Mimesis Law
26 September 2020

Liliana Segura Explains How We Castrated Habeas

May 6, 2016 (Mimesis Law) — Before politics was a circus and elections were won by gamesmanship, a different breed ran our country. Statesmen took office to serve, rather than for personal gain. Imagine a modern-day politician speaking the words Thomas Jefferson spoke at his inauguration to remind the Nation of its most important ideals:

—freedom of religion; freedom of the press; and freedom of person, under the protection of the Habeas Corpus:—and trial by juries impartially selected. These principles form the bright constellation, which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages, and blood of our heroes have been devoted to their attainment:—they should be the creed of our political faith; the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty and safety. 

Controversial ideas. Not held up as objects of derision or ridicule. Freedom. Habeas corpus. Jury trials. Not described as loopholes or “soft on crime” or technicalities to avoid execution. Jefferson describes them as steps on the journey to liberty.

In particular, Thomas Jefferson considered the right of habeas corpus just as important as what Americans (at least at one time) thought of as core rights. Generations after this speech, habeas corpus looks very different. In fact, now habeas corpus is just a corpse.

What happened to the Great Writ? How did it become a shell of a proceeding? Liliana Segura explores these questions over at The Intercept. Her story, “Gutting Habeas Corpus”, discusses the death of habeas corpus and how cheap politics struck the fatal blow. Segura’s outstanding article details the political showdown and knee jerk policy decisions that weakened the writ to the point of impotence. But more importantly, there is a lesson in blame here. The real party responsible for this tragic injustice? You. Let’s look at why.

Segura’s story centers on the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. Hell yeah. Antiterrorism and more effective executions. How do you argue with that, Commies? The appeal of the law is right there in the title. Who doesn’t hate terrorists? And the faster and more effectively we execute people, the less likely they exploit some loophole like actual innocence or hidden evidence or false confessions or something and sneak off of death row.

Where did this law come from? Politics. Where else?

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.

See what happened there? Both political parties want to own the “tough on crime” label. So that double down led to a pissing contest that would not end until government had managed to, as the title of the article tells us, gut habeas corpus. Thanks. Why? Because tragedy would strike. And when tragedy strikes, we pass laws.

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.

That bombing would have a profound effect on modern criminal justice. President Clinton wanted the bomber’s head, and wanted it quick.

Asked by 60 Minutes 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.”

Segura points out how prosecutors rallied behind a law that would have no effect on the claims they used for the rally.

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.”

 Nobody cares much about speedy trials, but damn can they get behind speedy executions. But those shortened time limits are not the real evil found in AEDPA. It’s the standard of review over state decisions.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The important word in there is “unreasonable.” It’s okay for a state court to screw up, as long as it was not unreasonable. Take a wild guess how often the federal courts find the state courts acted unreasonably? Right. Pretty much never.

The federal courts have little oversight over state courts now. The very independence required to have meaningful review of state criminal convictions gave way to deference. Replacing independence with deference effectively makes the Great Writ useless. This was such an important idea it’s not a constitutional amendment. It was in the original text. Article I, Section IX of the Constitution says:

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.

Maybe we can’t suspend it, but we can damn sure castrate it so it may as well be suspended. And everyone just sits there watching it happen.

In the rush to get people into their jail cells as quickly as possible, we lost a legal proceeding so important Thomas Jefferson talked about it at his inauguration. So how did this happen?

When the Republicans and Democrats were jockeying to be the toughest on crime, taking away all these rights got votes. From the people. Why was it so important for politicians from both sides of the aisle to be the toughest on crime? Because the people wanted that. People vote. People want to be antiterrorist. People hate those appeals dragging on. People hate to see criminals go free. People are politics.

Who killed habeas corpus? You killed it. The citizenry. Bitch about politicians all you want, but they are only giving you exactly what you asked for.

Thomas Jefferson would be ashamed.

4 Comments on this post.

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  • Thomas Jefferson Was An Asshole: A Reply To Josh Kendrick On The AEDPA
    9 May 2016 at 9:40 am - Reply

    […] 9, 2016 (Mimesis Law) — I urge you to read Josh Kendrick’s well-written and provocative post regarding the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. Based upon […]

  • The Limits of Infallibility | Simple Justice
    18 May 2016 at 7:07 am - Reply

    […] Josh Kendrick kicked it off with his post about how AEDPA “castrated” habeas corpus. Judge Richard Kopf followed up, arguing that it reflected a political judgment that habeas can’t go on forever.  Andrew King provided a deep dive into the history of habeas, and argued that our current adoration of innocence distorts our expectations of habeas. […]

  • What Could President Trump Do To The Supreme Court?
    18 November 2016 at 9:16 am - Reply

    […] Already done. Congress, the (*gasp*) Clintons, and the Supreme Court teamed up on this one to make sure Thomas Jefferson’s Great Writ is a useless stop on the bus route to prison. Or death. […]

  • Will
    4 December 2016 at 7:48 am - Reply

    You said it right. The people get on their moral high horses and rush to get “justice” and sacrifice rights at every turn. They’re not smart enough to know they’re cutting off their noses to spite their own faces!!!

    Also, people clammer for security so they can feel all safe and warm in their own little world and give up rights and liberties without thought. We got a bloody nose when the twin towers and Pentagon were attacked and people willingly gave up liberty for security. I say when one gives up liberty for security, they end losing and not deserving liberty or security.