Did the Oklahoma City Bombers Succeed?

Abstract

The worst case of domestic terrorism in our country's history, the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, led to the enactment of a landmark antiterrorism statute. Not surprisingly, several of the statute's provisions strengthen federal power in extraordinary and unprecedented ways to counter the threat of terrorism. But other provisions radically restrict the ability of federal courts to enforce the federal constitutional rights of state prisoners. How could Congress miss the apparent irony of responding to the destruction of a federal courthouse with its own assault on federal judicial power? This article argues that the role of federal habeas corpus has changed substantially over the past three decades. Whereas federal habeas had emerged during the Warren Court as a general forum for supervising state court compliance with constitutional norms, it has now become primarily a forum for death penalty litigation. Congress appears to have recognized this transformation, and the antiterrorism statute confirms that Congress views federal habeas through the lens of the death penalty rather than the lens of federalism. This article explores the costs of the "capitalization" of habeas and the subtle relationship between federalism, federal habeas, and the death penalty.