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May 6, 2016

"Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain"

The title of this post is the headline of this notable new Intercept piece, which gets started this way:

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill.  Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.”  His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”

A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing.  While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention.  For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted.  Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions.  Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.”  Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood.  AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism.  But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon.  After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton.  In the long term, it would help pave the way to one of the worst laws of his presidency.

May 6, 2016 at 08:52 AM | Permalink


Good reason to vote against Hillary. But who we gonna vote FOR?

Posted by: BarkinDog | May 6, 2016 10:12:44 AM

"For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted."

Very true. I've had lots of clients wrongfully convicted in state court who languish in prison because under AEDPA the federal courts have to defer to the state court decisions unless the decisions are off-the-wall wrong.

Posted by: Michael R. Levine | May 6, 2016 10:38:18 AM

Easy to do a rant for or against AEDPA (as the article does against AEDPA). AEDPA does not involve the constitutional writ of habeas corpus but rather the collateral review authorized by federal law. Given that the norm in civil cases is that lower federal courts do not review state court decisions, one can debate how much collateral review we want in criminal cases. For every colorable case that fails due to AEDPA, there are a large number of frivolous state habeas petitions filed in federal court. The lines drawn in AEDPA are, of course, debatable. Given the length of state review processes (in my state at least three years for direct and collateral review), most inmates have more than enough time to develop any meritorious claims before the AEDPA time limits expire. Particularly, as the passage of time makes the accuracy of additional review dubious at best (as memories fade) plus increases the hardship on victims and witnesses, it makes sense to adopt rules that fit the typical case while leaving some exceptions for the rare case. AEDPA does that.

Currently, conservatives see lots of loopholes in AEDPA that they would like to close even more -- federal courts taking too long to resolve habeas petitions and some judges just not following AEDPA on cases that would be close calls even with purely de novo review. Liberals want to roll back the clock on AEDPA. From a centrist position, AEDPA probably needs some tweaks, but is not the disaster that articles like this want to make it out to be.

Posted by: tmm | May 6, 2016 11:10:18 AM

I'm with TMM on this issue.

Posted by: Daniel | May 6, 2016 11:32:41 AM

"Good reason to vote against Hillary."

Because twenty years ago her husband signed this into law?

I'm wary about the law but understand tmm's comment ... it's net results from my vantage point don't warrant the apocalyptic tones sometimes used. This doesn't mean it is necessarily a good thing -- I have read those who do habeas work for a living explain the result is something of a mess -- but "gutting" etc? eh.

Posted by: Joe | May 6, 2016 11:44:06 AM

Of course, all the libs cheerlead when AEDPA is blown off by 'rat judges.

Posted by: federalist | May 6, 2016 6:55:56 PM

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