In a spring article in The Michigan Law Review, Reinhardt writes that the court has fashioned “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.” The maze has expanded since Alito succeeded Justice Sandra Day O’Connor in 2006, moving the court to the right on criminal justice, among other issues. Over the course of the court’s 2007-13 terms, Reinhardt found that the Supreme Court had ruled against prisoners in all but two of the 28 habeas petitions it had considered.

Judge Kozinski, for his part, attacks the law in a preface to The Georgetown Law Journal’s Annual Review of Criminal Procedure, which is remarkable in the breadth of its criticism of the American criminal justice system. Kozinski, a Reagan appointee, has voted to uphold many criminal penalties, including death sentences. But viewing the law from the perspective of the federal bench, he writes, “we now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

By way of example, Kozinski points to the Ninth Circuit’s 2006 review of the conviction of Shirley Ree Smith, who was sentenced to 15 years to life after she was found of guilty of shaking her 7-week-old grandson, Etzel Glass, to death in 1996. There was no evidence that Smith had previously mistreated Etzel in any way. And while he had subdural bleeding in his brain, it was minimal, and only one of the three symptoms classically associated with shaken-baby syndrome, a diagnosis that has become increasingly controversial.

The California Supreme Court declined to review Smith’s case. When it reached the Ninth Circuit, the three judges who reviewed her habeas petition said they approached it “with a firm awareness of the very strict limits that the Antiterrorism and Effective Death Penalty Act places” on federal courts. Still, the Ninth Circuit judges looked at new medical evidence that called into doubt the validity of Smith’s conviction, found that “there has very likely been a miscarriage of justice in this case” and released her from prison, where she had already spent 10 years. In 2011, the Supreme Court reversed the Ninth Circuit, over a strong dissent from Justice Ruth Bader Ginsburg (joined by two other justices), saying that the appeals court had run afoul of the law. The following year, Gov. Jerry Brown commuted Smith’s sentence to time served.

The Antiterrorism and Effective Death Penalty Act is also at the heart of one of the most disputed death-penalty cases of the last decade. Troy Davis was convicted in Georgia of killing an off-duty police officer who came to the aid of a homeless man in a Burger King parking lot. After the Georgia courts denied Davis’s appeals, he went to the federal courts with a habeas petition, describing new evidence of his innocence: Seven of the nine eyewitnesses who testified against Davis at trial had recanted, and new witnesses implicated someone else, whom the police ruled out as a suspect early in their investigation. Procedural rules barred Davis from bringing this evidence on appeal. The United States Court of Appeals for the 11th Circuit ruled that he could not have a hearing for his new evidence in federal court, either.

In this case, the Supreme Court did step in and order such a hearing. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man,” Justice John Paul Stevens wrote. But the decision prompted a dissent from Justice Antonin Scalia, joined by Justice Clarence Thomas, that includes this protest: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

As many commentators have pointed out, this statement is both true and stone cold. “The proper question is, and always should have been, whether the detainee has a constitutional right to be free,” Reinhardt writes of habeas corpus. But 19 years of Supreme Court decisions based on the Antiterrorism and Effective Death Penalty Act have fundamentally narrowed the scope of habeas review, from a fight over the merits of a claim of innocence or fairness to one over narrow process issues: Has the state time limit for filing a habeas petition passed? Is the petition barred by some other rule? This is what the federal courts now spend their time parsing.