Oklahoma City Bombing Memorial
A whole new generation of Americans have come and gone since Timothy McVeigh, Terry Nichols, and perhaps “others unknown” blew up the Alfred P. Murrah federal building in Oklahoma City on April 19, 1995. The truck bomb they parked in front of the building killed 168 people, including 19 children, and wounded hundreds more. It was, until the attacks of September 11, 2001, the largest domestic terror attack in American history.
There were several solemn ceremonies over the weekend to mark the event but before the 20th anniversary of the bombing recedes into memory it’s worth pausing for a moment to reflect upon its significance in shaping the world of criminal justice as we know it today. We still are living with many of the legal and political legacies of the attack (read Kevin Johnson’s excellent work last week on how the victims’ rights movement was shaped by the events of April 19, 1995) but let me now just mention two such legacies, one negative, the other positive.
The most significant negative consequence of the bombing was the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA), a 1996 federal law that enhanced penalties for terror-related crimes and sought to streamline the federal appellate process for claims arising out of state criminal cases. There were too many appeals taking too long, AEDPA proponents argued, to the point where delays were eroding confidence in our justice systems.
What the AEDPA has actually done, however, is further erode confidence in our justice systems by blocking from substantive federal judicial review even state appeals that have merit. It turns out that the officials most vociferously supportive of the AEDPA were often those from jurisdictions that had terrible records of wrongful convictions spurred by prosecutorial misconduct, racial bias, inept judges, and shoddy police work. They didn’t want endless appeals, we now may say in retrospect, because they didn’t want those dubious convictions overturned.
So there are countless innocent men and women who are still in prison in America today because of the AEDPA, a law that likely would never have passed had the Murrah building not been bombed. And even as the law has “streamlined” appeals in some cases it has bewildered lawyers, frustrated judges, and generated countless new procedural and substantive questions that the United States Supreme Court has been forced (with varying degrees of success) to address term after term after term.
The AEDPA is a terrible legacy of the Oklahoma City bombing—made measurably worse because officials then overreached again in restricting due process rights just a few years later following the terror attacks on New York and Washington. You can draw a straight line from the AEDPA to the Patriot Act if you try. And neither this Congress nor this Supreme Court (no matter how many wrongful convictions we read about) seem likely to try to restore the status quo ante of 20 years ago.
But some good came out of the tragedy in Oklahoma City. People forget that the bombing occurred in the middle of the O.J. Simpson criminal trial in Los Angeles, a televised circus that shaped the way millions of Americans perceived our criminal justice systems 20 years ago. Even before the verdict, which exposed a racial divide in this country that still exists today, trial watchers following the case every minute on cable television couldn’t believe that a murder trial could be so chaotic. The trial judge, Lance Ito, lost control of his courtroom early in the proceedings and never got it back.
But then McVeigh and Nichols were arrested for the Oklahoma City attack and charged with federal murder, terrorism, and conspiracy charges. And then the bombing trial was assigned to a tough, no-nonsense federal trial judge in Denver, U.S. District Judge Richard Matsch, who promptly moved the whole trial to Colorado to protect the fair trial rights of the two suspects charged with the largest crime in American history. And then Judge Matsch presided over a trial of such order and dignity that it still today is a model for high-profile cases in federal or state court.
The Oklahoma City bombing trials of McVeigh and Nichols were in that sense an answer to the Simpson trial. They restored public confidence in the judiciary and in our criminal justice systems by reminding people that the Simpson trial was the aberration, and not the norm, in the way that trials were conducted across the country. That judges, not lawyers, ran courtrooms in murder cases—that both the fairness of the process and the legitimacy of the result depended upon a level of decorum that was missing from the Simpson case but omnipresent during the bombing trials.
It seems a small point to make now that we cannot even muster up the political or legal courage to prosecute the 9/11 conspirators in federal civilian court. But it’s important to remember that our perceptions of justice are not static, they ebb and flow with our times and are influenced by the events around us. McVeigh and Nichols hoped they would change history and begin a revolution with their deadly deed. They changed history, all right, but in ways they could not imagine and certainly would not have condoned.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.