Antiterrorism and Effective Death Penalty Act 110 Stat. 1214 (1996)

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On April 24, 1996, one year and five days after the Oklahoma City bombing, President william j. clinton signed into law the Antiterrorism and Effective Death Penalty Act (AEDPA). The statute is extraordinarily farranging and implicates constitutional provisions from Article III to the suspension clause, the Fifth Amendment, and the first amendment. AEDPA is also notoriously complex and not especially well-drafted. As Justice david h. souter put it in Lindh v. Murphy (1997), "in a world of silk purses and pigs' ears, the Act is not a silk purse of the art of statutory drafting."

The two most immediately effective features of AEDPA—drastic restriction of federal court habeas corpus review of criminal cases and broad expansion of the power to exclude and deport certain non-citizens—bore virtually no relation to the terrorist act committed by U.S. citizens which had spurred its passage and inspired its name. A more relevant but constitutionally dubious section prohibits the provision of "material support or resources" to groups designated "terrorist organizations." Other sections deal with victim assistance and restitution, jurisdiction for lawsuits against "terrorist states," prohibitions on "assistance to terrorist states," nuclear, biological, and chemical weapons restrictions, plastic explosives restrictions, and various criminal law modifications relating to terrorism.

The restrictions on habeas corpus review in AEDPA were, in many respects, a codification of doctrines already created by the Supreme Court and, as such, they are unlikely to be found unconstitutional in our era. However, AEDPA addresses issues such as delay, second and successive petitions, and finality with unprecedented rigidity and force and therefore implicates due process and other constitutional rights in new and often distressing ways. A sketch of AEDPA's main judicial review features includes (1) special court of appeals gate-keeping mechanisms and severe restrictions relating to second or subsequent habeas corpus petitions, (2) unprecedented deference to state court factual and legal findings, (3) strict new time limitations both on filing deadlines and federal court action on habeas corpus petitions, (4) limitations on evidentiary hearings in habeas corpus cases, and (5) special restrictions on habeas corpus petitions filed by certain state prisoners facing capital punishment including a filing limitation of 180 days. To date, these provisions have generally withstood constitutional challenge although certain aspects of AEDPA have been interpreted narrowly to avoid constitutional issues.

In the immigration arena, AEDPA (1) purported to eliminate judicial review of certain types of deportation orders, (2) severely restricted a venerable discretionary waiver of deportability—so-called "Section 212(c) relief"—that had permitted a long-term legal permanent resident who was convicted of a crime to avoid deportation after consideration of a variety of humanitarian and other factors, (3) expanded criminal grounds of deportation and expedited deportation procedures for certain types of cases, (4) created a new system for the "summary exclusion" from the United States of certain asylum-seekers who lack proper documentation, with extremely limited judicial review, and (5) created a new type of radically streamlined "removal" proceeding—including the possibility of secret evidence—for noncitizens accused of "terrorist" activity. Some of these provisions were enhanced and many were superseded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).

Federal courts have grappled with difficult interpretive and constitutional problems raised by the immigration law sections of AEDPA. The main points of contention have been over retroactivity, due process, and the nature and scope of judicial review of administrative immigration decisions. Ultimately, many of these questions will likely be resolved by the Supreme Court.

Daniel Kanstroom


Benson, Lenni B. 1997 Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings. Connecticut Law Review 29:1411–1494.

Note 1998 The Avoidance of Constitutional Questions and the Preservation of Judicial Review: Federal Court Treatment of the New Habeas Provisions. Harvard Law Review 111: 1578–1595.

Scaperlanda, Michael 1996 Are We That Far Gone? Due Process and Secret Deportation Proceedings. Stanford Law and Policy Review 7:23–30.

Tushnet, Mark and Yackle, Larry W. 1997 Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act. Duke Law Journal 47:1–86.

Yackle, Larry W. 1996 A Primer on the New Habeas Corpus Statute. Buffalo Law Review 44:381–449.

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Antiterrorism and Effective Death Penalty Act 110 Stat. 1214 (1996)

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