25 Years of the AEDPA: Where do We Stand?
Let’s take a look at what led up to President Bill Clinton signing the AEDPA into law on April 24, 1996, and the damage it has done over the last 25 years.
AEDPA Was a Symbolic Law
Scholars to weigh in on the AEDPA have largely agreed that the law wasn’t needed. At least, not to curb prisoners successfully challenging their convictions and sentences under federal habeas corpus. The courts themselves had a handle on the perceived problem, establishing their own rule through decisions on what they said were abuses of the Great Writ by prisoners. The following is a list of decisions by the Supreme Court in an effort to prevent habeas corpus abuse, prior to the AEDPA:
• Wainwright v. Sykes, 433 U.S. 72 (1977) (must show “cause and prejudice” for federal habeas court to hear claims not properly raised earlier).
• Summer v. Mata, 449 U.S. 539 (1981) (deference must be afforded to state court decisions).
• Rose v. Lundy, 455 U.S. 509 (1982) (requiring “total exhaustion” of claims in state court before moving to federal court).
• Barefoot v. Estelle, 463 U.S. 880 (1983) (requiring a “substantial showing of the denial of a federal right” to appeal habeas denial).
• Teague v. Lane, 489 U.S. 288 (1989) (limiting retroactivity of new Supreme Court decisions on habeas review).
• McClesky v. Zant, 499 U.S. 467 (1991) (preventing more than one habeas petition without good cause).
• Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) (must show “cause and prejudice” to obtain evidentiary hearing in federal habeas court).
• Brecht v. Abrahamson, 507 U.S. 619 (1993) (establishing strict “substantial and injurious effect” standard of review for habeas).
These are only some of the cases the Supreme Court handed down to limit habeas review by (mainly) state prisoners before Congress crafted the AEDPA. While a Supreme Court decision is binding on all federal courts, it is not set in stone. In each of its decisions limiting habeas, the Supreme Court left open some discussion of the lower courts to bypass the rules when relief was required. But the problem with Congress codifying these decisions under the AEDPA, making them statutory requirements that courts must follow, is that it removed all discretion from the courts in granting habeas relief. Scholars say this was not necessary as courts very rarely granted habeas relief before AEDPA.
The AEDPA also unnecessarily, and arguably unconstitutionally, hindered prisoners’ access to the habeas corpus remedy. When this was brought before the Supreme Court in Felker v. Turpin, 518 U.S. 651 (1996), the Court held that because an original writ of habeas corpus may be filed in the Supreme Court itself, the AEDPA did not unconstitutionally suspend the writ. In other words, the Court that chooses which cases it wants to hear, which is maybe 60 or 70 per year out of over 10,000, said that the almost impossible chance it would hear a habeas petition was enough to consider the habeas path still viable despite the AEDPA’s numerous roadblocks.
So, why did Congress push so hard to enact laws to prevent prisoners from habeas relief? The year prior to Clinton’s signing the AEDPA into law, Timothy McVeigh blew up the federal building in Oklahoma City. And prior to that, guerrillas attacked the World Trade Center in 1993. The AEDPA was a combined effort of the Democratic Executive Office and a Republican Senate. Clinton wanted to enact a law to fight terrorism, and the Senate wanted a law to kill habeas relief and the appeals, it said, that delayed the death penalty. They compromised and came up with the AEDPA which passed as a budget rider with little debate.
Clinton then sold the bill to the public, emphasizing that it would speed up the death penalty for McVeigh (who welcomed a speedy execution, anyway), and fight “terrorism.” Politicians rode the wave of popularity during the tough-on-crime era by supporting the AEDPA. Then senator and now president Joseph Biden, was a huge backer and supporter of AEDPA. It was such a rushed and poorly drafted bill that Clinton remarked in a statement upon its signing that he hoped “the federal courts will interpret these provisions to preserve independent review of federal legal claims.” That didn’t happen. Instead, Supreme Court justices openly complained about how bad the language was. “In a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting,” Justice Souter said. Justice Scalia, an authority on statutory interpretation, asked in open Court, “Who is responsible for writing this?” Congress’ rush to erect roadblocks to habeas relief now eats up the time it was supposed to save federal courts, by requiring them to interpret such a badly written law. Yet at every turn, the Supreme Court has upheld AEDPA, poorly drafted or not, killing death row prisoners and leaving sentences intact is a judicial and political priority.
Congress included all prisoners in the AEDPA’s restrictions as part of its hatred for poor people accused of crimes and the thought that they may successfully assert their constitutional rights with regards to criminal trials. Of the sparse legislative history available on the AEDPA, most of the discussions centered around speeding up the death penalty. Oddly, the one-year statute of limitations was a last-minute addition that had no basis in prior Supreme Court decisions, and most scholars agree it was not needed. That is because the doctrine of laches had applied, meaning that a court could dismiss a habeas petition filed too late if its lateness would prejudice the government or state. In an unexpected result, the statute of limitations actually increased the number of petitions filed by prisoners, out of fear they would be forever barred from filing for relief if they did not do so within the one-year limit. This has forced the courts to address kitchen-sink petitions, perhaps wasting more of the courts’ time. But given the perfunctory review the vast majority of prisoner petitions receive, especially pro se petitions, maybe not.
One thing the statute of limitations did do was bring forward the issues of finality. While it had always been a concern of the federal courts to ensure that final decisions of the state courts remained final and not overturned on federal habeas review for just any old reason, the courts seized on the statute of limitations as a way to say that Congress did so to promote finality. However, there’s nothing in the record to support this assumption.
Actually, the record supports not applying a statute of limitations to federal prisoners. Rep. Robert Kastenmeier was quoted in opposition to such time limits: “There is no evidence that section 2255 motions are delayed in the current system.... The same concerns for the interests of the states are simply not present in this different context.” While this was a statement about a proposed 90-day time limit for federal prisoners filing under 28 U.S.C. sec 2255, it’s what led to the arbitrary one-year limit under the AEDPA.
Where’s the “Anti” in Antiterrorism?
AEDPA was enacted in 1996 and the biggest terrorist attack in U.S. history happened five years later, with thousands of Americans killed in the 9-11 attacks on the World Trade Center towers. Some scholars have pointed out that the “anti” in the antiterrorism part of the AEDPA was merely “lip service” by politicians. The one thing AEDPA did do was provide billions of dollars to local law enforcement agencies in an effort to militarize local police in support of making drug arrests. The AEDPA provides pages and pages of provisions to help law enforcement fight the so-called “war on drugs.” Since then, even though that “war” has been declared a total failure, police forces remain heavily militarized across the country. At the time, PLN reported that AEDPA only succeeded in terrorizing American prisoners. Twenty five years later, that seems to be an accurate assessment.
Congress also gave the government nearly unfettered authority to dig into citizens’ private affairs. Citing the need to prevent terrorism, Congress began the process of letting the government spy on all citizens. These permissions have since blossomed into more laws abridging the privacy rights of U.S. citizens. And much of it started with the AEDPA.
The AEDPA also added new criminal laws to fight terrorism. Those now found guilty of providing “material support” to a terrorist organization face lengthy prison terms. This includes anyone who sends money to suspected terrorist organizations or travels to meet with them in support.
The Myth of an “Effective” Death Penalty
When you think of the word “effective,” do you imagine something that achieves its intended purpose? Apparently, Congress defines “effective” differently from the rest of society. Sure, Congress said the right things to make it seem like it was speeding up the death penalty with the AEDPA. “Nothing has done more to undermine public confidence in our system of justice in this country than the interminable delays in carrying out sentences of death,” one congress person said. Numerous others echoed the same sentiments, all agreeing to end delays in the death penalty. Killing people accused of crimes seems to be of paramount importance to many American politicians. Regardless of whether the executed received a fair trial or are in fact innocent. PLN is of the opinion that nothing has done more to undermine public confidence in the criminal justice system than the thousands of exonerations of factually innocent people wrongfully convicted by the very system AEDPA seeks to shield from scrutiny.
But the AEDPA did not speed up the death penalty. Since the AEDPA was enacted in 1996, the wait time on death row has literally doubled. In 1996, the time between sentencing and execution was an average of just over ten years across the US. By 2018 it was just over 20 years. In fact, the shortest wait times until execution were almost entirely in the years prior to the AEDPA. The Act did nothing to speed up the death penalty.
Congress also made the death penalty less “effective” by slashing millions of dollars from the budgets of death penalty defense centers, just prior to passage of the AEDPA. At first look, stripping a defendant of proper counsel in a death penalty case may seem like a slam-dunk for prosecutors. But the aftermath creates more work for the courts and longer delays before the death sentence becomes “final” to move forward with the execution. Depriving defendants of skilled defense counsel does indeed lead to more executions. Some have noted one effect of the death penalty is finding out who has the best attorney.
Thankfully, the death penalty was not sped up by the AEDPA, saving the lives of innocent prisoners. One study found that over 40 percent of death sentences were overturned on appeal because of errors. Most disturbingly, the study found that 42 percent of the erroneous convictions in death penalty cases were from government misconduct. For this reason, scholars have said that a robust habeas corpus remedy is needed as a quasi-quality assurance system to hold the government accountable.
It was also revealed shortly after the AEDPA became law that the public was duped into thinking that it would speed up the execution of McVeigh, the man who called the children he killed “collateral damage.” The family member of a victim was quoted by one Congress person in support of the bill, “The murderers who committed this crime should be executed as soon as possible, not in 15-20 years. My father will not get to live another 15-20 years so why should the convicted?” President Clinton was quoted as saying, “We need to cut the time delay on the appeals dramatically... so that it would apply to any prosecutions brought against anyone indicted in Oklahoma.”
But the AEDPA had no real effect on McVeigh’s death sentence. The AEDPA, it was noted, was designed to speed up state death sentences. The Oklahoma City bombing was a federal case. Congress members said that delays in executing people “undermined” trust in the criminal justice system, yet they did not seem too concerned that lying to the public might also harm the public’s trust in the system.
The AEDPA has Fueled Mass Incarceration
By severely restricting habeas relief to prisoners, the AEDPA has been a very modest factor in keeping the nation’s prisons full. While prisons were already operating above capacity prior to the AEDPA, things got even worse in the years following. For example, the rate of imprisonment before the AEDPA was about 500 prisoners per 100,000 adults in the U.S. In the years since the AEDPA, that rate shot up to almost 700 per 100,000 U.S. adults. Only recently has that rate started to decrease, mainly because of Congressional action to reform the sentences imposed under unfair drug laws, and because of states releasing non-violent prisoners and legalizing some drugs to reduce prison crowding. Given the rarity of criminal convictions being overturned with federal relief prior to the enactment of AEDPA, it is unlikely that it has had much effect, if any, on the millions of people caged in prisons and jails each year.
The AEDPA also created formidable barriers for prisoners seeking relief, nearly all of whom do so without a lawyer. Habeas corpus often comes down to getting around numerous procedural bars and rarely do the courts address prisoners’ claims on the merits, as scholars have pointed out. The procedural obstacles are an easy way for prosecutors to make quick work of a habeas petition, no matter the importance of the constitutional problem raised. After the AEDPA, courts do not have the discretion to ignore those procedural bars like they had when those obstacles were made by a judge. And thanks to procedural bars, the success rate for habeas petitioners is not even one half of one percent in federal court.
After 25 years, the Antiterrorism and Effective Death Penalty Act has been a total success in ensuring the vast majority prisoners are unable to seek a review on the merits of their constitional claims related to criminal convictions. It has neither sped up the death penalty nor stopped terrorism but it has helped keep a lot of non death sentenced prisoners who have nothing to do with “terrorism” locked in cages. Indeed, the death penalty wait time doubled and the worst terrorist attack in U.S. history occurred after the AEDPA. Congress’ rush to pass the AEDPA put a severe, but short term, burden on the courts to interpret its shoddy language, negating any effect the AEDPA had on reducing habeas petitions by prisoners—its intended goal. Still, the courts continue to uphold the AEDPA as necessary for a fair criminal justice system. As the saying goes, “You can’t make this stuff up.”
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