In the zero-tolerance climate of the ’80s and ’90s, the concept of habeas corpus had met with increasing impatience; critics accused people on death row of gaming the system, filing “appeal after appeal” just to stay alive.
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 Many would like to see it repealed.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.
The story that sets the stage for AEDPA can be partly told through White House memos from the time, a trove of which were released in 2014. Buried among hundreds of thousands of digital records housed in the Clinton Digital Library are previously confidential documents that shine light on Clinton’s criminal justice strategies in the mid-90s, yet have been largely overlooked.
One memo reveals a White House weighing its options in the weeks after the “Republican Revolution.” Dated November 22, 1994, it was written by top Department of Justice lawyer Ron Klain, who sent it to his boss as well as members of President Clinton’s inner circle, including Bruce Reed (the operative behind the famed pledge to “end welfare as we know it”) and senior White House adviser Rahm Emanuel. The memo was titled “Crime Bill ‘Redux.’”
Klain was assessing the threat posed by the new Republican majority to the 1994 crime bill. Passed just two months earlier, it had been a crucial Democratic victory — an end to the era when “the Republicans are seen as the party that’s tougher on crime,” as declared by Senate Majority Leader George Mitchell. The GOP had relentlessly assailed the legislation as a “fake crime bill” for prevention programs like “midnight basketball.” Now the GOP was getting ready to deploy a bill of its own.
“By now, we are all aware of the Republican proposal to revisit last year’s hard won crime bill,” Klain wrote in his memo. Called the Taking Back Our Streets Act, the GOP bill was designed to dismantle the crime bill’s signature features — in particular, a community policing project known as the COPS program — while going even further than the president had in his sweeping legislation. “The Republicans’ goal here is purely political and tactical,” Klain wrote. “To take away the clearest, best ‘Clinton achievement’ on crime, and to deprive the president of the opportunity to award communities all over the country their share of the 100,000 new police officers.”
The GOP also aimed to kill off the crime bill’s prevention programs, but Klain was more concerned about COPS — no doubt in part because the 100,000 police figure had been his idea. A young lawyer described by the New Republic as having “chillingly good political skills,” Klain had been working to pass crime legislation since he was in his 20s, as the “youngest ever chief counsel to the Senate Judiciary Committee.” Under Sen. Joe Biden, Klain had drafted unsuccessful precursors to the 1994 crime bill. Now Klain was being credited as the man who successfully steered its passage.
Klain saw “only two possible outcomes” to the Republican manoeuvring. “The president will have to sign the bill that Congress sends him, or veto it.” While the former would “outrage our core constituency,” he wrote, the latter posed a potentially bigger threat: “We cannot needlessly give the GOP the opportunity to say that the president is vetoing a ‘tough on crime’ bill for ‘soft on crime’ reasons.”
Fear of looking “soft on crime” on the heels of the most extreme law-and-order legislation in US history might have seemed irrational. The 1994 crime bill broadened “three strikes,” poured money into prison building, and vastly expanded the death penalty. But the new power struggle with Congress meant the White House wasn’t taking any chances.
Klain had a solution. Clinton should “welcome Republican efforts to build on last year’s crime bill,” he wrote, by folding them into new Democratic legislation that protected the administration’s top priorities. If it passed, it would be an additional “win” for the White House. Klain attached to his memo “a very, very rough outline of a possible new crime bill,” along with a chart comparing it both to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion cut in prevention programs (reallocating $700 million to new juvenile prisons), more cops in schools, and “tougher truth in sentencing.” In some areas, his outline was harsher than the GOP legislation — “broaden[ing] the range of offences for which juveniles may be tried as adults” and “enhanc[ing] penalties for lesser drug crimes.” In other areas, like the “deportation of criminal aliens,” it simply adopted the Republican line.
Finally, the proposal reintroduced an idea favoured both by Clinton and his foes in Congress: “habeas corpus reform,” previously cut from the crime bill and now part of the Taking Back Our Streets Act. Sometimes called the “Great Writ” for its treasured place in constitutional law, habeas corpus referred to the long-standing right of prisoners to challenge their incarceration in court. For the federal courts, this meant reviewing state convictions for constitutional violations, a process that took years. In the zero-tolerance climate of the ’80s and ’90s, the concept of habeas corpus had met with increasing impatience; critics accused people on death row of gaming the system, filing “appeal after appeal” just to stay alive. “In brief,” Klain wrote, “these reforms would limit death row inmates to a single habeas petition — to be filed within strict time limits — while providing such inmates with competent counsel to assist in preparing this single filing.” While the Republican version of habeas reform made no guarantee on the right to counsel, both sides could agree on the need to speed up the death penalty.
Klain’s imagined crime bill sequel never came to pass — he left the DOJ early the next year. But his top priority lived on. In February 1995, as Clinton threatened to veto the looming GOP bill over the COPS program, White House staff received talking points titled “Debunking Myths: The 100,000 Cops Program Works!!!” In the meantime, others considered the habeas provisions in the Taking Back Our Streets Act. The administration seemed poised to fight for competent counsel; one memo from February 1995 is particularly notable. Apart from providing for lawyers at the post-conviction stage, it stressed that habeas reform “must provide for competent trial counsel,” since “excessive delays in capital cases result not only from manipulation of habeas corpus procedures, but also from a high rate of constitutional error in capital trials.” This point tended to be aggressively ignored in the calls to speed up the death penalty, which usually blamed prisoners for abusing their rights.
As the GOP bill continued to advance that spring, the White House was planning PR events to blunt its political impact. “Our strategy on crime has always been to associate ourselves with police officers,” Rahm Emanuel and Bruce Reed wrote to Clinton in March, urging him to “bolster this image.” But then, suddenly, everything changed.
The Oklahoma City bombings
On the morning of April 19, 1995, a massive explosion rocked the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people and injuring hundreds more. On the ground days later, Clinton gave a powerful eulogy — PR events were no longer needed. It was now up to the president to keep Americans safe, not just from criminals, but from terrorists. Dropping its work on the GOP crime bill, Congress vowed to pass a new counterterrorism bill by Memorial Day.
But at least one key criminal justice priority survived. On the Sunday after the Oklahoma City bombing, Clinton appeared on 60 Minutes, calling for the perpetrator to be executed. The 1994 crime bill had expanded the death penalty “for purposes such as this,” he said. “If this is not a crime for which capital punishment is called, I don’t know what is.” Asked by co-host Ed Bradley how he could deliver on his promise that “justice will be certain, swift and severe,” Clinton called for speeding up death penalty appeals. “Congress has the opportunity this year to reform the habeas corpus proceedings,” he said. “And I hope that they will do so.”
If it was unclear how proposals to shorten appeals for state prisoners related to federal terror cases, prosecutors nonetheless applauded Clinton’s remarks. In a letter to the White House, a bipartisan group of state attorneys general warned that failure to overhaul habeas corpus would endlessly delay justice for “such acts of senseless violence” and undermine “the expression of our level of opprobrium as a nation for acts of terrorism.”
Almost a year later, on April 24, 1996, a signing ceremony took place on the South Lawn of the White House. “In a presidential election year,” the AP reported, “it was an opportunity for a warm display of bipartisanship on a sunny, spring day.” The New York Times described “the Marine band playing and American flags whipping in the breeze.”
“We send a loud, clear message today all over the world, in your names,” the president told families in attendance whose loved ones had died in Oklahoma City. “America will never surrender to terror.” Then he signed the Antiterrorism and Effective Death Penalty Act.