Unreasonable Praise For a Bad Law

For all his accomplishments, President Clinton's strategy of running to the right on crime issues left a notorious legacy known as the Anti-Terrorism and Effective Death Penalty Act of 1996. It purported to make the death penalty "effective" by placing restrictions on federal judicial review of state criminal convictions. The AEDPA requires prisoners to petition the federal court within one year after their state convictions become final (generally when the direct appeal process has been taken to its end) and bans review of most issues that prisoners attempt to raise in successive petitions. The Supreme Court upheld the constitutionality of the latter restriction on the theory that it did not suspend habeas corpus but merely required prisoners to make all their claims for relief at one time.

State prisoners who are unaware of the one year limitations period for federal review often lose their right to habeas relief. Because prisoners seeking federal review generally have no right to a lawyer, those who are aware of the time limit often file their own woefully inadequate petitions. If, a couple of years later, the prisoner's family comes up with the money to hire a lawyer, it's often too late, even if the prisoner was unaware that serious constitutional violations deprived him of a fair trial.

The AEDPA was supposed to make the death penalty "effective" by allowing states to kill death row inhabitants more efficiently. It hasn't worked. [more ...]

The Death Penalty Information Center reprints a chart sourced to the Bureau of Justice Statistics showing that the average time between sentencing and execution has increased since 1997.

Death row inmates in the U.S. typically spend over a decade awaiting execution. Some prisoners have been on death row for well over 20 years.

For whatever reason, the AEDPA hasn't brought about the speedy executions that Congress considered the measure of an "effective" death penalty. That didn't stop Oklahoma Attorney General Drew Edmondson from telling the press:

"It was unpredictable before,” Edmondson said. "You never knew when the end of the appeals process was going to come. It was very frustrating to victims and their families.”

When a prisoner will die is still unpredictable, even in Texas where executions move with the greatest haste. Perhaps Edmonson believes "predictability" resulted from the most vile AEDPA provision, the one that requires federal courts to remedy constitutional violations (usually by ordering the inmate's release unless a new trial produces another conviction) only if the violated right has been "clearly established" by the Supreme Court, and even then only if the state court's application of the law was not just incorrect, but unreasonable. A right that has been clearly established by all the lower courts won't do. And even if the Supreme Court has spoken clearly about the right's existence, constitutional violations go unremedied if the state appellate court misunderstood the law but its incorrect interpretation was reasonable. That provision made it "predictable" that many fewer habeas petitions would be granted.

Can you imagine sitting in prison and listening to your lawyer tell you: "The good news is that the federal court agreed with us that your constitutional rights were violated during your trial, and that the state appellate court made a mistake when it affirmed your conviction. The bad news is that the federal court thought the state appellate court's mistake was reasonable, so you're not getting a new trial."

"You mean," says the inmate, "I should have won a new trial on my state appeal, but I don't get one now even though my rights were violated?"

That the answer is too often yes is the sad legacy of the Clinton administration. And since the AEDPA's restrictions apply to all federal reviews, not just those in death penalty cases, it's a legacy that hurts a huge number of prisoners every year who lose their day in federal court. (To be fair, most Democrats in Congress were eager to embrace Clinton's "tougher than the Republicans on crime" strategy, including current VP Joe Biden. The AEDPA passed overwhelmingly.)

Additional TalkLeft commentary about the AEDPA is collected here.

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  • Display: Sort:
    Is there a majority to nullify the law? (none / 0) (#1)
    by koshembos on Mon May 04, 2009 at 08:50:12 AM EST
    I'll be surprise to hear that the mode in congress has changed. They still, probably, are blood thirsty as they used to be. The embarrassing :law and order" is still the slogan of the land.

    I very much doubt it (none / 0) (#5)
    by TChris on Mon May 04, 2009 at 12:35:26 PM EST
    and I very much doubt that Obama would encourage it.  Liberal Dems like Kennedy supported AEDPA.  Kennedy also supported the sentencing guidelines (for reasons that seemed liberal at the time) and never acknowledged that they didn't work out as planned.  I don't think there's close to a political majority in support of amending the worst parts of AEDPA -- nor will there be until after legislation viewed as having a higher priority is enacted (budgets and bailouts and other "save the economy" legislation, health care, and a couple of wars top the list).  Even then I'm not placing money on Obama or Congress to give AEDPA much positive attention.  The single paragraph in the White House website's "agenda" dealing with criminal justice reform talks about hate crime legislation and drug courts and reintegration of offenders who finish their sentences.  Although this is an improvement over the standard Republican "tough on crime" agenda, there's nothing there about giving state prisoners more meaningful access to the federal courts.  I think we were fortunate to get Obama to shift the executive branch's position on the crack/powder cocaine disparity so soon into his first term -- but that's a criminal justice issue that (ulike AEDPA) has been front-paged for some time.

    Senate votes against in 1996 (none / 0) (#2)
    by Ben Masel on Mon May 04, 2009 at 09:10:55 AM EST
    Byrd (D-WV)
    Feingold (D-WI)
    Hatfield (R-OR)
    Kennedy (D-MA)
    Moseley-Braun (D-IL)
    Moynihan (D-NY)
    Pell (D-RI)
    Simon (D-IL)

    a political circus (none / 0) (#3)
    by joze46 on Mon May 04, 2009 at 09:39:38 AM EST
    For me being a rookie at this, something always was in the cosmic relay that Bill Clinton the son of a used car sales man that had little to no political connection from the beginning but will eventually become hardwired to America's turmoil of the culture of greed and money, placed himself in a political circus.

    It is now a firm argument, for me, that Clinton did something very important intellectually in terms of terrorism even though America went through a Mainstream Media rant claims Clinton did nothing about terrorism, especially by those at MSNBC, CNN, and Fox for the past decade. The argument is lost totally shallow by those right wing concerns when we understand that Clinton maneuvered through a vindictive Republican controlled Congress supplemented by a "Specter Switch Effect of Democrats to republican" at the time. Here I make the argument that this was the beginning to solve terrorism without torture.

    By this I mean what ever Clinton would not sign could easily be over ridden. Perhaps as suggested as pitiful as it might be but a start into an intellectual design for real aggressive understanding to resolve terrorism. Of course this reasoning was totally rejected by the military industrial complex with leadership introduced by Bush and Company America's proxy leadership for the Arab Wahabbi.  

    With an intended wide open door at the Air line periphery given to foreign extremist intrusion abilities America's Bush leadership with intended deception and total knowingly ignored breaches in this security happened to let twenty extremist Arab and one Egyptian to sacrifice their life for corruption creating 911. It is so clear, to me; the more the media claims to talk their way out of this mess the more they reveal they are core parts of it in complicit total deception.  

    This is exampled by the extraordinary political scuttle butt of the time that Banking bill the Glass-Steagall Act of 1933 was repealed by the Gramm-Leach-Bliley Act and signed by Clinton.  From what I understand the Gramm-Leach Bliley act simply removed huge restrictions by the Glass Steagall act.

    Here, in a sense Congress put it to Clinton to pass it or easily over ride his veto. Plus the same history shows a huge Democratic approval with it. For me Clinton had an ugly time of it from both parties, where this period introduced the fundemental tragedy.

    One could say an intellectual form of forensic tool can show glowingly the Contract with America is the now known toxic asset banking derivatives, forming the so called zombie banks. Predator loans taking money, in secret, from the Federal Reserve and Treasury in trillion dollar steps.

    The crime of the century by our members in Congress and the Senate also include the Federal Reserve and Treasury. An extraordinary base of mass corruption and cover up any time in government by political long timers, exactly what Obama said of those business people who betrayed the American worker? No, Obama was kind to leave out those long time foreign and domestic politicals and business people that betrayed American worker.

    "Unreasonable praise" sounds like a Rush Limbaugh term, no offense to TChris, but when one listens to Limbaugh for twenty years to understand that Rush was behind the EIB golden microphone likely with a teleprompter coached by scores of right wing hypocrites, sending notes and clever prompts in real time that twist into confusion sounding off as news all while hiding behind the shield of the first amendment plus laughingly saying this is just entertainment with that something saying he has talent  "On Loan From God" stuff. Many will agree that is a toxic loan.        

    The balance of power ... (none / 0) (#4)
    by Salo on Mon May 04, 2009 at 10:20:13 AM EST
    ... that sliver of 5-7% of the swing vote in the electorate never really votes for change.  It votes how it is told to by the media--every time. be it Reagan or Bush or Obama.

    If anything Obama's election probably locks in the status quo , on tough handling of prisoners, more effectively than any other candidate. It's counter intuitive but Obama has turned out to be the career centrist's wet dream. Be it in law enforcement, education, foreign policy/war or healthcare I really don't see much positive stuff going on--the GOP were crushed but all Obama has actually done is fork over wads of money to banks.

    Specter's switch is typical of this mired state of affairs.  Here's a guy who is out to personally survive and would have been out of the way after the GOP primary, for some reason Dems and liberals have been toasting this defection. You actually think this'll help with healthcare reforms or fixing terrorism laws? Same with Biden, how the hell is he there making decisions and influencing the debate again? He wanted to turn Iraq into a canton based state! yikes.  He traded on xenophobia 2001-2006 until the electorate turned on the GOP. How the hell are we back to Specter, Biden and Lieberman running everything again?  Tell me please.

    It's like Rip Van Winkle woke up and George III was still King.

    The rhetorical question (none / 0) (#6)
    by jondee on Mon May 04, 2009 at 12:48:34 PM EST
    why do Dems keep having to run to the right on certain entirely non-trivial issues?

    As someone else said, the forces of destruction are well organized -- and we aren't (the price of indivualism, maybe.)


    Because winning isn't everything... (none / 0) (#7)
    by kdog on Mon May 04, 2009 at 12:51:26 PM EST
    it's the only thing, to quote ol' Vince.

    Carville says the Dems will be in power for 40 years, unfortunately we the people will find it difficult to tell the difference from Republican rule.


    Hey kdog, on vaca last week? (none / 0) (#8)
    by sarcastic unnamed one on Mon May 04, 2009 at 12:53:28 PM EST
    Yeah man... (5.00 / 1) (#10)
    by kdog on Mon May 04, 2009 at 12:57:26 PM EST
    just plugging back in to the matrix today...I couldn't have planned a better time if I wrote a script before I left.  I'll share a few tales in the next open thread.

    This should be good (none / 0) (#11)
    by jondee on Mon May 04, 2009 at 12:59:12 PM EST
    What jondee said. (none / 0) (#12)
    by sarcastic unnamed one on Mon May 04, 2009 at 01:25:14 PM EST
    Well (none / 0) (#9)
    by jondee on Mon May 04, 2009 at 12:57:22 PM EST
    I like what Gary Shandling said: "People who say nice guys finish last dont know where the finish line is."