that a large
number of defendants file their petitions without the aid of competent
counsel. A criminal defendant in this position risks defaulting his right to
litigate the merits of his habeas petition if represented by an attorney
without the requisite experience in the procedural difficulties of habeas
corpus at the state and federal levels and in the interplay between the two
court systems.

This Note discusses these procedural deficiencies and their grave consequences against the backdrop of AEDPA’s opt-in provisions. These
provide that should a state hold itself out to the United States Attorney
General as having in place an adequate mechanism for providing counsel in post-conviction proceedings, that state then has the opportunity to opt into AEDPA and receive expedited federal review of capital habeas petitions originating in the state. These provisions were instituted in an effort to liberate the federal docket from consideration of frequent state habeas petitions. But in its delegation to the Attorney General of this
decision-making authority, Congress failed to provide comprehensive
criteria by which the states and the Attorney General may assess the postconviction mechanism of any given state and the attorneys that comprise it. Implicit in this unintelligible delegation of legislative authority is an unacceptable endorsement of unfettered Attorney General discretion in deciding which states may qualify for quickened and arbitrary review of capital habeas petitions.

With lives on the line and criminal law reform at the forefront of the nation’s conscience, Congress should revisit AEDPA’s opt-in provisions and provide clearer guidelines by which a state may model its post-conviction proceedings to benefit from expedited federal capital habeas processing. Providing such a framework would reorganize the country’s priorities away from an emphasis on an “effective” death penalty and towards the importance of providing criminal defendants, especially capital defendants, with adequate post-conviction counsel. This would ensure that state courts litigate habeas petitions to the fullest extent by lawyers experienced in complex habeas corpus proceedings before such proceedings ever need to reach federal review. If states truly desire the proposed benefits of opting into AEDPA, they must first provide their capital defendants with the tools and competent representation that they deserve and that the Constitution ensures.