While human-rights observers have rightly focused on terrorism-related developments in the U.S. criminal-justice system, the trend toward limited procedural protections for defendants and a shrinking judicial role well predates the September 11 attacks. Indeed, security has been a central justification for rights-limiting changes in the criminal-justice system for decades.
Much like the war on terrorism today, the dominant feature of criminal-justice policy in the 1980s was the vigorously marketed war on drugs. Once declared in 1982, that war quickly became the federal government's primary domestic-security focus. The Justice Department shifted huge numbers of personnel previously occupied with white-collar criminals to anti-drug enforcement in the inner cities. As the Drug Enforcement Administration's New York City office chief later wrote of the mid-'80s, it “was the hottest combat reporting story to come along since the end of the Vietnam war.”
Out of the drug war grew a series of rights-limiting legislative proposals and laws, including measures that would involve the military in drug-control efforts, expand the death penalty to certain drug-related crimes, and ease restrictions on allowing illegally obtained evidence to be introduced in drug prosecutions. Notable among these was the advent of mandatory minimum sentencing. With congressionally set sentences, judges lost much of their ability to tailor punishment to particular offense and offender -- a development that both limited the independent discretion judges had long enjoyed and sometimes produced grossly disproportionate results. By the 1990s, keen to diffuse the stereotype that Democrats were “soft on crime,” President Clinton asked Congress to endorse three-strikes laws then growing in popularity in the states. Under these laws, after three felony convictions -- in some states, no matter how trivial the underlying offenses -- an offender could be sentenced to a lifetime in prison.
Just about the time that Republican efforts had failed to enact sweeping habeas corpus reform legislation -- designed to limit defendants' appeals in federal court and speed the imposition of the death penalty -- Americans witnessed the 1995 bombing of the Murrah Federal Building in Oklahoma City. The resulting legislation, the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), included a number of sensible counterterrorism measures designed to make it easier, for example, to track the origin of chemical explosives and restrict the sale of potentially deadly biological agents. But AEDPA also sharply curtailed defendants' ability to have unconstitutional state-law criminal convictions overturned in federal court.
The AEDPA restrictions picked up on a series of Supreme Court decisions from the 1970s through the 1990s already limiting the types of constitutional claims federal habeas courts could consider. For example, based on a Supreme Court decision, such courts had not been able to consider defendants' claims that law-enforcement officers had illegally searched or seized evidence used to secure convictions. After AEDPA, no matter what the underlying constitutional right, a federal court could only overturn a state conviction if it was clearly “contrary to” or “an unreasonable interpretation of” federal law. A state court that simply issued a wrong decision on federal law -- so long as it was not unreasonable -- could not be overturned on habeas review. In the first years after its passage, AEDPA had a dramatic effect in accelerating the number of executions in the United States: Between 1996 and 1999, the number of prisoners executed annually in the United States more than doubled.
While obtaining relief from an unlawful conviction was becoming harder, it was becoming nearly impossible for prisoners to challenge unconstitutional conditions of detention. The Prison Litigation Reform Act of 1996 included a provision authorizing any prison official (or other party) to file a motion in court asking to end any existing court mandate that had required state officials to remedy unconstitutional prison conditions. If the federal court failed to respond to the motion within 90 days, the court's previous order (requiring, for example, measures to ensure adequate health conditions in prisons) would cease to have effect until the case was resolved. The Supreme Court narrowly upheld the legislation in 2000.
Post–September 11 legislative reforms have, of course, taken their own toll on the rights available to those caught up in the criminal-justice system. The PATRIOT Act has made it easier for law-enforcement officers to avoid Fourth Amendment warrant requirements in conducting physical and electronic searches. Material-witnesses statutes -- long used to detain key witnesses to make sure that they did not disappear before testifying in a pending trial -- are now used to hold individuals for lengthy periods, but without any of the constitutional protections afforded to criminal suspects. And prosecutions for the broad crime of providing “material support” to a terrorist organization have increased, risking incursions into legitimate rights of free association and speech.
After September 11 as before, the criminal-justice system remains among legislators' preferred vehicles for addressing social ills of all kinds.
Deborah Pearlstein is director of the U.S. Law and Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting lecturer on human rights and national security at Stanford Law School.