On April 24, 2016, the Antiterrorism and Effective Death Penalty Act (AEDPA) became 20 years old, and Hillary Clinton was running for President. During her campaign, criminal justice reform was a topic for debate, and she seemed dead serious about it. But I didn’t think she really was. Hillary is a smart lawyer. She was with her husband when AEDPA was signed on the White House lawn in 1996. She knew what AEDPA meant when it was signed, and so did her husband.

AEDPA was purportedly enacted in 1996 as a tough, quick response to the Oklahoma City Bombing, and strong response to terrorism on our home soil. The emphasis President Clinton stressed about AEDPA was that would eliminate long, drawn out death penalty appeals, so that people like Timothy McVeigh, perfect candidates for the death penalty, would receive swift justice. Or so it seemed.

AEDPA has been law for a long time now. It has absent from recent debates over criminal justice reform–seen as necessary by Democrats and Republicans alike–despite that its impact in shutting the down the rights of prisoners to challenge the constitutionality of their detention—and to establish their innocence—remains overwhelming. It has cut off the possibility for relief for most state prisoners who need an avenue to prove they were wrongfully convicted. While most Americans may be unaware of the enormous wrong AEDPA has inflicted on prisoners whose federal constitutional rights have been violated, or on those whose convictions are a miscarriage of justice because they are innocent, some federal judges and other scholars recognize the serious damage it has done to these Americans, and have begun to call for its repeal.

I believe the majority of Americans do not know about AEDPA; that it is a horrific law that removed federal review of constitutional violations that still occur regularly in state and federal prosecutions and in other venues. According to author Liliana Segura, “AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism [that was ostensibly the concern of AEDPA]. But the law was also the product of an administration that long before the Oklahoma City attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as a political weapon.”[1]


The Clinton administration, in ratifying the provisions in the AEDPA that strangled the right of habeas review, knew what it was doing. And it planned to do this before Timothy McVeigh left his bomb in Oklahoma City. Indeed, Clinton had been fairly preoccupied with showing he was tougher on crime than the Republicans were, and that meant he had to go pretty far out there. His 1994 crime bill had done much to show he was not soft on crime. But when the GOP gained control of Congress in the 1994 midterm elections and threw some more bait, Clinton took it, and started to go even further. He was urged on by some advisors who were far too young to conceive of the true ramifications of the habeas strangulation they advocated.


Liliana Segura tells the story of the petty political gamesmanship that preceded AEDPA. In the mid-1990’s, Clinton saw it as a good political move to grow tougher on crime, as Segura discovered through confidential White House memos that were only released in 2014. Some of Clinton’s criminal justice strategies prior to Oklahoma City were proposed by very young advisors during Clinton’s face-off with Republicans in advance of the 1996 elections. Because the Republicans gained control of Congress in the 1994 midterm elections, they were preparing a new crime bill of their own, and attacking Clinton’s 1994 crime bill as a fake, among other things, in an effort to steal his thunder.


One 1994 memo, written by Department of Justice lawyer Ron Klain, indicates that the new GOP bill was going to take apart Clinton’s crime bill’s major features. Klain wrote that the Republicans’ goal was purely political, and that it was an effort to take away the best Clinton achievement on crime. Klain worried about the Republican’s hopes to ruin the crime bill’s prevention programs, and their effort to deprive Clinton of the opportunity to award communities all over the nation their shares of the 100,000 new police officers in his 1994 bill, which had been Klain’s idea. Klain, a young lawyer who worked for Janet Reno, had been working to pass the 1994 crime legislation since he was in his 20s. The youngest chief counsel to the Senate Judiciary Committee,  Klain was credited as the man who successfully steered passage of Clinton’s 1994 crime bill—the bill that had broadened “three strikes,” added money to prison building, and greatly expanded the death penalty. One wonders what Clinton had to fear from the GOP’s effort after such a crime bill passed.


But in his memo pondering ways responses to the Republicans’ new crime bill, Klain advised that the White House should welcome Republican efforts to build on 1994’s crime bill by folding the GOP’s provisions into new democratic legislation that advanced the administration’s top priorities. If the GOP bill passed, it should be a “win” for the White House, Klain believed. Klain attached to his memo an outline of a possible new democratic crime bill, attaching to his memo a chart comparing his new bill to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion dollar cut in prevention programs, reallocating $700 million to new juvenile prisons, putting more cops in schools, and creating tougher truth in sentencing laws. In some areas, Klain’s outline was harsher than the GOP legislation. It broadened the range of offenses for which juveniles could be tried as adults, and enhanced penalties for lesser drug crimes.

But most importantly, Klain’s proposal revived an idea already favored by Clinton and his foes in Congress: Habeas corpus reform, a plan that had been cut from the 1994 crime bill. Klain’s proposed reforms would limit death row inmates to a single habeas petition to be filed within strict time limits, while providing the inmate with competent counsel to assist in preparing this single filing.

In any case, Klain’s outlined bill never came to pass; he left the DOJ the following year. Still, his tough on crime ethos stuck like glue, that is, in the realm of Habeas reform.

On April 19, 1995, Timothy McVeigh blew up the Alfred P. Murrah Federal Building in Oklahoma City. Clinton no longer needed PR events to advance his strategies about countering the GOP on crime bills. The President took on the mantle of keeping Americans safe from terrorists and criminals. And Congress vowed to pass a counterterrorism bill by Memorial Day, dropping its work on the GOP crime bill.

But Habeas reform was an idea that Clinton would not abandon now. Clinton went on 60 Minutes on the Sunday after the Oklahoma City Bombing. He told Ed Bradley that his 1994 crime bill expanded the death penalty for purposes just like Oklahoma City, and he hoped the perpetrator would be executed. He also called for speeding up death penalty appeals, adding that Congress had the opportunity “this year” to reform Habeas Corpus proceedings, and he hoped that it would do so. The Habeas reform ball was rolling now on a national level.

While the relationship between shortening appeals for state prisoners and speeding up death penalty appeals in federal terrorism cases remained dubious, state prosecutors openly applauded Clinton’s remark.

Almost a year later at the signing ceremony held April 24, 1996 on the White House’s South Lawn, Clinton addressed the families of those who had died at Oklahoma City, saying:

“We send a loud, clear message today all over the world, in your names.  America will never surrender to terror.”

Then he signed AEDPA.

Segura says that today, AEDPA has “long been eclipsed as a counterterrorism measure by the USA Patriot Act, which was built on its foundations.  *  * *  But for people in [state] prison, its legacy has been sweeping and harsh. For all the rhetoric that accompanied the signing of AEDPA, it has been most severely felt by state prisoners with no connection to terrorism – and especially those who insist they are innocent.”

But Clinton was warned about the dangers AEDPA posed for state prisoners before he signed it. It was Clinton’s call to speed up the death penalty days after the Oklahoma City bombing that began the climb toward enactment of the draconian changes for state prisoners that ended up in AEDPA. A measure brought forward by Senate Judiciary Chair Orrin Hatch as part of the new anti-terrorism bill introduced by Bob Dole was a significant incursion into traditional habeas law affecting state prisoners. In particular, it had provisions that required federal courts to give higher deference to state courts and made it harder for federal courts to grant evidentiary hearings. As a practical matter, these two provisions combined would eliminate federal habeas hearings, one White House lawyer warned. That same lawyer was alarmed because these provisions meant that the president would have to accept highly objectionable Habeas provisions just because they were tied to the new counterterrorism bill.

Clinton’s call as early as his appearance on 60 Minutes just after the attack may have forced his hand. At first, he stood his ground against the Hatch proposal, arguing against passing the Hatch version of Habeas reform because of the need to protect the historic right to meaningful federal review. But, according to Segura, less than two weeks later, Clinton went on Larry King Live, and reversed course. He said Habeas reform ought to be done in the context of the upcoming terrorism legislation so that it would apply to the prosecutions against anyone indicted in Oklahoma.  The Hatch proposal carried the day.

Some say that Clinton’s abrupt reversal was brought about by some visitors he had received in early June of 1995. He met with a group from Oklahoma City that included survivors of the bombing, and grieving family members, who called themselves the “habeas group.” They were lobbying for streamlined death row appeals. At the time, some in the White House were still lobbying Clinton to support a more cautious version of Habeas reform advanced by the NAACP Legal Defense Fund. But after “the habeas group” visited, Clinton rejected the cautious version, saying, “No. Oklahoma.” Perhaps that was the end of Clinton’s objections to arguments against a more cautious approach to Habeas reform.

It is hard to say what pushed Clinton to give up his objections to protection of meaningful federal review for state prisoners. However, the final question for Clinton ultimately became not whether he was going to shut down state habeas review, but how he was going to explain away the Legislation he was signing. In his pre-signing speech, when he spoke about AEDPA’s Habeas review provisions, it is more than obvious he knew the law seriously curtailed federal review of state claims. Otherwise, he would not have discussed it. He talked about the criticisms of its provisions cutting down federal review, and waxed poetic about his “hopes” and “expectations” about what federal courts would do with the new law. He spoke as if his good intentions would be a salve for the hatchet that was about to fall:

“Section 104(3) provides that a Federal district court may not issue a writ of habeas corpus with respect to any claim adjudicated on the merits in State court unless the decision reached was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Some have suggested that this provision will limit the authority of the Federal courts to bring their own independent judgment to bear on questions of law and mixed questions of law and fact that come before them on habeas corpus.

“In the great 1803 case of Marbury v. Madison, Chief Justice John Marshall explained for the Supreme Court that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Section 104(3) would be subject to serious constitutional challenge if it were read to preclude the Federal courts from making an independent determination about “what the law is” in cases within their jurisdiction. I expect that the courts, following their usual practice of construing ambiguous statutes to avoid constitutional problems, will read section 104 to permit independent Federal court review of constitutional claims based on the Supreme Court’s interpretation of the Constitution and Federal laws.

“Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when “the applicant has failed to develop the factual basis of a claim in State court proceedings.” If this provision were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which “the applicant has failed to develop the factual basis” of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court.

Preserving the Federal courts’ authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners’ rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power “to say what the law is” and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal.”

This is nice, even saccharine, language for in a President’s speech. In truth it was intended to mollify those who were rightfully worried about how the new law would curtail the right to federal review of constitutional claims. But the truth is, the President is not the Judiciary. In signing AEDPA, Clinton had no real “understanding” about how the Federal courts would interpret the provisions of section 104. He could not promise or guarantee that Federal courts would interpret the sections of 104 in accordance with the “ideal” that they have the power to “say what the law is”. Clinton was engaging in wishful thinking.

As we have seen over the years, AEDPA has repeatedly been interpreted, as Judge Stephen Reinhardt points out, “in the most inflexible and unyielding manner possible.” What Clinton spoke about at the White House signing was his emotional longing that everything would stay the same even though he had signed a law he surely feared would close off federal review for state prisoners. His speech leaves no question that he was aware of the problems AEDPA posed for state prisoners needing review of their constitutional claims. He made a speech full of hopes, then looked away.

In the end, AEDPA had little to do with Timothy McVeigh. McVeigh, who wanted to play the martyr, did not have a long, drawn out death penalty appeal. He was executed in 2001-just six years after the bombing. Just a few months after his execution, Osama bin Laden terrorized New York City, an event that was undeterred by anything in AEDPA, despite Clinton’s ringing claim that in signing it, Americans were sending a loud, clear message all over the world that they would never surrender to terror.

Today, federal court dockets remain backlogged and death row prisoners spend longer than ever awaiting execution.

Why does this all this matter now? A lot of Americans think the US Constitution tells them what rights they have, and that those are the rights they are lawfully entitled to. Those rights “belong” to them as Americans, they think. It is a nice thought. But, it has become untrue. For every right you have, someone has a responsibility to make sure you get it. Many of the rights in the Bill of Rights address what can and cannot happen if we are charged with a crime. And state police, prosecutors, attorneys, and courts routinely ignore or deliberately deprive us of our rights. Should you happen to get yourself wrongly convicted of a crime that you did not commit—and it happens far more often than you think, go ahead and try to get your federal constitutional rights to have real meaning, to give you some shelter from the nightmare. Good luck. Because it is all going to be on you. If you, (or your lawyer) make one small slip, or you miss one small provision in the enormous chess game that is the road leading to federal habeas review—where purportedly you can be saved because your Federal constitutional rights will be vindicated, you will very likely lose the game. The rights you think belong to you as an American will not be there for you for the most part. It may not matter if you are innocent.

Justices like Scalia have written about innocent state habeas petitioners as if they are nothing but idiots who just cannot get it right, and who have no right to anything now that Congress has spoken. If those innocent petitioners file their petitions late, too bad for them. Never mind that they are innocent. They can stay in prison. He has written using the most dehumanizing tone I have read, as if the innocent person filing the petition is just a fool who cannot get anything right, and should not be heard. In my practice, I have seen so many habeas petitioners with perfectly good claims lose before the court even heard their claims. AEDPA has become just one more door that swings shut and locks before human beings living in the criminal justice system can even be heard, leading to their further systematic dehumanization. How much more can we degrade people in a system that is already so dehumanizing, it is beyond our comprehension? When the courts, applying law, routinely participate in the degradation, something is fundamentally wrong in our jurisprudence, and in the way the law treats its subjects. We have made it impossible for their constitutional rights to provide them protection. I get the sense—this is just a feeling I have—it is because on some level most judges fundamentally despise them.

I will write more about that next time.

So, for whom does AEDPA have lasting meaning? Not for terrorists. Not for their victims.  AEDPA has only had enormous meaning for the legions of those not on death row, for those lingering in state prisons on dubious grounds, those who sought review and were denied it, who face the prospect of dying there, who were ignored by federal courts that refused to review their convictions on messy, difficult to comprehend, or trivial procedural grounds. For wrongfully convicted state prisoners and their families, AEDPA has had huge, lasting, and devastating impact. The injustice they suffer by operation of AEDPA’s strictures is worse than some mere unintended collateral consequence of a poorly thought-out law. It is as if the US Constitution itself has turned its back on them.

For those Americans, languishing in prisons—hopelessly stuck—AEDPA’s reform is long overdue.

Did Clinton know this? I think he did on some level. And I am sure he does now. But he and Hillary say nothing about this tragedy. One would think they would speak of it. But even today, in 2017, neither of them say a word.


[1] Segura, L. 2016. “Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain.” The Intercept. Available at: https://the

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