Antiterrorism and Effective Death Penalty Act (1996)

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antiterrorism and Effective Death Penalty Act (1996)

Mark Tushnet

The Antiterrorism and Effective Death Penalty Act (AEDPA) (P.L. 104-132, 110 Stat. 1214) creates the current version of the traditional writ of habeas corpus. Traditionally, habeas corpus, which literally means "you should have the body," is a protection against illegal imprisonment. Under habeas corpus, a person detained by executive officialsmilitary officers, jailers, and prison wardenscan ask a court to determine whether his or her detention is authorized by law. The person can file a petition for the writ, and the court requires the executive official to respond in what is known as the "return" on the writ. If the court finds that the detention violates the law, it issues the writ of habeas corpus.

Habeas corpus has traditionally been a way of getting a judge to decide whether a person's detention was legally justified. Because of that function, for centuries the executive official would prevail simply by showing that a person was being detained under a judgment issued by a judge. That judgment was usually a criminal conviction, if the court had jurisdiction over the criminal case. Releasing a person through a procedure designed to determine whether a detention was legally justified was unnecessary when there was a criminal conviction, because the judge who entered the judgment of conviction had already considered whether the detention was justified.


The Constitution provides, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Article I, section 9, clause 2). The Judiciary Act of 1791, built on this constitutional foundation, authorizes federal judges to issue writs of habeas corpus to determine whether officials of the national government had the right to detain the person seeking release through the procedure. International conflicts produced minor expansions of the writ's function in the 1830s and 1840s, allowing federal judges to issue writs directed at state officials under very limited circumstances, again with the purpose of allowing the federal judge to determine whether the state official was acting with legal authority in detaining the applicant for the writ.

Important Supreme Court cases involved writs of habeas corpus challenging the detention of civilians during the Civil War. During the Reconstruction era that followed, Congress enacted a major expansion of the writ, allowing it to be issued whenever a person held by state officials challenged the lawfulness of the detention. People convicted of crimes in state courts could thereafter challenge their convictions in a trial-level federal court, rather than attempting to get the United States Supreme Court to use its limited resources of time to consider their claims. (Habeas corpus is less important for people convicted in federal court, because the federal trial court will have considered and rejected their claims at trial, and they can raise them on appeal to the federal appeals court.)

The Supreme Court transformed the writ into something nearly the same as an appeal of a criminal conviction, but in the federal courts instead of the state courts. By the 1940s Supreme Court rulings allowed people who had been convicted to obtain release through the writ of habeas corpus by showing that their convictions were unlawful in the sense that the Constitution (or, under the 1948 version of the habeas corpus statute, some particularly important statutes) had been violated in the proceedings leading to the conviction.

Habeas corpus matters as well when a criminal defendant's lawyer fails to present a constitutional claim at the trial. This may occur because of the lawyer's incompetence, or because the lawyer simply made an understandable mistake, or because the courts developed a new rule of constitutional law after the trial concluded. Usually a defendant cannot raise claims on appeal that were not raised at trial, but habeas corpus might provide a way for some court to consider such claims.

Ordinarily convicted defendants raise challenges to the lawfulness of their detention by appealing their convictions. Expanding the scope of the writ of habeas corpus put the writ in conflict with ordinary appeals. The Supreme Court accommodated the two paths in its decision in Ex parte Royall (1886), holding that a prisoner could not obtain the writ until he or she had "exhausted" the ordinary appeals process by appealing in the state courts (known as the exhaustion requirement). Without such a requirement a person could move immediately from the state court in which he or she was convicted to the nearby federal court, thereby completely cutting the state courts out of the ordinary process of reviewing criminal convictions.

During the 1960s the Supreme Court made it easier for defendants to obtain habeas corpus. It allowed them to present the same claim several times, and sometimes, when the law changed, the courts would grant the second or later petition. It prevented defendants from presenting claims on habeas corpus that they had not presented at trial only if they had made a deliberate decision to withhold the claims, a rare occurrence (Fay v. Noia [1963]).

Members of Congress concerned with law and order, and newly appointed judges and justices, believed that habeas corpus in the early 1970s undermined state criminal justice systems. The Supreme Court itself retrenched in the 1970s and 1980s, holding that claims that had not been presented at trial could not be presented on habeas corpus unless the state had somehow blocked the defendant's lawyer from presenting the claim (Wainwright v. Sykes [1977], Coleman v. Thompson [1991]), and that habeas corpus could not be granted when the defendant relied on a "new rule" of constitutional law (Teague v. Lane [1989]).


With AEDPA, Congress tightened habeas corpus procedures. The act was a response to general dissatisfaction with the law of habeas corpus. Its adoption was speeded, and the act was given its name after the bombing of the federal building in Oklahoma City. The act created a new one-year statute of limitations for filing habeas corpus proceedings, measured from the time when state court consideration of the case ended. The act made it even more difficult to present claims that had not been presented to the state courts because of an attorney's error.

Probably most important, the act provided a limited standard for the federal courts to use when assessing claims that had been presented to the state courts. (The exhaustion requirement and the rules about claims not presented because of attorney error mean that habeas corpus is very difficult to obtain in connection with claims that were not so presented.) AEDPA provides that the federal courts should not grant the writ unless the state court's action "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

The writ of habeas corpus has evolved over the centuries, from a remedy for violations of law in a quite limited set of cases, to a much more general remedy for criminal convictions obtained by violating the Constitution. AEDPA, yet another stage in that evolution, is a relatively new statute. Under AEDPA, a criminal defendant with a decent lawyer still can get almost all of his or her substantial constitutional claims considered on habeas corpus. Defendants with less than fully competent lawyers are more seriously affected. As courts interpret its provisions, they will move habeas corpus to another new stage, perhaps even more restrictive than today or possibly more like the relatively expansive remedy that existed in the 1960s and 1970s.

See also: Foreign Intelligence Surveillance Act; USA Patriot Act.


Freedman, Eric M. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York University Press, 2001.

Hertz, Randy, and James S. Liebman. Federal Habeas Corpus Practice and Procedure, 4th ed. Charlottesville, VA: LexisNexis, 2001.

Guantanamo Bay Detainees of the Afghan War

At the close of the war in Afghanistan, the U.S. Department of Defense held nearly 700 prisoners of 42 different nationalities at a naval base in Guantanamo Bay, Cuba. Because the prisoners were declared "unlawful combatants" rather than prisoners of war, they were denied the protections of the Geneva Convention, which provides guidelines for the humane treatment of prisoners of war. The captives had no access to lawyers or communication with their families while they were being held. They were interrogated in secret, and, depending on the results, were either released or subject to military trials. There was no limit on the length of time they could be held. In July 2003, most were still in prison, more than a year and a half after their arrest, with no idea of what was to happen to them.