An Effective Death Penalty ? AEDPA and Error Detection in Capital Cases

On June 11, 2001, the United States of America executed Timothy McVeigh. Dwarfed among the many unspeakable evils that Mr. McVeigh wrought is a speakable one I will address here, namely, the so-called Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ). Abbreviated, AEDPA\u27s political history is as follows: In November 1994, the Gingrich Congress was elected on its Contract with America platform. One of the planks of that platform – one of the few that actually ended up passing Congress – was the so-called Effective Death Penalty Act. That proposal had little to do with the death penalty and, originally, nothing to do with terrorism. What it instead proposed were drastic cuts in federal habeas corpus review of capital and non-capital criminal convictions. First introduced in January 1995, the bill was moving through Congress no more quickly than any other part of the Contract when, on April 19, 1995, Timothy McVeigh\u27s bomb exploded in front of the Murrah Federal Building in Oklahoma City The blast killed 168 people, including nineteen children in a day care center at ground zero. Within hours, McVeigh was spotted careening down an Oklahoma interstate highway without license plates, and arrested. Within days, the President (quite publicly and explicitly) and most other Americans (rather more quietly) had resolved that McVeigh\u27s punishment must be death, and hunkered down to await the imposition and execution of that verdict. And within weeks, Republicans in both Houses of Congress had attached the Effective Death Penalty Act to a version of a Clinton administration proposal for an Antiterrorism Act, and renamed the resulting proposal the Antiterrorism and Effective Death Penalty Act. I discuss below the cynicism of that particular shotgun political marriage, but its effect was to set the legislative sled careening down the hill. AEDPA\u27s death penalty provisions were radical, and the bill quickly encountered opposition. The Senate scheduled the key vote on a bipartisan amendment to strike the worst aspects of the death penalty provisions for June 7, 1995. Those amendments were strongly supported by William Cohen, the Republican Senator from Maine, and they had enough Republican support to pass, if the Senate Democrats held firm. On the evening of June 6, 1995, however, President Clinton went on CNN talk show Larry King Live and announced that he was satisfied with the un-amended bill. The next day, five Democratic Senators defected, and the amendments were defeated by a four vote margin. When the bill encountered similar resistance in the House in the spring of 1996, President Clinton again came to its rescue, demanding its passage by the April 19 anniversary of McVeigh\u27s bombing.7 Again, wavering Democrats obliged the President, though they missed his deadline by a week. AEDPA, thus, was the product of the bizarre alignment of three ill-starred events: Timothy McVeigh\u27s twisted patriotism and disdain for collateral damage, the Gingrich Revolution in its heyday, and the Clinton Presidency at the furthest point of its most rightward triangulation