Opinion: The rogue prosecutor who helped pass a law enabling rogue prosecutors

Opinion by Radley Balko
Columnist
March 17, 2021 at 9:00 a.m. EDT

Sen. Arlen Specter (D-Pa.) was tantalizingly close to achieving something he’d been pursuing for most of his professional life: making it easier for the states to execute people.

Though generally remembered as a moderate, the ruddy former prosecutor could be as rock-ribbed as the most pertinacious partisan when it came to crime, especially the death penalty. One of his pet issues was federal habeas corpus, the centuries-old right of prisoners to have their convictions reviewed in court. Since the Earl Warren era of the Supreme Court and Nixon administration, conservatives had fought to limit the federal courts’ ability to review state capital convictions, arguing that death row prisoners were delaying their executions with frivolous appeals.

When the Republicans took over Congress after the 1994 elections, habeas reform was a key component of their “Contract With America.” But despite little opposition from the Clinton administration, which was busy trying to outflank the Republicans on crime, Specter’s habeas reforms had taken a backseat to more urgent items in the contract.

That all changed in April 1995, when Timothy McVeigh’s fertilizer bomb killed 168 people, including 19 children, in Oklahoma City. It was the sort of horrific national tragedy that tends to clear the decks for big, ambitious and often ill-considered laws. McVeigh’s atrocity produced the Antiterrorism and Effective Death Penalty Act, which turns 25 next month. Seizing on the law’s bipartisan momentum, Specter and his fellow Republicans tucked their long-sought habeas reforms into the bill.

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Radley Balko
Radley Balko reports on criminal justice, the drug war and civil liberties for The Washington Post. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is "The Cadaver King and the Country Dentist: A True Story of Injustice in the American South." Follow https://twitter.com/radleybalko