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The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes.
The Senate resumed consideration of the bill.
Pending:
Hatch-Dole amendment No. 1199, in the nature of a substitute.
Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way.
Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent.
In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases.
This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category.
I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill.
Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime.
It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree.
One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports.
The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators.
When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair.
Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money.
Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty.
We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it.
Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania.
When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out.
It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted.
I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred.
Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated.
There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more.
One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith.
Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal.
Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, `I'm going to kill this squealer,' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest.
The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings.
It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons.
I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime.
Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly.
Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris.
There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment.
In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment.
There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights.
So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction.
Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights.
After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger.
This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing.
If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court.
So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years.
This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation.
I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States.
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Mr. HATCH. Will my colleague yield?
Mr. SPECTER. I do.
Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it.
We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should.
The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society.
So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend.
We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I apologize to my colleague for being late.
Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217.
Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Delete title 6, subtitle A, and insert the following:
SEC. 601. FILING DEADLINES.
Section 2255 of title 28, United States Code, is amended--
(1) by striking the second and fifth paragraphs; and
(2) by adding at the end the following new paragraphs:
`A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
`(1) the date on which the judgment of conviction becomes final;
`(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action;
`(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or
`(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
`In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right.
`A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed.
`A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless--
`(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or
`(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
`(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense.
`Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion.
`The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari.
`A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.'.
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Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers.
I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system.
Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it.
The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision.
As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, `I hope we keep our eye on the ball here.' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus.
Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now.
So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system.
So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies.
So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told.
There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does.
My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions.
So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus.
Parliamentary inquiry: How much time remains?
The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds.
Mr. BIDEN. I will reserve the remainder of my time.
I yield the floor.
Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases.
Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary.
This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat:
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[I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings.
In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as
Federal, court.
A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, `swift, certain, and severe.'
Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court.
As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence.
In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted.
This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system.
Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now.
Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague.
I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them.
So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment.
First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people.
I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record.
There being no objection, the letter was ordered to be printed in the Record, as follows:
STATE OF OKLAHOMA,
District Attorney,
Oklahoma City, OK, May 24, 1995.
Senator Orrin G. Hatch,
Chairman, Judiciary, Dirksen Senate Office, Washington, DC.
Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court.
There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities.
The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice.
Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include:
Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions.
As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required.
Respectfully,
Robert H. Macy,
District Attorney.
Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society today still sitting on death row almost 50 years later.
So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur.
Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment.
Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over.
Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well?
[Page: S7808]
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. I will be very brief in reply.
With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) `Use of Weapons of Mass Destruction'--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point.
Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill.
And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill.
I am prepared, whenever the Senator wants, to move to the tabling of my amendment.
Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions.
Mr. President, I move to table the amendment and ask for the yeas and nays.
The PRESIDING OFFICER. Do Senators yield back their time?
Mr. HATCH. I yield back the time.
Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that.
I yield back my time.
Mr. HATCH. I yield back my time.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll.
Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent.
I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote `yea.'
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote?
The result was announced--yeas 67, nays 28, as follows:
So the motion to table the amendment (No. 1217) was agreed to.
Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome.
Mrs. BOXER. On this last rollcall vote No. 237, I voted `yea.' It was my intention to vote `nay.' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The foregoing tally has been changed to reflect the above order.)
Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill.
At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible.
It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus.
The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners.
The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy.
When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the `Great Writ.'
Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years.
In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following:
[Page: S7809]
Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence.
But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country.
A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial.
As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial.
This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness.
In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death.
At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, `swift justice demands more than just swiftness.'
Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an `unreasonable application of Federal law.'
No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated.
This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much.
I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly.
A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases.
Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so.
Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions.
The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution.
This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can.
The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it.
I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate.
(Mr. KYL assumed the chair.)
Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second.
Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226.
Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill.
Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly.
I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference.
We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side.
Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment.
Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided.
Mr. DOLE. Mr. President, I make that request.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199.
[Page: S7810]
Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Delete from page 106, line 20 through all of page 125 and insert the following:
`(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.'.
SEC. 605. SECTION 2255 AMENDMENTS.
Section 2255 of title 28, United States Code, is amended--
(1) by striking the second and fifth undesignated paragraphs; and
(2) by adding at the end the following new undesignated paragraphs:
`A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
`(1) the date on which the judgment of conviction becomes final;
`(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
`(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
`(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
`In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
`A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--
`(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
`(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.'.
SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.
(a) Conforming Amendment to Section 2244(a): Section 2244(a) of title 28, United States Code, is amended by striking `and the petition' and all that follows through `by such inquiry.' and inserting `, except as provided in section 2255.'.
(b) Limits on Second or Successive Applications: Section 2244(b) of title 28, United States Code, is amended to read as follows:
`(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
`(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
`(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
`(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
`(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
`(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
`(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
`(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
`(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.
`(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
`(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.'.
SEC. 607. DEATH PENALTY LITIGATION PROCEDURES.
(a) Addition of Chapter to Title 28, United States Code: Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter:
`Sec.
`2261. Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment.
`2262. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.
`2263. Filing of habeas corpus application; time requirements; tolling rules.
`2264. Scope of Federal review; district court adjudications.
`2265. Application to State unitary review procedure.
`2266. Limitation periods for determining applications and motions.
`2261. Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment
`(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.
`(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.
`(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record--
`(1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;
`(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or
`(3) denying the appointment of counsel upon a finding that the prisoner is not indigent.
`(d) No counsel appointed pursuant to subsections (b) and (c) to represent a State prisoner under capital sentence shall have previously represented the prisoner at trial or on direct appeal in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.
`(e) The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254. This limitation shall not preclude the appointment of different counsel, on the court's own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness or incompetence of counsel in such proceedings.
`2262. Mandatory stay of execution; duration; limits on stays of execution; successive petitions
`(a) Upon the entry in the appropriate State court of record of an order under section 2261(c), a warrant or order setting an execution date for a State prisoner shall be stayed upon application to any court that would have jurisdiction over any proceedings filed under section 2254. The application shall recite that the State has invoked the post-conviction review procedures of this chapter and that the scheduled execution is subject to stay.
`(b) A stay of execution granted pursuant to subsection (a) shall expire if--
`(1) a State prisoner fails to file a habeas corpus application under section 2254 within the time required in section 2263;
`(2) before a court of competent jurisdiction, in the presence of counsel, unless the prisoner has competently and knowingly waived such counsel, and after having been advised of the consequences, a State prisoner under capital sentence waives the right to pursue habeas corpus review under section 2254; or
`(3) a State prisoner files a habeas corpus petition under section 2254 within the time required by section 2263 and fails to make a substantial showing of the denial of a Federal right or is denied relief in the district court or at any subsequent stage of review.
`(c) If one of the conditions in subsection (b) has occurred, no Federal court thereafter shall have the authority to enter a stay of execution in the case, unless the court of appeals approves the filing of a second or successive application under section 2244(b).
`2263. Filing of habeas corpus application; time requirements; tolling rules
`(a) Any application under this chapter for habeas corpus relief under section 2254 must be filed in the appropriate district court not later than 180 days after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review.
`(b) The time requirements established by subsection (a) shall be tolled--
`(1) from the date that a petition for certiorari is filed in the Supreme Court until the date of final disposition of the petition if a State prisoner files the petition to secure review by the Supreme Court of the affirmance of a capital sentence on direct review by the court of last resort of the State or other final State court decision on direct review;
`(2) from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition; and
`(3) during an additional period not to exceed 30 days, if--
`(A) a motion for an extension of time is filed in the Federal district court that would have jurisdiction over the case upon the filing of a habeas corpus application under section 2254; and
`(B) a showing of good cause is made for the failure to file the habeas corpus application within the time period established by this section.
[Page: S7811]
`2264. Scope of Federal review; district court adjudications
`(a) Whenever a State prisoner under capital sentence files a petition for habeas corpus relief to which this chapter applies, the district court shall only consider a claim or claims that have been raised and decided on the merits in the State courts, unless the failure to raise the claim properly is--
`(1) the result of State action in violation of the Constitution or laws of the United States;
`(2) the result of the Supreme Court recognition of a new Federal right made retroactively applicable to cases on collateral review by the Supreme Court; or
`(3) based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review.
`(b) Following review subject to subsections (a), (d), and (e) of section 2254, the court shall rule on the claims properly before it.
`2265. Application to State unitary review procedure
`(a) For purposes of this section, a `unitary review' procedure means a State procedure that authorizes a person under sentence of death to raise, in the course of direct review of the judgment, such claims as could be raised on collateral attack. This chapter shall apply, as provided in this section, in relation to a State unitary review procedure if the State establishes by rule of its court of last resort or by statute a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in the unitary review proceedings, including expenses relating to the litigation of collateral claims in the proceedings. The rule of court or statute must provide standards of competency for the appointment of such counsel.
`(b) To qualify under this section, a unitary review procedure must include an offer of counsel following trial for the purpose of representation on unitary review, and entry of an order, as provided in section 2261(c), concerning appointment of counsel or waiver or denial of appointment of counsel for that purpose. No counsel appointed to represent the prisoner in the unitary review proceedings shall have previously represented the prisoner at trial in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.
`(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation to cases involving a sentence of death from any State having a unitary review procedure that qualifies under this section. References to State `post-conviction review' and `direct review' in such sections shall be understood as referring to unitary review under the State procedure. The reference in section 2262(a) to `an order under section 2261(c)' shall be understood as referring to the post-trial order under subsection (b) concerning representation in the unitary review proceedings, but if a transcript of the trial proceedings is unavailable at the time of the filing of such an order in the appropriate State court, then the start of the 180-day limitation period under section 2263 shall be deferred until a transcript is made available to the prisoner or counsel of the prisoner.
`2266. Limitation periods for determining applications and motions
`(a) The adjudication of any application under section 2254 that is subject to this chapter, and the adjudication of any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters.
`(b)(1)(A) A district court shall render a final determination and enter a final judgment on any application for a writ of habeas corpus brought under this chapter in a capital case not later than 180 days after the date on which the application is filed.
`(B) A district court shall afford the parties at least 120 days in which to complete all actions, including the preparation of all pleadings and briefs, and if necessary, a hearing, prior to the submission of the case for decision.
`(C)(i) A district court may delay for not more than one additional 30-day period beyond the period specified in subparagraph (A), the rendering of a determination of an application for a writ of habeas corpus if the court issues a written order making a finding, and stating the reasons for the finding, that the ends of justice that would be served by allowing the delay outweigh the best interests of the public and the applicant in a speedy disposition of the application.
`(ii) The factors, among others, that a court shall consider in determining whether a delay in the disposition of an application is warranted are as follows:
`(I) Whether the failure to allow the delay would be likely to result in a miscarriage of justice.
`(II) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate briefing within the time limitations established by subparagraph (A).
`(III) Whether the failure to allow a delay in a case, that, taken as a whole, is not so unusual or so complex as described in subclause (II), but would otherwise deny the applicant reasonable time to obtain counsel, would unreasonably deny the applicant or the government continuity of counsel, or would deny counsel for the applicant or the government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
`(iii) No delay in disposition shall be permissible because of general congestion of the court's calendar.
`(iv) The court shall transmit a copy of any order issued under clause (i) to the Director of the Administrative Office of the United States Courts for inclusion in the report under paragraph (5).
`(2) The time limitations under paragraph (1) shall apply to--
`(A) an initial application for a writ of habeas corpus;
`(B) any second or successive application for a writ of habeas corpus; and
`(C) any redetermination of an application for a writ of habeas corpus following a remand by the court of appeals or the Supreme Court for further proceedings, in which case the limitation period shall run from the date the remand is ordered.
`(3)(A) The time limitations under this section shall not be construed to entitle an applicant to a stay of execution, to which the applicant would otherwise not be entitled, for the purpose of litigating any application or appeal.
`(B) No amendment to an application for a writ of habeas corpus under this chapter shall be permitted after the filing of the answer to the application, except on the grounds specified in section 2244(b).
`(4)(A) The failure of a court to meet or comply with a time limitation under this section shall not be a ground for granting relief from a judgment of conviction or sentence.
`(B) The State may enforce a time limitation under this section by petitioning for a writ of mandamus to the court of appeals. The court of appeals shall act on the petition for a writ or mandamus not later than 30 days after the filing of the petition.
`(5)(A) The Administrative Office of United States Courts shall submit to Congress an annual report on the compliance by the district courts with the time limitations under this section.
`(B) The report described in subparagraph (A) shall include copies of the orders submitted by the district courts under paragraph (1)(B)(iv).
`(c)(1)(A) A court of appeals shall hear and render a final determination of any appeal of an order granting or denying, in whole or in part, an application brought under this chapter in a capital case not later than 120 days after the date on which the reply brief is filed, or if no reply brief is filed, not later than 120 days after the date on which the answering brief is filed.
`(B)(i) A court of appeals shall decide whether to grant a petition for rehearing or other request for rehearing en banc not later than 30 days after the date on which the petition for rehearing is filed unless a responsive pleading is required, in which case the court shall decide whether to grant the petition not later than 30 days after the date on which the responsive pleading is filed.
`(ii) If a petition for rehearing or rehearing en banc is granted, the court of appeals shall hear and render a final determination of the appeal not later than 120 days after the date on which the order granting rehearing or rehearing en banc is entered.
`(2) The time limitations under paragraph (1) shall apply to--
`(A) an initial application for a writ of habeas corpus;
`(B) any second or successive application for a writ of habeas corpus; and
`(C) any redetermination of an application for a writ of habeas corpus or related appeal following a remand by the court of appeals en banc or the Supreme Court for further proceedings, in which case the limitation period shall run from the date the remand is ordered.
`(3) The time limitations under this section shall not be construed to entitle an applicant to a stay of execution, to which the applicant would otherwise not be entitled, for the purpose of litigating any application or appeal.
`(4)(A) The failure of a court to meet or comply with a time limitation under this section shall not be a ground for granting relief from a judgment of conviction or sentence.
`(B) The State may enforce a time limitation under this section by applying for a writ of mandamus to the Supreme Court.
`(5) The Administrative Office of United States Courts shall submit to Congress an annual report on the compliance by the courts of appeals with the time limitations under this section.'.
(b) Technical Amendment: The part analysis for part IV of title 28, United States Code, is amended by adding after the item relating to chapter 153 the following new item:
`154. Special habeas corpus procedures in capital cases
2261.'.
[Page: S7812]
Mr. BIDEN. Mr. President, in 1988, we passed a bill which I had authored with several others called the Death Penalty for Drug Kingpins Act.
It was the first constitutional Federal death penalty to go on the books after 1972 when the Supreme Court invalidated the death penalty.
I helped write that bill, much to the dismay of many of my liberal friends who could not understand why I was writing such a bill. It was a bill strongly promoted by President Bush, and it passed by a lopsided vote of 65 to 29, with only six Republicans voting against the bill.
When we passed that bill, we recognized that if the Federal Government was going to put a person to death, we better get it right. We better have the right guy and we better have had a fair trial, and the defendant better have had his or her day in court.
As part of the law, we said that the capital defendant--the defendant accused of a crime which carried with it the death penalty--in that case the person should have a lawyer. Kind of axiomatic. They should have a lawyer if they are going to go to trial, a trial in which, if that person is found guilty, they will be put to death.
That, of course, is also what the sixth amendment of the Constitution of the United States says. It explicitly says that `In all criminal proceedings the accused shall have the assistance of counsel for his defense.'
Remember Clarence Earl Gideon? The case was Gideon versus Wainwright. The Supreme Court held that Mr. Gideon, accused of a crime, could not receive a fair trial absent the right to a lawyer.
In that case, the court said, `The sixth amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not be done. The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.'
Also, in the 1988 drug bill we said that prisoners, State or Federal, who are looking the death penalty in the eye should have a lawyer for their Federal habeas corpus appeals. Again, we recognize that if the Federal Government is going to put its stamp of approval on a man's execution, he should at least have a lawyer.
But this Republican bill does something I am not sure they intended to do, but they did. This Republican bill changes all of that. Astonishingly, it changes all of that. In a section entitled `technical amendments'--we should all keep our eyes open when someone says `this is just a technical amendment'--in a section entitled `technical amendments,' this bill repeals the right to counsel in Federal capital cases. It says that the right to counsel is no right at all but a matter of discretion for the judge.
Let me refer you back to Gideon versus Wainwright, that famous last sentence which says, `The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.'
It does not say it is discretionary in ours. It does not say maybe it is all right in ours. It does not say it is OK sometimes in ours. It says, `it is in ours.'
Astonishingly, this little technical amendment says the right to counsel is a matter of discretion for the judge to decide.
I do not know what my colleagues were thinking of when they wrote this. But what this seems to be saying is this: We do not care what the Constitution says. We do not care what the Supreme Court says. We think it is OK to deny a person who faces the Federal death penalty--and there are now over 60 on the books--we think it is OK to deny that person the assistance of counsel at his trial. I submit this proposition is as unthinkable as it is unconstitutional. And we should have nothing to do with it.
The Republican bill also repeals the right we created in 1968 to a lawyer for Federal habeas corpus appeal. This bill says that there should be no right to a lawyer, that it should instead be a matter of discretion for every individual case. What is more, the Republican proposal is taking away this right at the very same time it is changing the rules of the game on habeas corpus, and placing new and sweeping restrictions on the right of habeas corpus itself.
We want to change habeas corpus but they are making sweeping changes in the rules of the game. And in addition saying, and by the way, while we are at it we are going to go back and deny you your right to counsel when you are filing such a petition. And one more thing, we are going to deny you the automatic right to a lawyer at your trial, before you are convicted.
It reminds me of that line that is often used, and I will paraphrase, `hanging first, trial later.' What are we into here?
I agree we should cut down the delay and abuse of the Federal habeas corpus and I have made a number of similar proposals over the years to impose strict time limits on when such petitions could be filed and also to limit the number that could be filed, essentially giving one bite out of the apple to drastically reduce the ability to have successive petitions unless there is some egregious action that is learned about after the petition is filed, the first petition.
But I have always believed if we are going to speed up the process, which I wish to do, if we are going to narrow the avenues of habeas corpus, which I wish to do, we should at least make sure that the petitioner has a lawyer. That is what we said in 1988 and there has been no serious question raised about our wisdom in passing that law since then.
Two years ago I entered into painstaking extensive negotiations with the Nation's district attorneys and the attorneys general of the United States over habeas corpus reform. We negotiated for months. We logged hundreds of hours, argued over scores of serious issues before we came up with a lengthy and comprehensive compromise--which, I might say and I probably should not, my staff will not like this, which the liberal press killed. The liberal press told us this was somehow a terrible thing to do.
I kept saying we better do this or they are going to take it all away. But I hope everybody is listening who helped kill that compromise.
But not once in all our discussions with the Nation's prosecutors, I was not talking with the public defenders. I was not talking with the defense bar. I was talking with the Nation's prosecutors, the DA's back home, the State's attorneys general back home. Not one time in our talks did the prosecutors propose the repeal of the 1988 right to a lawyer in a habeas corpus petition. Not once did they argue that the right to counsel in habeas corpus should be discretionary. Not once did they suggest that the right to counsel at a trial should be denied.
As a matter of fact, what they constantly said was that the best way to shorten the appeals, the best way to cut down on the abuse, was to do it right the first time. They argued--not me--they, the prosecutors, Republican and Democrat--they said if you want to get this thing on track make sure there is a competent lawyer representing these people during this stage of the proceeding. Because they pointed out that most of the habeas corpus petitions that are granted, and the Federal courts grant many, most of the ones that are granted are granted because the court concludes that the defendant did not have adequate counsel, they were denied their right to know what a fair trial should be.
So here you had the prosecutor--not the defense bar--saying, `Make sure that the defendant has legal counsel and then give him one bite out of the apple.'
These are experienced people. These are the people who try these cases. These are the people who respond to these habeas corpus petitions.
I might say to those who are listening, I have to keep reminding people--habeas corpus. If a habeas corpus petition is granted it does not mean anyone goes free. The man or woman still stays behind bars. All it says is they get a new trial. This is not a petition for innocence that can be decided in terms of releasing someone. This merely says that a prisoner behind bars slips a paper between the bars and says: Send this to the judge, ask him to take a look at it because I do not think I got a fair trial.
That is what it is. And here we had for months of negotiations--months--worked out a compromise, and these hard-nosed prosecutors in our home States said make sure they have counsel. That is the best insurance for the public at large that we will not be wasting their money and their time.
Just last year the U.S. Supreme Court, which for the most part is no friend of the Federal habeas petitioner, recognized the importance of having a lawyer. In the case of McFarland versus Scott, the Court said:
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Quality legal representation is necessary in capital habeas corpus proceedings in light of the seriousness of the possible penalty and the unique and complex nature of the litigation.
To say that habeas litigation is unique and complex is an understatement. Habeas petitions must meet tightened pleading requirements. They must comply with the Supreme Court's intricate doctrines on procedural default and waiver. Federal courts can summarily dismiss any petition that appears legally insufficient on its face. And they can deny stay of execution where petitioner fails to raise a substantial Federal claim. But this provision tells these indigent defendants who have just been sentenced to death that they have no right to the help of a lawyer, that they might have to navigate the arcane, complicated and hazardous sea of the Supreme Court jurisprudence and statutory rules by themselves.
Quite apart from what I believe is the fundamental unfairness of this proposition, I also think at a practical level it will waste a lot of time and a lot of money to deny a lawyer at this point. First, ask any experienced lawyer or prosecutor. Almost all would rather have a competent adversary who can adequately frame and present issues over an incompetent one who does not have the first clue about how to present his arguments. Most experienced lawyers would tell you that having someone who has no training on the other side only slows things down because the trained lawyer and the judge end up doing a lot of extra work just to figure out what the untrained lawyer is trying to say and to make sure reversible error is not created.
What is more, under the Republican proposal, valuable resources will be squandered in litigation at the outset over whether counsel should or should not be appointed. If the judge ends up appointing counsel, all that time and money will have been wasted, and if the judge does not appoint counsel, the indigent death row inmate will be left to find his own way through some of the most complicated legal doctrines imaginable. This just does not make sense, in my view, as a practical matter or as a matter of principle.
We should not in our haste to hurry up executions lose sight of our commitment to constitutional values. We should not endorse proposals that increase the chance that, where execution is imminent, an innocent person be executed. We should not, I believe, sacrifice certainty in the name of speed, or fairness in the name of vengeance.
Most importantly, Mr. President, I really believe that everyone should understand we are not talking about changing any of the ways in which we deal with habeas corpus in this amendment. We are not talking about whether the Biden approach of only one petition or their approach of only one petition is the best one. We are not talking about whether we are going to cut the delay by a year or a month or a day. What we are talking about is a fundamental principle, one that, as it relates to the trial, has been established since Gideon versus Wainwright, and in many instances before that, and one as it relates to Federal habeas corpus that was established in 1988.
I ask my friend from Utah, because it may have been an oversight, whether he really intended to eliminate the right to counsel at trial as well as the right to counsel in a habeas corpus petition.
So I sincerely hope my colleagues will take a close look at this. This does not have to do with speeding up the process; this has to do with the fundamental fairness. Are we going to stick with constitutional principle established several decades ago in this country saying you are entitled to a lawyer at a trial and, if you cannot afford one, the court will appoint one as a matter of right and you are entitled to a lawyer at the Federal level when you file a habeas corpus petition? The practical implication of all that is that most prosecutors will tell you that will speed the process up, not slow the process down.
I yield the floor.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Of course, we will not deny counsel, nor will anybody; nor is it done, nor will it be done. The reason we oppose this amendment offered by the distinguished Senator from Delaware is this amendment would strike the much-needed reform in 28 U.S.C. 848(q) contained in the antiterrorism bill. Section 848(q), as many of our Senators and others are no doubt aware, provides funding for capital litigants; that is, people who have been convicted of capital crimes, to hire among other things investigators and expert witnesses to assist them with their habeas petitions. That just presumes that there will be a lawyer there as well, and there will be. I do not know of a case where a lawyer has not been appointed.
What you may not be aware of, however, is that section 848(q) permits the defense counsel to contact the judge ex parte; that is, without the prosecutor being present, and requests additional funding for experts, investigators, researchers, and the like. In other words, defense counsel can approach the judge outside the prosecutors presence and request the appointment of additional investigators or a new psychiatrist. The prosecutor is given neither the opportunity to present nor even a chance to oppose such an appointment.
To add insult to injury, the court can order payment and the appointment to run nunc pro tunc; that is, from the time the defense counsel initially hired the additional help. They can go way back. The defense counsel can go hire these people, have no way of paying them, and then all of a sudden have an ex parte proceeding, and the judge can order that they be paid back to the date that the defense counsel hired them. Talk about an abusive system. This means an investigator hired 6 months before can, when approved by the judge, receive payment for all of that investigator's past work, and in an ex parte proceeding, without the right of the prosecutor to be present. The defense counsel can use whatever information the investigator provides as demonstrating the need to hire that investigator and pay him from the time that he actually started working on the case.
There is absolutely no reason for ex parte proceedings on Federal collateral review after the judgment is final. While such an arrangement may arguably be appropriate at the trial level, it is not defensible for postconviction collateral proceedings. It is likely that the secrecy of these proceedings serves no other purpose than to permit the defense counsel to, outside of the presence of the prosecutor or the prosecution, argue their cases, obtain extensions of time, or receive additional unwarranted investigative expenses. This is simply indefensible.
There should be no need for a confidential hearing at this point in the proceeding. They will have had the hearing already. They will be on appeal. They will have had all kinds of constitutional protections under our bill, and then to allow an ex parte proceeding to go ahead, they will have raised their issues at the State level or they would be unexhausted. By the time the claim is presented in Federal court, all of these issues should have seen the light of day. Thus, no reason exists for defense counsel to hide whatever they may be investigating, nor should defense counsel be permitted to argue their petitions outside of the presence of other counsel.
It just makes sense that they would not. Section 848(q) has been greatly abused, and has resulted in enormous cost to the States. The reform contained in the antiterrorism bill is thus greatly needed. The Supreme Court has never required counsel in collateral proceedings. We do not make it discretionary to appoint counsel at trial; counsel must be appointed at trial. I have to say that any argument that we do not is ridiculous. But this is a very, very important point.
I hope our colleagues will vote against the Biden amendment.
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Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. I yield time to the Senator from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I certainly agree with the distinguished Senator from Delaware that we have to be meticulous on right to counsel. We cite Gideon versus Wainwright, and I was assistant district attorney when that case was decided in 1963. I am glad to say that in our Pennsylvania courts, in Philadelphia, counsel had been provided for indigent defendants long before the Supreme Court of the United States made that a constitutional mandate in the landmark Gideon case, written by Justice Black, which said counsel was required for anyone who is hauled into court to face felony charges.
On a very personal note, I got my introduction into criminal law when I was assisting defendants back in March 1958, when I took my first turn defending indigents going down to the prison in the city of Philadelphia and had, as a matter of fact, my first taste of what the role of the trial lawyer was, of criminal prosecutions, and of being in public service.
As I understand these provisions of the bill, it will greatly improve the extraordinarily technical and complicated procedure that when a State opts into the expedited procedures, there is additional responsibility on the State under the provisions of section 2261(b) to establish a mechanism for the appointment of compensation and payment of reasonable litigation expenses of competent counsel at the State postconviction proceedings brought by indigent prisoners.
On the point about ex parte contacts by defense counsel, I doubt that there is any real quarrel about the requirement that defense lawyers ought to make an application in the presence of opposing counsel and ought to make that application in advance of wanting to hire experts.
So it seems to me that whatever the state of the law is this is an advancement in requiring that States under this provision that I just read have competent counsel.
Mr. BIDEN. Will the Senator yield for a very brief question?
Mr. SPECTER. I do.
Mr. BIDEN. On page 125 of the Senator's bill, section 608, `Technical Amendments,' it says `Section 408(c) of the Controlled Substance Act is amended in paragraph 34(a) by striking `shall' and inserting `may'.'
When you go and look at that paragraph in the law, it says, paragraph 4(a) says `notwithstanding any other provision of the law to the contrary, in every criminal action in which the defendant is charged with a crime,' and then it goes on to say that the defendant, the present law says, `The defendant shall be entitled to the appointment of one or more attorneys and' et cetera.
But the way it is changed in your law, it says that `Notwithstanding any other provision of the law to the contrary, every criminal action in which a defendant is charged with a crime the defendant may be entitled.' You strike the word `shall' and insert `may.'
Mr. SPECTER. I do not have the referenced section. Let me get it.
Mr. BIDEN. All right.
Mr. SPECTER. Even if you had a statutory provision, it would not alter the constitutional mandate of Gideon versus Wainwright. Not that we should trifle with language which would in any way suggest undercutting the constitutional right to counsel, but if a statute in error were to say that, Gideon versus Wainwright would control. You simply cannot have a criminal proceeding where there is not counsel appointed for the defendant.
Mr. BIDEN. If the Senator will yield for 10 seconds, I think he is right, Mr. President, but I do not know why we should pass an unconstitutional statute, because this is clearly unconstitutional the way it is written.
Mr. SPECTER. If I may respond further to my colleague, if that is so, that is something that I would certainly concur ought to be corrected. And I would take a look at that section right now.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The absence of a quorum has been suggested. The clerk will call the roll.
Mr. HATCH. If the Senator will withhold.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I yield time to myself.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. This certainly is not unconstitutional. This has been worked very carefully by top legal experts, State attorneys general and others. The court has never mandated counsel in collateral proceedings, and I think that point has to be made. But there is going to be counsel appointed and always has been.
To be honest with you, what we are concerned about is that the way the amendment of the distinguished Senator from Delaware reads, we are going to wind up having nun pro tunc orders which will allow petitioners to have expert witness fees and investigators paid for from the time that the defense counsel wants to hire all these people. The law currently allows these payments to be made at excessive cost to the States on an ex parte, meaning one attorney only, proceeding. And that just should not be. So I hope that folks will vote this amendment down. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, with the consent of my colleague--and I failed to do this earlier--I would send a modification of my amendment, a draft error correction in my amendment to the desk.
Mr. President, I will withhold.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. I ask unanimous consent that the pending amendment be laid aside so that we can proceed to other business and also to work on some of the questions we have.
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.
Mr. HATCH. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, let me very briefly state where we are right now. You can see the staffs scurrying around here. We have reached a meeting of the minds on two-thirds of the amendments that I have offered here. The staff is trying to get precise language that would accommodate the mutual agreement we have made here thus far. But there is going to be one part of my amendment that is still going to be pertinent, and I will speak to that later. But the distinguished Senator from Pennsylvania and I would like to enter into a brief colloquy on what I think will be the only remaining part of disagreement in the Biden amendment that was sent up.
Very briefly, Mr. President, there were two sections of the Biden amendment, one relating to counsel for an indigent in the filing of a habeas corpus petition. The second provision is what the Senator from Utah spoke to, and that is the ability under present law for the counsel of an indigent person to go to a judge, without notifying the prosecutor he is going to the judge, and in private--we call it in camera--say, judge, I need you to authorize my ability to go hire a psychiatrist for the following reasons, or hire an investigator for the following reasons. The distinguished Senator from Utah is worried about that provision and suggests that that portion of the law is presently being abused. I do not believe it is abused.
I want to make a very brief statement now as to why I think that and why I am going to pursue in my follow-on amendment here the elimination of the provision in the Republican bill that would delete the possibility of an indigent defense counsel going to a judge on his own. The reason for that is as follows:
Right now, if I am a prosecutor and I get a lead as to how I can make my case better to prove the defendant did the deed, I can hire--I can use--an investigator to go investigate that. If I believe there is a need to make a case that the defendant is, in fact, perfectly sane and not insane, I can hire a psychiatrist.
I can use investigative tools without ever having to go to the defendant's counsel and say, `By the way, here is what I am going to do. I am going to hire this psychiatrist to prove that your defendant, your client, is sane.' Or, `I am going to hire two investigators to go down to Second and Vine and prove that the stoplight does not exist there,' or whatever.
So no one quarrels with that. If I am a lawyer who is hired by private funds to defend an accused person, I am not required to telegraph to the prosecutor that I have hired a private detective to investigate a lead in a particular city. I do not have to tell the prosecutor that.
My worry is that if we change the law as proposed in the core legislation, that what will be required for an indigent defense counsel is to walk into court, walk into the chambers of a judge and say, by the way, judge, we better call in the prosecutor, and sit the prosecutor down and say, now I want to say, judge, I need your authority to allow me to go hire an investigator. Here are the reasons that I want to hire the investigator. The prosecutor is sitting there taking notes about my case.
Now, that is why I think we should not delete this portion of the law.
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Mr. SPECTER. Would the distinguished Senator from Delaware yield?
Mr. BIDEN. I am delighted to yield.
Mr. SPECTER. I understand the concerns that the Senator has expressed. I believe that the bill as drafted is preferable, notwithstanding the arguments the distinguished Senator has raised. I will come to the specific question in just a moment here.
I think that ex parte communications are very problemsome in any kind of a case, but they ought to be eliminated to the maximum extent possible, which is why I think that it just is not a good idea to have one lawyer talking to the judge by himself.
But the language which I would focus on here is that which says no ex parte communication request may be considered pursuant to the section unless a proper showing is made concerning the need for confidentiality.
I concur with the Senator from Delaware when he says that there ought not to have to be disclosure by defense counsel in the presence of the prosecutor to matters which would prejudice the defendant in investigating the case on the facts, or as to getting expert opinion as to mental state and competency.
But the question I would have, and it is not really accommodated by the language, is that if there is a showing of the need for confidentiality, that would preclude the prosecutor gaining an upper hand in an unfair way. As a sponsor of this language, let me state that it is our intent here in this legislation that there not be a circumstance in which the defense is compelled to reveal, in front of the prosecutor, matters which would be prejudicial to his opportunity to present a defense.
Mr. BIDEN. Mr. President, in response to my colleague, he is coming awfully close to what I intend. If it is read the way in which the distinguished Senator from Pennsylvania reads it, which is that if there is a showing for the need for confidentiality, then the judge can meet only with the defense counsel and make his or her judgment. That, quite frankly, gets a lot closer to what I intend.
As the Senator feels, as a matter of principle, that we should err on the side of not having ex parte proceedings, I must acknowledge in these days, I err on the side of allowing indigent defense counsel to have the maximum flexibility with the judge.
While the staff is correcting the other portions of this, I would like to seek the counsel of my counsel, and determine whether or not it is still necessary to proceed with the last portion of this amendment.
I see the distinguished leader is on the floor. He always comes when he worries things are slowing down. I can assure the Senator they are not slowing down, they are moving along fast. We will get this done before the time would have been used had a rollcall vote been called. We are very close. I think that can happen.
So I do not want the Senator to get upset. We have Senator Levin waiting in the wings to go with his amendment.
Mr. DOLE. If the Senator will yield, I had just sort of passed through the Chamber and I did not see anything happening, but there is a lot of precedent for that.
As I understand, the next amendment would be the Senator from Michigan, Senator Levin, and there would be 50 minutes, 25 minutes on a side. Is that satisfactory?
Mr. LEVIN. That would be fine.
Mr. DOLE. Mr. President, I make that request.
The PRESIDING OFFICER (Mr. Ashcroft). Without objection, it is so ordered.
Mr. DOLE. While that debate is going on, it is my understanding that the Biden amendment is now pending, is that correct?
Mr. BIDEN. Mr. President, the answer is yes.
The reason I have counseled my friend from Michigan not to go yet is that the key staff people who know this issue very well, who will also want to be available to Senator Hatch as well as to me, are the very people negotiating this other item which is very close.
Apparently, we are now ready to go. We will be able to move right away to Senator Levin. We may be able to dispose of this right now. Apparently, we have reached our agreement.
Mr. DOLE. Does the Senator from Wisconsin have an amendment?
Mr. BIDEN. Mr. President, I think the Senator from Wisconsin wishes to speak on the issue.
Mr. FEINGOLD. That is right.
Mr. BIDEN. Maybe we can let him do that while we nail this down.
Mr. DOLE. If I understand, after the disposition of the pending amendment--if we work it out--fine; then the amendment of the Senator from Michigan; there would be two amendments remaining, one by the Presiding Officer and one by the Senator from Delaware.
Mr. BIDEN. That is correct.
Mr. DOLE. And as I understand, one would have a 60 minute time agreement, the other 90 minutes.
Mr. BIDEN. I would say we may not use all 90 minutes, but since it is the last amendment, I would prefer to have that cushion.
Mr. DOLE. The point is, we would like to complete action. We said no votes before 1 o'clock. I think it will be probably be before 2 o'clock, would be my guess. there will probably not be any vote before 2 o'clock, but we had hoped to complete action on this bill by 3 o'clock so we could start on telecommunications. We are probably going into the evening tonight on that bill.
I am told by the managers on that bill that it is a bipartisan effort, and may be able to complete that more quickly than we may have thought at the outset.
The bottom line is we need to finish this bill, and I know the managers are making progress. I appreciate it very much.
Mr. FEINGOLD. Mr. President, I wish to speak on the bill on the habeas corpus issue. I rise today to speak against provisions in S. 735 that are characterized as reforms in the habeas corpus appeals process. These items that are being referred to as reforms, in my view, would hasten the implementation of the death penalty and might well have the result of rushing innocent people to executions.
This is not, strictly speaking, a debate about the death penalty itself, but about the fundamental American right of due process.
Mr. President, there are several ways in which this fundamental right may be undermined by the pending bill, including the requirement that Federal judiciary defer to State courts. This is a major departure from more than 200 years of legal precedent, and to my mind, the most egregious change proposed by habeas reform supporters.
There is also a general 1-year statute of limitations--6 months in some cases--for filing a petition. These time limits fail to recognize the time needed to develop a proper habeas petition.
There is also a concern which the ranking member has been discussing about the elimination of the current absolute right of petitioners in capital cases to counsel for Federal habeas corpus petitions and replacing it with a provision that leaves assignment of counsel to the discretion of the court. I understand there has been some movement on that, some progress. I am pleased to hear it and look forward to reviewing it.
Mr. President, we have heard the arguments for streamlining habeas corpus procedures to limit death row appeals and implement the death penalty more quickly.
On a gut level, these arguments carry power; they paint a picture of convicted criminals contemptuously manipulating our justice system to avoid punishment for heinous crimes, all the while supposedly languishing comfortably in their prison cells. The arguments remind us of the lingering pain and frustration of victims' families, who are forced to wait, sometimes for years, before they reach the end of their ordeals that began with the violent death of a loved one. The arguments also speak to the problems of clogged courts and precious resources tied up in lengthy and, perhaps, duplicative habeas proceedings.
But the supporters of so-called habeas reform usually do not tell us other stories--the rest of the story.
They do not tell us about innocent defendants sent to death row because they could not afford competent counsel, and because some States do not have procedures in place to provide effective counsel to indigents. They do not tell us of murder defendants watching as their attorneys fail to properly prepare and present a defense, either because they lack resources or because they themselves are indifferent, incompetent, or inexperienced.
They do not tell us about innocent defendants convicted because of sloppy investigations or prosecutorial misconduct.
They do not seem to take into account the amount of time it takes to properly prepare and present a habeas petition.
They seem ready and willing to hasten to fatal judgment in the name of efficiency and to accept tragic mistakes as the necessary price for timely justice.
I am not willing to support this haste.
While I completely understand the pain of victims' families, I do not want to create more pain, and more victims of violence, by approving changes in the law that could send innocent people to their deaths. That in itself would be a dreadful crime.
We must be mindful that when we change the law, it applies to all, not just to the clever manipulators of the system that supporters of the habeas reform provisions of S. 735 seem to believe fill our death rows.
Consider the case of Nathaniel Carter, an innocent man wrongly convicted in 1982 of the stabbing death of his mother-in-law.
Mr. Carter is a man about my age. His story was told in the New York Times and in New York Newsday this past February. Ten witnesses placed Mr. Carter miles from the murder scene at the time the crime was committed. Nonetheless, he was sentenced to 25-years-to-life for a
crime he did not commit, only because New York State at that time did not have a death penalty statute.
It does now, and if that statute had been in effect in 1982, the sentencing judge made it plain that it would have been imposed, on Mr. Carter, an innocent man.
Mr. Carter spent 28 months in prison before being exonerated. His former wife eventually admitted committing the crime.
Nathaniel Carter was lucky, but had conditions been different, his luck would not have saved him. His boyhood friend, George Pataki, now Governor of New York, earlier this year signed that State's new death penalty statute into law.
It is worth considering what would have happened if Mr. Carter had faced the death penalty and if he would have faced the habeas reforms included in S. 735. He might well be dead for a crime he did not commit.
So the question today is are we willing to put Mr. Carter and others like him to death for the sake of hastening other deaths of some guilty parties?
The U.S. Supreme Court has handed down significant habeas decisions this year in two separate cases, decisions that should be considered in this debate.
On April 19, the Court, in Kyles versus Whitley, reversed and remanded the first-degree murder conviction of a Louisiana man, Curtis Lee Kyles. Mr. Kyles was sentenced to death.
After his conviction, it was discovered the State had not revealed certain evidence favorable to Mr. Kyles' case. His appeals to State courts won him a remand for an evidentiary hearing, but the State trial court afterward denied relief. He then went to the State supreme court, which denied his application for discretionary review.
However, the U.S. Supreme Court ruled that Mr. Kyles was entitled to a new trial because there was a `reasonable probability' that the disclosure of that evidence would have produced a different result than the original conviction.
Had Mr. Kyles not been able to file his Federal habeas petition, as might well be the case if we pass S. 735 with its habeas reform provisions, which include a higher bar to habeas petitions and deference to State courts, he might still be sitting in a Louisiana prison, awaiting death.
Earlier this year, in January, the U.S. Supreme Court handed down its ruling in Schlup versus Delo.
In that case, Lloyd Schlup, a prisoner in Missouri, was convicted of participating in the murder of a fellow inmate and sentenced to death.
However, Schlup, who was filing his second habeas petition, argued his trial deprived the jury of critical evidence that would have established his innocence. The U.S. district court had denied relief, stating Mr. Schlup had not met the `clear and convincing evidence' standard that the habeas reform provisions of S. 735 would impose.
The U.S. Supreme Court adopted a less stringent standard, that the habeas petitioner need show that the constitutional violation complained of `probably resulted in the conviction of one who is actually innocent.'
There is a body of evidence readily available to show that putting limits on the habeas corpus process could well mean innocent people will be affected in the ultimate way.
A 19-page staff report prepared last November for the House Subcommittee on the Constitution, formerly the Subcommittee on Civil and Constitutional Rights, found 52 cases in 20 years where innocent people were convicted of capital crimes and later won release, some of them by filing habeas petitions.
That document, entitled, `Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions,' might be worth reading before we decide to reform this system in this way that reminds me very much of something that is quite the opposite of reform.
At one point, the report states:
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These 52 cases illustrate the flaws inherent in the death sentencing systems used in the states. Some of these men were convicted on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence. In other cases, racial prejudice was a determining factor. In others, defense counsel failed to conduct the necessary investigation that would have disclosed exculpatory information.
I would also call to the attention of my colleagues a Yale Law School Journal piece entitled, `Counsel for the Poor; the Death Sentence Not For The Worst Crime But For The Worst Lawyer,' published in May 1994, by Stephen Bright, the director of the Southern Center for Human Rights, based in Atlanta, GA.
Mr. Bright's piece is a sobering, I might even say chilling description of problems encountered by defendants in capital cases.
Mr. Bright points out instances of States not providing sufficient resources to assigned defense counsel for proper investigation of a case. Compared to the resources available to an aggressive prosecutor, a defendant can begin with a significant disadvantage in a life-or-death fight.
Mr. Bright also describes cases of professional incompetence on the part of attorneys representing indigent clients in capital cases. Some of these defendants, after they were convicted and sentenced to death, were able to secure competent counsel, prove their innocence, and win just release.
Capital cases are complex, and the stakes are the highest imaginable, so experienced counsel is needed to properly represent a defendant. Still, we are seeing evidence that these cases are not always tried by such experienced counsel. Imagine sitting in the defendant's chair, your life on the line, knowing you are innocent, and watching your attorney fail to conduct proper investigation, fail to call witnesses, fail to present an adequate statement to the jury. Imagine that in this country.
When the day is done, that attorney walks home. You, the defendant, walk to death row. If you cannot find experienced, responsible counsel for an appeal, you walk to the gas chamber, the electric chair, or to a stark room with vials of poison to execute you.
We must not forget these stories as we debate reform.
Neither should we forget, in our frustration with the current system, that a habeas petitioner is not free to walk the streets while awaiting the ruling of the court. I think that is a misperception that some have. This man or woman is in prison, not sitting in a country club.
Many of the stories we hear during this debate rely on their persuasive power on the grief and rage many of us feel after a brutal murder. But let me speak a word of caution to those who stir those feelings. Grief and rage are not good foundations for making good policy, and emotions that strong can lead us to bad decisions and unintended consequences,
and in this case, to conclude, although it may not be very frequent and apparently is frequent enough, it literally can lead to the execution of innocent people.
I urge that the habeas provisions of this bill be removed. I do not think they are appropriate to this piece of legislation. Certainly, the bill could go forward without them, and it would be a far better piece of legislation.
I thank the Chair. I yield the floor.
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Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I came in at the very end to hear the remarks of my colleague from Wisconsin. I would like to thank him for his eloquence. I am not a lawyer, but I do believe that the Senator from Wisconsin has made an essential point. I think his point about habeas is as follows: Actually, regardless of your position about capital punishment--I think all of us in very good faith can have profoundly different views on this question--what you certainly do not want to ever see happen is that someone innocent is executed, and to in any way, shape, or form move away from the very rights that people have in the appeal process, which is a frightening possibility. I think the Senator from Wisconsin has spoken to this in a very eloquent way.
I thank him for his remarks.
Mr. HATCH. Mr. President, I send an amendment to the desk and I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Utah [Mr. Hatch] proposes an amendment numbered 1252 to amendment numbered 1199.
Mr. HATCH. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Delete lines 4 through 7 on page 125.
Strike lines 20 through 24 on page 106 and insert the following:
`(h) Except as provided in title 21, United States Code, section 848, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as
Strike lines 9 through 11 on page 108 and insert the following:
`Except as provided in title 21, United States Code, section 848, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel who is or becomes financially unable
Mr. HATCH. Mr. President, this modification will correct the text. I want to thank my colleague from Delaware for bringing our attention to it, as well as my colleague from Pennsylvania, who has worked with us to try to resolve this. We think we can resolve this matter so that we can then vote on the Senator's amendment when the time comes.
Mr. BIDEN. I urge adoption of the modification.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 1252) was agreed to.
Mr. BIDEN. Mr. President, I thank my friend from Utah. As usual, he is always reasonable.
The effect of what the Senator has just done is to modify the underlying bill that he introduced, the Hatch amendment, the Hatch bill, the Hatch-Dole bill.
It maintains in capital cases the requirement that counsel be appointed at trial and in a habeas proceeding, and it makes discretionary the appointment of counsel at those stages in noncapital cases.
That leaves one part of my original amendment that still needs to be resolved. We can speak to it in a very short order.
There was a third section of the existing bill that was attempted to be amended by my amendment.
I send that modification of my amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. Is the Senator modifying amendment 1226?
Mr. BIDEN. No, the Senator is modifying, actually, it is a whole new amendment. I am attempting to modify the underlying bill.
Mr. President, I want to make clear. I may have done something inadvertently here.
I do not mean to modify, I am sending the amendment to the desk, the purpose of which is to amend the Hatch amendment. We need a vote on it. I am not seeking unanimous consent for that.
The PRESIDING OFFICER. If there is no objection, the clerk will report the new amendment.
Mr. HATCH. Parliamentary inquiry: As I understand it, this is a substitute that will replace the pending Biden amendment.
Mr. BIDEN. That is correct.
The PRESIDING OFFICER. The Senator can either withdraw the pending Biden amendment 1226 and send up a new amendment, or he can modify the Biden amendment No. 1226.
Mr. BIDEN. That is correct.
Mr. President, if there is one thing I have learned after years, it is that it is very difficult to listen to staff and the Presiding Officer at the same time. I apologize.
I should have been listening to the Presiding Officer.
Would he mind repeating his question to me?
The PRESIDING OFFICER. The Senator could either modify amendment 1226 or submit a new amendment, either one.
Mr. BIDEN. I am submitting a new amendment.
Mr. BIDEN. President, I would like to withdraw amendment 1226. I hate numbers and acronyms. But that is what I wish to withdraw.
I send a new amendment to the desk, the number of which I have not the slightest idea.
The PRESIDING OFFICER. Amendment 1226 is withdrawn
The amendment (No. 1226) was withdrawn.
The PRESIDING OFFICER. The clerk will report the new amendment.
The legislative clerk read as follows:
The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1253 to amendment No. 1199.
Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
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Strike lines 10-22 on page 125.
Mr. HATCH. Mr. President, as I understand it, that amendment has been set over until some time at 1 o'clock, am I correct?
The PRESIDING OFFICER. No agreement has been reached on the disposition of that amendment.
Mr. HATCH. I move to table the amendment.
Mr. BIDEN. Mr. President, before he does that, I would like to be able to speak for 5 minutes to my amendment.
Mr. HATCH. I withhold that.
I ask unanimous consent that the vote occur on or in relation to amendment No. 1226, which is now 1253, at a time to be determined by the majority leader after consultation with the minority leader, but not before 1 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, if I can speak very briefly now to my new amendment, let me make sure that I have it straight for myself, let alone for all of my colleagues.
My original amendment was designed to do three things, to change three provisions of the Hatch--I will call it the bill; it is technically an amendment--the thing we are debating, the counterterrorism legislation that is before us. In that counterterrorism legislation, there were a number of provisions, three of which were as follows: One deleted the existing statutory requirement that there be counsel appointed for an indigent at a trial. The second, deleted an existing statutory provision requiring counsel be appointed at a habeas corpus proceeding for an