Congressional Record: June 7, 1995 (Senate) - Pages S7817 - S7828
From the Congressional Record Online via GPO Access - DOCID:cr07jn95-124cr07jn95-124 Part 2
S.735: Comprehensive Terrorism Prevention Act of 1995 - June 7, 1995
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.
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.
Amendment No. 1252 to Amendment No. 1199
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.
Amendment No. 1226 withdrawn
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.
Amendment No. 1253 to Amendment No. 1199
(Purpose: To amend the bill with respect to requring counsel for
federal habeas proceedings)
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:
Strike lines 10-22 on page 125.
Mr. HATCH. Mr. President, as I understand it, that amendment has been
[[Page S7818]] 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 indigent. And the
third amended existing law that says counsel for an indigent has the
right to go before a Federal judge by himself without the prosecutor
present and make a request to the Federal judge for additional
resources in order to adequately be able to protect his client's
constitutional interests, that is, go in to a Federal judge and say:
Judge, I do not have the money to hire an investigator like the
prosecutor has that I need to go to x town to interview three people.
The way the law exists now, that lawyer for the indigent can do just
what a lawyer for a nonindigent can do and what the prosecutor can do.
He does not have to tip his hand to the prosecutor to say this is what
I am about to do; this is what I am about to investigate; this is what
I want to check out.
It would be a little bit like in that God-awful O.J. Simpson trial in
that if every time the defense hired someone to investigate something,
they first had to go to the prosecutor and say: By the way, I am going
to hire this investigator to go look at the background of one of the
police officers, and I am going to do it on Tuesday, and I am going to
interview the following three people.
No one would expect defense counsel to have to do that with the
prosecution present, would not have to tell the prosecutor that.
Conversely, the prosecutor, when they are in the middle of a trial
and they say: My goodness--or before a trial--we better check out a
lead that we have; we have a lead that on September 12 the defendant
was with Mary Jones in Oshkosh; we are going to send an investigator to
go to see Mary Jones and find out whether that is true--if the
prosecutor had to say: By the way, defense counsel, on October 3 we are
going to send an investigator to meet Mary Jones in Oshkosh, that would
prejudice the State's case because the defendant could pick up the
phone and call Mary Jones and tell Mary Jones to leave town. It is not
reasonable.
What we did in the law not long ago, we said an indigent should have
the same rights. But an indigent does not have any money. The only
reason a poor guy's lawyer, the one that is appointed by the court,
goes to the judge is because he does not have the money. Otherwise, he
would not have to go to the judge. All he would have to do is say: OK,
I am hiring a guy to go check this out. But now he is able to go to the
judge. The reason he goes to the judge is that the judge is the guy who
dispenses the money. The judge is the guy to say: OK, I will give you
the money to hire that guy. You proved to me you need it. I will give
you the money.
Now, what my friends do here--and I understand their motivation; I
think it is pure--is they say, wait a minute now. That is costing
money, and should not the prosecutor, the State, have to be in that
room when the defense attorney is in that room saying: Judge, I have no
money, but I wish to hire an investigator to check this out.
They say that the State prosecutor should be able to be in that room
while that is being done. Well, they would not say that if it were a
civil case. You would not in a civil case say, by the way, you ought to
tell the other side that you are about to hire two people to go
investigate a witness who says they saw your client walking around
perfectly healthy when they claim to have a bad back. They say, well,
you would not have to telegraph that.
Just because somebody is poor, why should they have to give away
their case in front of the prosecutor?
And, by the way, to put it another way, how is the State hurt by
this? The State is not hurt in any way by this. There is a Federal
judge sitting there deciding whether or not there is a legitimate case
made to need this investigator or to need this additional resource.
And so what my amendment does is it strikes another provision in the
underlying counterterrorism bill, the Hatch bill. It strikes the part
that says that before a poor man's appointed counsel can ask a judge a
question, he has to have the prosecutor in the room with him while he
asks.
Now, my good friend from Pennsylvania, who is, along with the
chairman of the Judiciary Committee, one of the best trial lawyers in
this place, and their previous records demonstrate that, says
basically: Joe, do not worry about that because our legislation says--
and I will read it--``No ex parte proceeding, communication or request
may be considered pursuant to this section unless a proper showing is
made concerning the need for confidentiality.''
I understand what they intend by that. What they intend by that is to
solve the problem I have just raised, but under the law the use of the
phrase ``proper showing'' means that in front of the prosecutor you are
going to have to say: This is why I need this money, judge, to hire
this investigator.
The effect of that is in making your proper showing you have to make
it in front of the prosecutor. You have now given away the very thing
you wanted to avoid when you asked for the closed hearing. This closed
meeting with the judge has nothing to do with the facts of the case,
nothing to do with the outcome of the case, nothing to do with the
evidence that can or cannot be submitted in the case, nothing to do
with the substance of the case.
It has to do with the resources made available to a court-appointed
lawyer. He may go in and say: Judge, you have not given me enough money
to be able to send out the following 20 questions to prospective
witnesses. I want that money. Can you give me that money to send out
those letters? Or to provide transportation to get a witness.
Remember Rosa, that woman in the O.J. trial who was going to Mexico?
Well, it may be a situation where he said: Look, I have an indigent
witness who cannot get here. I do not have the money to get him here.
Can you give us the money to get him here? The judge may say: No, I
will not give you the money. I do not think it is essential for your
case. But if the judge thinks it is essential, he can say: OK, you are
authorized to buy a ticket to send that person here.
But what you do not want to do is to necessarily have to tell that to
the prosecution at this point because it may be a witness you turn out
not using.
Anyway, that is the crux of this thing, and although the intention to
correct my concern in the underlying remaining amendment is the law
says that ``upon a proper showing of the need for confidentiality'' you
can have this secret hearing, or this closed hearing, it does not get
it done because ``proper showing,'' we believe, is essentially a term
of art in the law. You have to make your case before the other person.
Now, the last point I will make--and this is, I think, an appropriate
point to make--is that the mere fact they put this in here evidences
the fact they know I am right. The mere fact they acknowledge that
there are circumstances under which confidentiality is appropriate
makes my case.
Think about that now. If they thought everything I am saying here
makes no sense, that it is not a legitimate point to raise, why would
they [[Page S7819]] provide for any circumstance under which there
could be a closed hearing in which only the judge and only the defense
counsel were present? They acknowledge by implication. They try to
correct it by saying ``proper showing.'' I spent, with my staff, 20
minutes trying to come up with some other phrase that would get it
done.
But the truth of the matter is, it is real simple. It is human
nature. If you have the prosecutor and the defense lawyer there and the
judge, where the Presiding Officer is, and I have to make my case to
you because you are not going to automatically grant what I request,
you want to know why I want it. So you have to ask me, ``Joe, why do
you want it?'' And in order for me to convince you to give me the
resources, I have to say to you in front of the other guy, ``Well, I
want it, Judge, because I think this witness is going to show that the
witnesses for the prosecution are lying.'' Bingo, out of the bag.
Now, if I could say to you, ``Judge, I can't say in front of the
prosecutor here. Could you ask the prosecutor to step out of the room
and I will tell you?'' If you could say that, then that will get it
done. I do not mind the prosecutor being in there as long as when it
comes to me to make my case as to why I need the resources that the
prosecutor is not there.
So I toyed with the idea of changing the law to say, ``No ex parte
proceedings, communication, or request may be considered pursuant to
this section unless a request is made concerning the need for
confidentiality.'' A request is made--a request--not a showing, because
when you move from request to showing, you are required to lay your
cards on the table. ``The very cards I have to show you, Your Honor, in
order to get you to allow me the money,'' I have to do it in front of
those folks.
We do not ask that for a defendant who can afford a lawyer. We do not
ask that for a prosecutor. We only ask that for somebody who is poor,
and that is a double standard. That is a double standard. To put it
another way, Mr. President, if we wanted to make it even for everybody,
we should require the privately paid defense lawyer to have to tell the
prosecutor every single investigator he or she hires and why they hired
them, and we should have to tell the prosecutor they have to tell the
defense lawyer every single thing their investigator is doing before
they do it. That would be fair. Now everybody is on the same playing
field. Now poor folks are treated just like wealthy folks. Prosecutors
are treated just like defendants. That would be fair.
But what do we have here? We have a situation where I am poor, he is
wealthy, and she is a prosecutor. She does not have to tell me anything
about what she is investigating as a prosecutor. He does not have to
tell her anything about what he is investigating as a defendant, he can
afford it. But I have to tell everybody. It is not fair; not fair. That
is what I am trying to correct.
The underlying statute is 848. My amendment strikes all of their
reference to that statute. I would be willing to do it by just
substituting the word ``request'' for ``a proper showing'' in their
language, but I do not think they are willing to accept that. So I am
willing, when it is the appropriate time for my colleague to respond,
if he wishes to, or move to table this--the bottom line, Mr. President,
is I just think this is about fairness.
Why should an indigent defendant have to tell the prosecutor all that
he is investigating? You say, ``They don't have to under the law.''
They do practically, Mr. President, because they do not have the
resources to hire these folks to do the investigation. Therefore, they
have to ask for that. In order to get the judge to give them those
resources, they have to tell him why they want those resources;
thereby, the effect is they have to tell them. They should not have to
do that. Wealthy defendants do not have to do it. Prosecutors do not
have to do it. Poor people should not have to do it.
I yield the floor and thank my colleague.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I appreciate what my colleague is saying,
and I know he, with his experience, feels very deeply about it. The
real problem is and the reason we have to oppose this amendment is
because at this point in the proceedings, we have had a trial, three
appeals, we have had other proceedings, but at this point in the
proceedings, to which Senator Biden is referring, all claims should
have been out in the open. At that point, they should be out in the
open. They should not be investigating new claims at this point.
Frankly, ex parte proceedings are simply unnecessary at this point in
the proceedings. This is just simply another way of dragging out the
process and the proceeding, permitting the defense counsel to argue his
case outside the presence of the prosecutor. That is why we have to
oppose this amendment.
I suppose we could argue that we should never finish these
proceedings; that there is no finality; that people who do not like the
death penalty want these things to go on forever hoping that nobody
ever has to live up to the judgment of the court or the jury, but that
is what we are trying to solve here.
The bill before the Senate protects constitutional rights. It
protects civil liberties. We give them every chance under our bill to
be able to pursue their claims. There is no reason why they should be
able to walk into a court room and get an ex parte hearing without
having counsel for the State present and having hired people to
investigate new evidence over the last 6 months and then get a nunc pro
tunc ruling of the court--in other words, that they should pay for
that, the State is going to have to pay for that, from the time they
hired them right up to the present time--in an ex parte proceeding. We
both argued this pretty much to death.
Mr. BIDEN. Mr. President, I would like to make one brief response.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, let me explain why, although it sounds
reasonable what my friend said. We have gone through the factfinding
stage, the trial, this is just on habeas appeals, and why do you want
to dig stuff up?
Many of the habeas appeals are premised on the following proposition:
The defendant says, ``Hey, look, I got convicted, I got convicted
unfairly because there was perjured testimony in my trial,'' like a
couple trials that were mentioned here today, actually happened. I am
not making these up, they happened.
It turns out, for example, the prosecutor had a witness that would
have said, ``I was with Charlie Smith and he couldn't have committed
the crime,'' and the prosecutor never let anybody know that.
Conversely, someone gets on the stand in the trial and lies and it is
later found out that they lied.
The reason why the defense attorney needs to be able to investigate
is to be able to root that out. You have a defendant saying, ``Look, I
am about to be put to death, but I'm telling you, Charlie Smith lied.
If you just go find Harriet Wilson, I found out she knows he lied.''
This is what happened. I am asking my staff to check the Carter case.
I am not sure of the facts in the Carter case. If I am not mistaken,
there was additional evidence found out after the trial--after the
trial. That is why the defendant needs the same tools available to him
or her that a wealthy defendant would need or the prosecutor needs.
That is all I am saying. Do not be misled by the notion that the trial
is over, therefore, there is no other factfinding to go on, you do not
need an investigator.
For example, in the Hurricane Carter case--I wanted to make sure I
was right on my facts here--after the trial was over, Hurricane
Carter's lawyers found out that there was a polygraph test given to one
of the witnesses, and the outcome of that polygraph test sustained
Hurricane Carter's assertion that he was innocent. It was never made
available. They never told anybody such a test was done. Therefore, it
took investigative work after the trial to go back and dig this out.
They dug it out.
Old Hurricane Carter ``ain't'' dead now, and the reason he is not
dead now is because they dug that, among other facts, out. That is the
investigative work we are talking about. Keep in mind now, this does
not in any way extend the number of appeals someone [[Page S7820]] can
make.
This does not in any way extend the time in which appeals have to be
filed. This is just simple fairness. Treat poor people like you treat
wealthy people during and after the trial.
I yield the floor.
Mr. HATCH. One more sentence. This is after direct appeals, after
collateral appeals have been done, after the State has decided the
issue on perjury, or to use his hypothetical, where they would have had
the opportunity. All we ask is that the State not be hammered. We have
had judges that do these things. States have had inordinate expenses,
and there is little or no justification for it.
Mr. President, I move to table the Biden amendment and I ask for the
yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. HATCH. I ask unanimous consent that the vote on the motion to
table the Biden amendment No. 1253 be at a time to be determined by the
majority leader after consultation with the minority leader, but not
before 2 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I ask that the Biden amendment No. 1253 be laid aside and
that the Senator from Michigan be recognized to offer his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I ask unanimous consent that at the conclusion or yielding
back of time on the Levin amendment it be set aside and the vote occur
on or in relation to the Levin amendment No. 1245 following the vote on
the motion to table the Biden amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. It is my understanding that the distinguished Senator from
Oklahoma has asked for some separate time.
I ask unanimous consent that he be given that opportunity to speak at
this time.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. HATCH. I ask that the time not be charged to Senator Levin or our
side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, first, I wish to compliment Senator Hatch
for his leadership on this bill, and I also compliment Senator Dole for
his leadership in bringing this bill to the floor and his willingness
to bring it to the Senate this early.
Mr. HATCH. If the Senator will yield, before the Senator gets into
his remarks, I want to also ask unanimous consent that immediately
following the Senator from Oklahoma the Senator from Michigan be
granted 10 minutes, without having the time count against any
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, again, I thank my friend and colleague
from Utah for his leadership on this bill and for his willingness to
bring it to the floor so quickly. I also thank Senator Dole, because I
remember after the tragedy of April 19 in my State, talking to Senator
Dole either that day or the next day, he stated to me his willingness
to bring legislation forward to the Senate as quickly as possible. He
has met that obligation. We do not usually move very fast in the
Senate. I appreciate his willingness to schedule this as early as
possible. I also appreciate the fact that finally we are going to bring
this issue to a conclusion.
It was my hope that we were going to finish it last night. I wanted
to be in Oklahoma today because of some base closing hearings both in
Enid and in Oklahoma City, Vance and Tinker Air Force bases. That is
very important. But I feel like this issue is most important for my
State and for many people across our country. It is vitally important
that we enact habeas corpus reform.
On Monday of this week I was honored to meet with about a dozen
Oklahomans who had lost family members in the Oklahoma City bombing.
These brave individuals came to their Nation's Capital to honor their
loved ones by asking the U.S. Senate to do one meaningful thing--enact
tough habeas corpus reform on the antiterrorism bill.
There are several important parts of the bill that is before us, but
the one key element that will help the victims of the Oklahoma City
bomber and other victims of violent crime in habeas corpus reform.
I will read a couple of the comments that some of the victim's
families made:
In Oklahoma City they had a press conference and came to
the State capitol to urge Congress and the President to
implement habeas corpus legislation that would significantly
reduce the appeals process and expedite the imposition of
death sentences. In strained, choked voices, they talked of
the tragedy that tore at the city, leaving shattered families
still only beginning to absorb the depths of their losses.
Connie Williams wore a button with her dead son Scott's
picture, bearing the words ``Beloved Scott, Our Special
Angel.'' His pregnant wife, Nicole, said, ``I do not want his
daughter to be in high school wondering why his killers are
still on death row.''
She is right.
Some of the families came up to our Nation's Capitol on Monday. One
was Diane Leonard. Her statement was, ``Our pain and anger are great.''
Her husband is gone, a Secret Service agent killed in the bombing in
Oklahoma City. I might mention he was an agent of the Secret Service
for 25 years. She added, ``But it would be much, much greater if the
perpetrators of this crime are allowed to sit on death row for many
years.'' She is talking about the pain and anger are great, but it
would be much greater if the perpetrators were allowed to sit on death
row for many years. She is a former Tulsa resident. Diane Leonard, her
voice cracking with emotion, described in graphic detail the injuries
her husband suffered. She urged Senators to have the courage to amend
the law to allow death sentences to be carried out in 2 or 3 years.
I respect the fact that some of our colleagues feel differently on
the death penalty. We have heard some of them speak eloquently today.
They are opposed to habeas corpus reform in large part, in many cases,
because they do not want the death penalty to ever be carried out. I
respect their position, but I do not think they are correct. I think
they are wrong.
Mr. President, I fear that our criminal justice system is in critical
condition. The past couple of years have shown a dip in America's crime
rate, but over the course of years our crime rate has gone up and up
and up.
Today, an American is about 2\1/2\ times more likely to be a victim
of a property crime than he or she was in 1960.
Today, an American is about four times more likely to be a victim of
a violent crime than he or she was in 1960.
And in the face of these sobering numbers and the numbing real-life
stories that appear on our television sets every night, our criminal
justice system appears less and less able to dispense justice.
This bill, if it contains tough, new habeas corpus reforms, can be an
essential step along the path to reform.
No adult in Oklahoma can consider the probable prospects for the
Oklahoma City bomber without reflecting on the man who until a few
weeks ago was Oklahoma's most notorious killer. That man is Roger Dale
Stafford who, in 1978, murdered nine persons in two separate incidents.
Roger Dale Stafford was given nine death sentences for those murders,
but he is living still.
Roger Dale Stafford does have an execution date; it is July 1, 1995.
But Roger Dale Stafford has had execution dates before, and they all
have come and gone. Whether this date will be the last I do not know
for his attorney has announced that he will seek another stay of
execution. Incidentally, this is the same attorney who has been
appointed to represent Timothy James McVeigh, the man being held in
connection with the Oklahoma City bombing.
Roger Dale Stafford's crimes are well known in Oklahoma, but the fact
that they are well known does not reduce their ability to shock and
sadden anyone who hears of his wickedness.
On June 21, 1978, after searching unsuccessfully for a business to
rob, Roger Dale Stafford, his wife, Verna, and his brother, Harold,
decided to stop their car, raise the hood, and feign distress, in hopes
that a wealthy and vulnerable Good Samaritan would come
[[Page S7821]] along. They pulled their car to the side of the road,
and Verna Stafford attempted to flag down passing cars. Roger and
Harold Stafford lay in wait in the darkness.
Eventually, a blue Ford pickup truck with a white camper shell pulled
off the road, and the driver, Air Force Sgt. Melvin Lorenz approached
Verna Stafford with an offer to help. Sergeant Lorenz looked under the
hood of the Stafford automobile and said that he could find nothing
wrong. At that point, the Stafford brothers confronted Sergeant Lorenz
and demanded his wallet. Roger Stafford was armed with a pistol.
Sergeant Lorenz informed the Staffords that he and his family were on
their way to his mother's funeral in North Dakota, and that he could
give the appellant some money, but not all that he had. Roger Dale
Stafford then shot Sergeant Lorenz twice, killing him.
Hearing the shots, Linda Lorenz, Sergeant Lorenz's wife, got out of
the pickup truck and ran toward her husband. Verna Stafford knocked
Mrs. Lorenz to the ground, and Roger Stafford shot her as she fell,
killing her.
The murderers then heard a child calling from the back of the camper.
Roger Stafford approached the camper, cut a hole in the screen, and
fired his pistol into the darkness, forever silencing 11-year-old
Richard Lorenz.
For the Lorenz murders, Roger Dale Stafford was convicted on three
counts of first degree murder and sentenced to death for each murder.
That was first of Roger Dale Stafford's murderous episodes in
Oklahoma. A month later, he struck again:
On July 16, 1978, Roger, Verna, and Harold Stafford robbed the
Sirloin Stockade Restaurant in Oklahoma City. The trio waited in the
restaurant's parking lot until all the customers had left, then knocked
on the side door of the restaurant. When the manager answered, he was
greeted by Roger and Harold Stafford pointing guns at him. They forced
him to take them to the cash register and the office safe.
Harold and Verna Stafford held five employees at gun-point while
Roger Stafford had the manager empty the office safe which contained
almost $1300. All six employees were then ordered inside the
restaurant's walk-in freezer. Once inside, Roger Stafford shot one of
the hostages, then both men opened fire on the remaining employees.
Roger Stafford told Verna that it was time for her to take part. He
placed his gun in her hand and helped her pull the trigger.
All six Sirloin Stockade employees died as a result of the shootings.
They were: Terri Michelle Horst, age 15; David Gregory Salsman, age 15;
David Lindsay, age 17; Anthony Tew, age 17; Louis Zacarias, age 46; and
Isaac Freeman, age 56.
For the Sirloin Stockade murders, Roger Dale Stafford was convicted
on six counts of first degree murder and sentenced to death for each
murder.
As I said, Mr. President, Roger Dale Stafford lives still, and each
day his penalty becomes farther and farther removed from the crimes for
which it is so eminently justified. Justice still waits for Roger Dale
Stafford.
And, why the delay? Because since his convictions, Roger Dale
Stafford has made at least 18 reported appearances in Federal and State
courts. He has been before the U.S. Supreme Court six times--1985,
1985, 1985, 1984, 1984, 1984--before the U.S. Court of Appeals for the
10th Circuit once, 1994, before the Oklahoma Supreme Court once, 1986,
and before the Oklahoma Court of Criminal Appeals nine times, 1993,
1992, 1991, 1990, 1987, 1985, 1985, 1983, 1983. This list does not
include appearances which were not officially reported. It omits one
pretrial appearance at an appellate court, 1979. And, it omits all
activity at the trial courts.
Mr. President, 17 years ago he murders teenagers, he murders an
innocent family that is trying to help him out, and he is still on
death row. That is not justice delayed, that is justice denied.
What about the families that lost teenagers in that incident? What
about the families that lost loved ones--178--in the Oklahoma City
bombing incident; 178, with over 400 injured? Are we going to be
telling them 15, 17, 20 years from now, ``Well, the appeals process is
just very cumbersome,'' and have taxpayers paying not only the expense
for taking care of the perpetrators of the crime, should they be
convicted and receive the death sentences, as they surely should and
hopefully will. What are we going to tell those families?
I met with some of the victims that lost two children. I met with
them Friday. A young lady in her early twenties lost both her kids. I
met with a daughter that lost her father just last Monday. I met with
three spouses that lost their spouse. One of the individuals that was
here was an uncle who lost his nephew, whose wife is expecting. What
about that child who will never see her father alive? Are we going to
tell that child, ``Well, we are sorry, but the person that was
responsible for murdering your dad is still in Federal court, he is
still in prison living pretty well, watching TV; Uncle Sam, or the
Government, is taking care of him, giving him three meals, making sure
all his rights are protected,'' and allow him to abuse the process for
15 years or so? I do not think so. That is not justice to the families.
That is not justice, period.
So we need habeas corpus reform. We have needed it for a long time. I
am glad the President has reversed himself and now agreed that we need
this on this bill. This will allow the families to at least have some
knowledge that there will be justice, and hopefully we will move very
quickly.
Mr. President, I want to make some general comments on habeas corpus
reform because we have needed this for a long time. First, our habeas
system does not promote justice. The availability of habeas corpus to
State prisoners, beyond the various remedies and layers of review
available in State courts, has little or no value in avoiding
injustices or ensuring that the Federal rights of criminal defendants
are respected. The typical applicant has already secured extensive
review of his case in State courts, having pursued a State appeal and
often having initiated collateral attacks in State courts. The claims
raised by such defendants are normally without substance and are likely
to be technical, that is, to allege procedural irregularities which
cast no real doubt on the defendant's guilt.
Let me just mention the cases in Oklahoma City. I talked to a Federal
judge, the first judge I was responsible for getting appointed in
Oklahoma. 1982 was his first year on the court. They had 193 prisoner
appeals made to the Federal courts--193. That happened to be about 10
percent of their caseload. In 1992, 10 years later, they had 630. The
number more than tripled, an increase to 25 percent of their caseload.
Prisoners are finding it pretty easy to make appeals, and they are
appealing to the Federal system. There is no limit to the number of
appeals. They can appeal for anything. They can appeal on habeas that
they were incorrectly convicted, or they can appeal and say that
somebody next door is smoking or somebody next door has a radio too
loud. And they take it all the way to the Federal court. That is
happening hundreds of times.
In Oklahoma City and the western district in 1992, there were 630
prisoner petitions. Some of the prisoners are specializing in this.
There is nothing else to do. So they have legal access, they have
access to the library, and they can abuse this process for all it is
worth. And so what if it ties up the court? So what if it keeps them
kind of busy? So what if they are as guilty as they possibly can be? So
what if they have been convicted and gone through every appeal in the
process and been to the Supreme Court?
Roger Dale Stafford has had his case to the Supreme Court six times,
and every time the Supreme Court said, ``Guilty.'' Yet he files another
petition. I expect he has another one in the typewriter right now. It
just so happens his attorney is a very competent, very professional,
very good attorney, Steven Jones. He also happens to be the same
attorney that will be defending Mr. McVeigh. I do not want the victims
of the Oklahoma City bombing to have to wait 17 or 20 years for
justice. That is why we need habeas corpus reform.
Second, the habeas system demeans federalism. The present system of
review is demeaning to the State courts and pointlessly disparaging to
the efforts to comply with Federal law in criminal proceedings. A
single Federal judge is frequently placed in the position of reviewing
a judgment of conviction that was entered by a State trial
[[Page S7822]] judge, reviewed and found objectionable by a State
appellate court, and upheld by a State supreme court. An independent
determination of the contentions raised by the applicant is required of
the Federal judge although he may have no doubt that the State courts
were conscientious and fair. State judiciaries are presumed to be
incapable of applying Federal law, or unwilling to do so.
I know Senator Kyl will have an amendment later that would address
that, and I compliment him for his amendment and plan to support him in
his efforts.
Third, habeas corpus defeats the demand for finality. The current
system of Federal habeas corpus defeats the important objective of
having an end to litigation. The costs of such a system were eloquently
described by the late Justice John Harlan in Mackey v. United States,
401 U.S. 667, 690-91 (1971):
Both the individual criminal defendant and society have an
interest in insuring that there will at some point be the
certainty that comes with an end to litigation, and that
attention will ultimately be focused not on whether a
conviction was free from error but rather on whether the
prisoner can be restored to a useful place in the community.
* * * If law, criminal or otherwise, is worth having and
enforcing, it must at some time provide a definitive answer
to the questions litigants present or else it never provides
an answer at all. * * * No one, not criminal defendants, not
the judicial system, not society as a whole is benefitted by
a judgment providing a man shall tentatively go to jail
today, but tomorrow and every day thereafter his continued
incarceration shall be subject to fresh litigation on issues
already resolved.
Fourth, habeas procedures are wasteful. The current system is
wasteful of limited resources. At a time when both State and Federal
courts face staggering criminal caseloads, we can ill afford to make
large commitments of judicial and prosecutorial resources to procedures
of dubious value in furthering the ends of justice. Such commitments
come at the expense of the time available for the stages of the
criminal process at which the questions of guilt and innocence and
basic fairness are most directly addressed. Former Chief Justice Warren
Burger made the following points:
I know of no society or system of justice that takes such
scrupulous care as we do to give every accused person the
combination of procedural safeguards, free legal counsel,
free appeals, free records, new trials and post conviction
reviews of his case. I have seen cases--and this occurs in
many courts today--where three, four, and five trials are
accorded to the accused with an appeal following each trial
and reversal of the conviction on purely procedural grounds.
* * * In some of these multiple trial and appeal cases the
accused continued his warfare with society for eight, nine,
ten years and more. In one case more than 60 jurors and
alternates were involved in five trials, a dozen trial judges
heard an array of motions and presided over these trials;
more than 30 different lawyers participated either as court-
appointed counsel or prosecutors and in all more than 50
appellate judges reviewed the case on appeals. I tried to
calculate the costs of all this for that one criminal act and
the ultimate conviction. The best estimates could not be very
accurate, but they added to a quarter of a million dollars.
The tragic aspect was the waste and futility since every
lawyer, every judge and every juror was fully convinced of
the defendant's guilt from the beginning to the end.'' 25
Record of the N.Y.C. Bar Assoc. 14, 15-16 (Supp. 1970).
Fifth, the way our habeas system is used nullifies capital sentences.
The constitutionality of the death penalty has been settled since 1976.
Thirty-eight States now authorize capital punishment, but the
inefficiency of current court procedures has resulted in a de facto
nullification of capital punishment laws. The public interest
organizations that routinely involve themselves in capital cases have
fully exploited the system's potential for obstruction. Delay is
maximized by deferring collateral attack until the eve of execution.
Once a stay of execution has been obtained, the possibility of carrying
out the sentence is foreclosed for additional years as the case works
its way through the multiple layers of State and Federal courts.
Mr. President, this country desperately needs reform in its criminal
justice system. Habeas corpus reform is an important part of that
necessary reform, and this bill is an excellent place to start
reforming habeas corpus.
I agree with the families of the Oklahoma City dead: Habeas corpus
reform is an inadequate, but necessary, memorial to the memories of
those who died in that dreadful, murderous blast.
Again, I compliment Senator Hatch for his leadership, and Senator
Dole for bringing this to the floor of the Senate and Senator Dole for
pushing the Senate for the last several days, including last night.
I am glad that finally we are going to have this bill come to a
conclusion and have cloture, and allow us to have habeas corpus reform
which, again, in my opinion, is the most significant element of true
crime control that we can enact.
I am hopeful we can send a positive signal to the families of the
victims in the Oklahoma City bombing and tell them that, yes, we are
going to have an end to these endless appeals, and that justice will be
done and it will be done, as President Clinton said, in a timely manner
as well.
The PRESIDING OFFICER (Mr. Faircloth). The Chair recognizes the
Senator from Michigan.
Mr. ABRAHAM. Mr. President, I rise today in support of this
legislation as well. I also pay tribute to my colleague from Oklahoma,
whom I think today presented an extraordinarily strong and compelling
argument in favor of the reforms of habeas corpus that we are looking
at today, and against a series of amendments.
Later in my remarks I will address some of those reforms and that
issue, although I am unable to think of how I can address them more
vividly and effectively than the Senator from Oklahoma has already
done.
Today I rise to also just indicate my overall support for this
legislation. Clearly, the people in our country and in our State of
Michigan in particular stand back and look at the events which took
place in Oklahoma City with great concern. They have asked us to act. I
believe this bill properly incorporates the best ideas as to the sorts
of actions we should be taking at this time to address the problem of
terrorism, wherever it may originate.
At this point I would like, in my remarks, to highlight a series of
provisions in the bill I have worked on with our outstanding floor
leader and my good friend, the Senator from Utah, with the majority
leader, and others. These provisions would facilitate the deportation
of aliens who have committed serious crimes while in the United States.
The provisions at issue, contained in title III, section 303(e) of
the bill, require that aliens who are convicted of serious crimes in
courts of law in this country be deported upon completion of their
sentences without any further judicial review of the order of
deportation. These expedited deportation procedures will apply to the
almost half a million aliens currently residing in this country who are
deportable because they have been convicted of committing serious
felonies.
Under the Immigration and Nationality Act, aliens who are convicted
of felonies after entry are already deportable. They are rarely
actually deported, however, because criminal aliens are able to request
equitable waivers from the courts and other types of judicial review
that were never meant to apply to convicted felons. Such abuse of
process operates to prevent the order of deportation from becoming
final.
Notably, both the administration's antiterrorism bill and S. 735
contain expedited deportation procedures for a small class of aliens
reasonably suspected of planning future terrorist activity. The
administration's bill, however, makes no provision for rapid
deportation of aliens who have actually committed crimes. This, despite
the fact that the Attorney General has said that the removal of
criminal aliens from the United States is one of the administration's
highest priorities and that our prisons and jails are crowded with
criminal aliens. The substitute to S. 735 remedies that omission.
According to the FBI, foreign terrorists have been responsible for
exactly two terrorist incidents in the United States in the last 11
years: the World Trade Center bombing and a trespassing incident at the
Iranian mission to the United Nations. While the World Trade Center
bombing was obviously a very serious matter, it should not be the
exclusive focus of our efforts to take strong action to protect
American citizens from criminal conduct by non-citizens.
[[Page S7823]]
More than 53,000 crimes have been committed by aliens in this country
recently enough to put the perpetrators in our State and Federal
prisons right now. An estimated 20 to 25 percent of all Federal prison
inmates are noncitizens; in California, almost one-half of the prison
populations are noncitizens. According to a 1995 Senate Report on
Criminal Aliens in the United States, a conservative estimate of the
total number of deportable criminal aliens presently residing in the
county is 450,000. All of these aliens have committed at least one
serious crime in this country. For that reason all are deportable under
the law. They have not been deported because they have been able to
prevent the order of deportation from ever becoming final by seeking
repeated judicial review.
The grounds on which criminal aliens are legitimately entitled to
waivers of deportation are extremely narrow. To avoid deportation,
criminal aliens essentially must prove a case of mistaken identity--
that the alien is not who the Government thinks he is; that he is not
an alien, at all; or that he has been pardoned or had his conviction
overturned. Mistakes of this order do not happen often. Mistakes of
this order certainly have not happened 450,000 times--for each of the
deportable criminal aliens currently in the country. Rather, the
alien's capacity to demand successive judicial review, even wholly
merit less judicial review, grinds the deportation process to a halt.
Meanwhile, the Immigration and Naturalization Service does not have
adequate facilities to house this many criminal aliens. As a result,
the great majority of these convicted felons are released back to our
streets after serving their sentences, with instructions to report
several months later for a hearing before the INS.
Needless to say, the majority of criminal aliens released from
custody do not return for their hearings. Having been returned to the
streets to continue their criminal predation on the American citizenry,
many are rearrested soon after their release. Thus, for example, a
recent study by the GAO found that 77 percent of noncitizens convicted
of felonies are rearrested at least one more time. In Los Angeles
County alone, more than half of incarcerated illegal aliens are
rearrested within 1 year of their release.
The provisions at issue will put an end to this abuse of process by
doing the following:
First, they will prohibit the Attorney General from releasing
criminal aliens from custody prior to deportation.
They will also eliminate judicial review for orders of deportation
entered against criminal aliens--although criminal aliens will still be
entitled to challenge their orders of deportation before the Board of
Immigration Appeals.
In addition, these provisions will require deportation of criminal
aliens within 30 days of the conclusion of the alien's prison sentence
in most circumstances.
Finally, they will apply these expedited deportation to aliens who
have committed the ``General Crimes'' listed in section 1251 of title 8
of the United States Code. These include crimes such as murder, rape,
drug trafficking, espionage, sabotage, and treason.
These reforms are extremely reasonable. Aliens in this country who
commit these crimes will still be afforded all the due process
protections and lengthy appellate and habeas corpus review afforded
U.S. citizens on the underlying offense. Moreover, once those appeals
have run and the conviction has been upheld, the alien will continue to
be entitled to a hearing before an immigration judge to determine
whether an order of deporatation should be entered. And if an order of
deportation is entered, the alien will still retain the right to appeal
the order to the Board of Immigration Appeals. The substitute to S. 735
only eliminates additional judicial review for criminal aliens beyond
this point.
Without the rapid deportation provisions for criminal aliens in this
legislation, aliens who are convicted felons will continue to be
deported at the current pace, that is about 4 percent a year. At this
rate--assuming no alien is ever convicted of another felony--it would
take 23 years to deport all the aliens presently residing in the
country who are under felony convictions. Meanwhile, many will be
released back into society to prey on more American citizens. No
country, no matter how civilized, should continue to tolerate this
abuse.
For that reason, as well as the many others that have been advanced
over the past few days, we should enact this legislation, and quickly
too. I urge the Senate to do just that.
Finally, Mr. President, I would like to say a few words about another
very important set of provisions in this bill: the sections that would
reform habeas corpus.
Like the provisions concerning deportation of criminal aliens, the
habeas corpus reforms in the bill correct a common abuse of judicial
process in our criminal justice system. In this case they correct the
obstructive and abusive manipulation of the writ of habeas corpus by
criminals who have been convicted of serious violent crimes.
Right now, the delay made possible by abuse of this writ allows
convicted criminals to essentially overrule a State's entire criminal
justice system. By filing repetitive or frivolous habeas corpus
petitions, criminals are able to delay the imposition of capital
sentences indefinitely. This delay in turn seriously undercuts the
moral authority of the people, through their elected representatives,
to impose this punishment on people who have committed extremely
heinous crimes.
This is not fair to the people, who are entitled to determine the
punishments to be accorded crimes committed in their States. Nor is it
fair or even humane to the families of the victims of crime.
The habeas reforms in the antiterrorism bill impose reasonable limits
on the use of the writ--reforms that are long overdue. I support these
reforms and I urge the Senate to enact the antiterrorism bill.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1245 to Amendment No. 1199
(Purpose: To retain an avenue for appeal in the case of prisoners who
can demonstrate actual innocence)
Mr. LEVIN. Mr. President, I call up an amendment at the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Michigan [Mr. Levin] proposes an amendment
numbered 1245 to amendment No. 1199.
Mr. LEVIN. 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:
On page 106, line 12, strike ``and'' and all that follows
through the end of line 17 and substitute the following:
``or
``(B) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that constitutional error has occurred and that
more likely than not, but for that constitutional effort, no
reasonable factfinder would have found the applicant guilty
of the underlying offense.''
On page 110, line 3, strike ``and'' and all that follows
through the end of line 9 and substitute the following:
``or
``(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that constitutional error has occurred and that
more likely than not, but for that constitutional error no
reasonable factfinder would have found the applicant guilty
of the underlying offense.''
Mr. LEVIN. Mr. President, it is my intention to offer and modify this
amendment. I will do that in a moment so that the amendment clarifies
language that more precisely tracks the Supreme Court language which is
the subject of the amendment.
I ask unanimous consent that the modification be in order.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S7824]]
Amendment No. 1245, as Modified, to Amendment No. 1199
Mr. LEVIN. Mr. President, I send a modification to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The amendment (No. 1245), as modified, is as follows:
On page 106, line 13, strike clause (B) and substitute the
following:
``(B) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that a constitutional violation has probably
resulted in the conviction of a person who is actually
innocent of the underlying offense.''
On page 110, line 4, strike clause (ii) and substitute the
following:
``(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that a constitutional violation has probably
resulted in the conviction of a person who is actually
innocent of the underlying offense.''
Mr. LEVIN. Mr. President, Justice Clark, discussing the Magna Carta,
said the following:
Ever since the Magna Carta, the greatest right of personal
liberty has been guaranteed, and the procedures of the Habeas
Corpus Act of 1679 gave to every Englishman a prompt and
effective remedy for testing the legality of his
imprisonment. Considered by the founders as the highest
safeguard of liberty, it was written into the Constitution of
the United States that its privilege shall not be suspended
unless, when in cases of rebellion or invasion, the public
safety may require it. Its principle is embedded in the
fundamental law of 47 of our States.
Justice Clark went on to say:
It has long been available in the Federal courts to
indigent prisoners . . . both the State and Federal
Government to test the validity of their detention. Over the
centuries, it has been the common law world's freedom writ.
We repeat what has been so truly said of the Federal writ.
There is no higher duty than to maintain it unimpaired and
unsuspended, save only the cases specified in our
Constitution.
Mr. President, the right of habeas corpus over the years has been
abused. It has been overused and excessively attempted to be utilized
in many cases. Over the years, the Congress and the courts have
attempted to rein in some of those excesses, and have done so. Both the
Supreme Court and the Congress have in a number of ways attempted to
restrict the utilization of the right of habeas corpus so that it would
not be abused. The bill before us, in many respects, however, has
reduced the utilization of the right of habeas corpus excessively. One
particular that I want to address in the next few minutes would deny
access to the writ on the part of somebody who a court believes is
actually innocent.
I want to repeat that because this is a very narrow group of cases
that we are talking about. The case which this amendment addresses is
the case where a court determines that the prisoner filing the writ is
probably actually innocent.
I hope that sounds startling because this is a startling subject. The
subject is whether or not we are going to execute somebody where a
court finds that the person is probably--that is the key word--actually
innocent of the underlying offense. I want to go back into history in
order to give the background of this issue.
As I have said, the court as well as the Congress has found that the
writs of habeas corpus have been used excessively--the petition, more
accurately, seeking a writ, has been used excessively. This has been
happening for many, many years.
The court in the Schlup case, which is the case I want to discuss at
some length, a 1995 case, went through the history of writs of habeas
corpus, and they found that the writ had been excessively sought, that
there had been repetitious petitions, there had been successive writs
sought, and that the burden on the courts became too great.
So in the Schlup case, the majority said the following about the
history of the applications for writs of habeas corpus.
To alleviate the increasing burdens on the Federal courts
and to contain the threat to finality and comity, Congress
attempted to fashion rules disfavoring claims raised in
second and subsequent petitions.
And they then went through congressional enactments starting in 1966.
They also then talked about what the Court has done to restrict the
applicability and the availability of petitions for writs of habeas
corpus, and said the following in the Schlup case.
These same concerns--
And that is the overutilization--
resulted in a number of recent decisions from this Court that
delineate the circumstances under which a district court may
consider claims raised in a second or subsequent habeas
petition. In these decisions, the Court held that a habeas
court may not ordinarily reach the merits of successive
claims absent a showing of cause and prejudice.
The Court then quotes an opinion written by Justice O'Connor in the
Carrier case. And they said in Schlup that Justice O'Connor has noted
the following:
In appropriate cases the principles of comity and finality
that inform the concepts of cause and prejudice must yield to
the imperative of correcting a fundamentally unjust
incarceration.
So there is an exception if the Court finds a fundamental miscarriage
of justice. That is what courts are for. Courts can be abused but
ultimately what they must seek to do is avoid a fundamentally unjust
incarceration and a fundamental miscarriage of justice. And this is
what the Schlup court wrote.
To ensure that the fundamental miscarriage of justice
exception would remain ``rare'' and would only be applied in
the ``extraordinary case,'' while at the same time ensuring
that the exception would extend relief to those who are truly
deserving, this court explicitly tied the miscarriage of
justice exception to the petitioner's innocence.
That is what we now must address this afternoon. It is what do we do,
what standard do we adopt when, on a second application for a petition
of habeas corpus raising a constitutional defect, a petitioner
persuades a court that he or she is probably innocent of the underlying
crime? Will we permit a second petition to be granted so that there can
be a hearing? We are not talking about now release from prison. We are
just talking about whether a hearing will be available to somebody who
persuades a court that he or she is probably innocent and is awaiting
execution.
Now, Justice O'Connor in the previous Carrier case, which is relied
on heavily in Schlup, said the following:
In an extraordinary case, where a constitutional violation
has probably resulted in the conviction of one who is
actually innocent, a Federal habeas court may grant the writ
even in the absence of a showing of cause for the procedural
default.
And the Court went on to say:
Explicitly tying the miscarriage of justice exception to
innocence
And I want to repeat that word because that is the heart of this
amendment. We are only talking about people who are probably innocent
as found by a court and as to whether or not they should be denied a
hearing on the ground that their application is a second application
for the writ and not the first application but where a court now for
the first time, faced with new evidence, is satisfied that that
applicant is probably innocent.
And here is what the Court said:
Explicitly tying the miscarriage of justice exception to
innocence thus accommodates both the systemic interest in
finality, comity, and conservation of judicial resources, and
the overriding individual interest in doing justice in the
``extraordinary case.''
The Court went on to say the following:
Experience has taught us that a substantial claim that
constitutional error has caused the conviction of an innocent
person is extremely rare. To be credible, such a claim
requires petitioner to support his allegations of
constitutional error with new reliable evidence--whether it
be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not
presented at trial. Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual
innocence are rarely successful.
And the Court said that:
A petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.
Now, that is a pretty strong test for being eligible for a hearing on
a second writ, that a court must find an applicant is probably
innocent, meaning that no reasonable juror--no reasonable juror--would
find that person guilty beyond a reasonable doubt. And the issue
becomes whether or not we want to require that person to be executed.
Is that person going to be executed? Are we going to deny, as this bill
does, a Federal court the right to grant a hearing on a second writ of
habeas corpus when a petitioner introducing new evidence convinces a
court [[Page S7825]] that he or she is probably innocent? Will we deny
that court that opportunity?
Now, what the bill does is adopts the dissent in Schlup, which has a
higher standard--not the standard of probability but the standard of
clear and convincing. And that is the issue on this amendment, whether
or not we, in the Senate, are going to overturn the Supreme Court
decision in Schlup, which said that if a court is convinced that a
person is probably innocent, that is enough for that court to grant a
hearing on a second or subsequent application for writ of habeas
corpus, or will we adopt the dissent in Schlup, which says, no,
probability of innocence is not enough. Even if somebody is probably
innocent of the underlying offense, we are going to execute that person
unless there is clear and convincing evidence, evidence above and
beyond probability.
The case itself in Schlup was a case where this man was already a
prisoner and was convicted of first-degree murder, a murder that
occurred in prison, and was sentenced to death. In the habeas corpus
proceedings, he produced a videotape showing him in a cafeteria lunch
line at the time the killing occurred in a different place, sworn
testimony from a prison guard stating that Schlup could not have
committed the murder, and sworn testimony of five eyewitnesses that
Schlup was not present and did not participate in any way in the
murder.
The Federal court of appeals judge found--this is the court of
appeals now, before the Supreme Court--the court of appeals judge found
``truly persuasive evidence that Mr. Schlup is actually innocent.''
Despite that, the majority of the court of appeals upheld the death
sentence and refused to grant a hearing on the new evidence. The court
held that under the clear and convincing test, the test that they
thought they should follow, they would not grant a hearing in his
application.
Earlier this year, the Supreme Court overruled that court of appeals
saying that the clear and convincing test, which is the test in the
bill before us, failed to provide a meaningful avenue by which to avoid
a manifest injustice in cases of actual innocence.
The Court ruled that the fair test for the relief sought is whether
``a constitutional violation has probably resulted in the conviction of
one who is actually innocent.'' I am going to repeat it because that is
the issue in this amendment. The issue is whether we ought to adopt the
majority in Schlup or whether we ought to reverse it. The bill reverses
it and goes with the dissent. The amendment would allow the majority of
the Supreme Court in Schlup to utilize that test in habeas corpus
proceedings, the test being that whether a constitutional violation has
probably resulted in the conviction of one who is actually innocent.
I think most of us feel that habeas corpus has been abused, that
technicalities have been raised by people who are guilty. This
amendment raises the opposite issue. This amendment raises the question
of whether or not we are going to use a technicality to deny a hearing
to someone who is probably actually innocent.
``Probably actually innocent,'' is that enough for a hearing when
someone is on death row or not? Or will the procedural technicality be
used to deny that person--a rare case--a hearing because there had been
a previous petition filed? And to meet the test of the Supreme Court,
the lower court must find that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence.
Mr. President, we are having to face up to the narrowest group of
cases, the case where there is a claim that a court finds probably
correct that an applicant for the great writ is probably innocent of
the underlying crime. We cannot avoid this by talking about
technicalities. We are the ones who will determine whether a procedural
technicality will stand in the way of a hearing for that small group of
prisoners who persuade a court that they are probably innocent of the
underlying crime.
This may be and probably is only a very few percent of persons who
are in prison on death row, but we know that these cases exist. There
were two of them in 1995. In addition to the Schlup case, we had the
case of Curtis Kyles. In that case, the Supreme Court found that the
prosecution had improperly suppressed evidence of Mr. Kyles' innocence
and that this evidence would have made a different result reasonably
probable--reasonably probable. The Court agreed with Judge King of the
fifth circuit, who expressed ``serious reservations about whether the
State has sentenced to death the right man.''
Mr. President, how much time do I have left?
The PRESIDING OFFICER. The Senator has 4 minutes 7 seconds.
Mr. LEVIN. I thank the Chair and reserve the remainder of my time.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah has 25 minutes.
Mr. HATCH. Mr. President, again, what we are trying to do here is put
some finality into the habeas corpus procedures. The Senator's
amendment just allows another loophole that is unjustified and allows
further appeals. Because liberal judges who are opposed to the death
penalty do not want the death penalty imposed, there will be an
incentive for them to find that there is probable innocence under this
amendment and the whole process will have to start over again,
regardless of whether the petitioner is truly innocent of the crime.
The Hatch substitute, our bill, the Specter-Hatch bill, permits
successive habeas corpus petitions in death penalty cases where the
petitioner may be innocent. If the petitioner is innocent, he or she
can have successive habeas corpus petitions and our bill contains a
safety valve which permits Federal courts to hear legitimate claims.
The Levin amendment, however, weakens the standard of review for
determining whether someone is innocent from a ``clear and convincing''
standard, which is what we have in our bill, to a subjective
``probably'' innocent standard.
In addition, the amendment guts the bill's prohibition against
subsequent provisions by allowing successive habeas corpus petitions
where the death row inmate does not dispute his having committed the
homicide in question but claims the death penalty should not be
imposed.
The amendment offered by Senator Levin, while it seems reasonable, is
problematic. When the Court rules on these issues, it does not write on
a clean slate--and I am talking about the Supreme Court. The Supreme
Court has repeatedly held, for example, that Federal courts are not the
forums in which to relitigate criminal cases. At the initial trial,
society's resources have been concentrated in order to decide the
question of guilt or innocence. Therefore, a petitioner making a claim
of actual innocence falls well short of satisfying his burden if the
reviewing court determines that any juror reasonably could have found
the petitioner guilty of the crime.
The proposed amendment attempts to follow the Supreme Court's recent
decision in Schlup versus Delo in which the Court exacerbates the
confusion in the lower courts, undermines the finality of lawful
convictions and creates a greater uncertainty as to the standard under
which a court must hold an evidentiary subsequent hearing.
I know that I have said this many times before, but we are dealing
with postconviction collateral proceedings, not a trial. This is
posttrial. Habeas corpus review is a postconviction remedy. This is
postjury verdict. This is postsentence by the court. What it means is
the jury has already convicted the individual and his conviction and
sentence have been upheld on appeal. The individual had at least two
State appellate reviews which are subject to Supreme Court review. The
individual has gone to the intermediate appellate court and has gone to
the supreme court of the State.
I might add, the appellate courts have upheld the conviction and the
State habeas petitions have thus been exhausted. In other words, there
has been the trial, there has been a review by the intermediate court,
there has been a review by the supreme court of the State. The State
procedures have been exhausted.
It also means that petitions to the Supreme Court have been filed. In
other words there have been two rounds of State review both of which
were the subject of a petition for certiorari to the Supreme Court of
the United States of America, and that both of those Supreme Court
petitions [[Page S7826]] have been denied; and at least in collateral
cases, as a general rule, the Governor also has ruled on the case
because there has been a petition for clemency; and the Government has
also reviewed the claim in a clemency petition and has denied it, too.
At this point, the prisoner's conviction has been proved beyond a
reasonable doubt. It has been upheld on direct and State collateral
review. The conviction has also been upheld on the death row inmate's
Federal habeas petition. It is at this point in the process--after all
of these reviews--where my colleague from Michigan wants to give
individual Federal judges broad, subjective authority to determine
whether someone is innocent of the crime he or she was convicted of. We
allow such a determination by a Federal court but we propose a more
certain standard rather than the subjective standard employed in my
colleague's amendment.
The proposed amendment would require the district court to hold an
evidentiary hearing or grant a second successive petition if it could
be shown that a constitutional violation probably resulted in an
erroneous conviction.
First, what does probably mean in the law? Who knows? This standard
will gut our habeas corpus proposal here today. Would it be a 50-
percent chance of innocence? Is that what it means? If that is so, then
I think if the prisoner were probably innocent, his conviction would
have been overturned long ago in all of these proceedings up through
the State courts to the Supreme Court, to the Governor, for clemency.
Second, the proposed amendment would let a court decide independently
that a defendant might be innocent. We go through that every day in the
current system. Judges who do not want the death penalty to be imposed,
who are violently opposed to it, for any reason, decide there is
another reason to let this be prolonged again, all at a tremendous cost
to the States and the victims of these crimes.
So what we are saying is, the proposed amendment would let a court
decide independently that a defendant might be innocent, that there was
constitutional error, and that he should not have been convicted. This
is a wholly appropriate standard that we have in the bill.
The Levin amendment will simply serve to permit these prisoners who
have been duly convicted, their convictions upheld, all of their
constitutional rights protected, their civil liberties protected to
continue to raise new claims. It allows judges who does not like the
death penalty to make subjective determinations, many years after the
conviction, to proclaim the probable innocence of a long-convicted
murderer. It simply serves to permit a prisoner to drag out his
proceedings and further delay justice.
Delayed justice is justice denied. We are frustrated by that all the
time. We have a man in California sitting on death row almost for 50
years--successive habeas corpus petitions all the time, on and on. In
Utah, we had the Andrews case. It lasted 18 years. He filed over 30
different habeas corpus petitions--30 different habeas corpus
proceedings--over that 18 years before the death penalty was finally
carried out.
All this does is continue the old system, the old business as usual.
Frankly, because we all know the distinguished Senator from Michigan is
one of the most eloquent advocates against the death penalty in this
body--and I have respect for him; I believe he is very sincere on this
issue--I think it is fair for him to argue against the death penalty
straight up. But to just provide a mechanism whereby there can be
another appeal because some liberal judge decides there ought to be an
appeal and will delay a sentence that the law allows, I think is wrong.
I know of no case--not one--that has been cited to the Judiciary
Committee, in its years of study on this issue, in which Federal habeas
corpus review has been successfully employed to release an innocent
individual from an erroneous State court conviction. It is a myth.
This amendment is just another method to try to get another appeal
and delay the ultimate imposition of the sentence.
Where is the case of an innocent person needing Federal habeas corpus
review in order to prove his or her innocence? Take Randall Dale Adams,
the Texas death row inmate who was the subject of the documentary ``The
Thin Blue Line.'' How did he establish his innocence after he was
convicted? Not through Federal habeas corpus, but through the Texas
State court proceedings--procedures similar to those available in
virtually every State in the Union today.
Take the case of Walter McMillan, who was wrongfully convicted and
sentenced to die for the brutal robbery-murder of an Alabama
convenience store clerk. Was it habeas corpus that saved his life? No,
it was the State of Alabama. Despite being granted relief through the
States, both of these men were called before the Senate Judiciary
Committee by a colleague of ours, who opposes the death penalty, to
demonstrate why our Nation needs more Federal habeas corpus review
rather than less. Federal habeas corpus review had nothing to do with
it.
The State procedures were adequate and did the job in protecting
their innocence and finding their innocence. Yet, they brought them up
here to try and show that Federal habeas corpus review is important.
I do not know of one case where Federal habeas corpus review has
saved the defendant. But the State procedures have. In the Federal
courts, the Federal direct appeal procedures have. That sort of logic,
as in the present amendment, cannot even be called reform even when it
expands the rights of convicted murderers.
I mention these cases--Randall Dale Adams and Walter McMillan--not
because I advocate abolition of Federal habeas corpus. It is clear that
we protect it in the Specter-Hatch antiterrorism bill. I am not
advocating abolition of Federal habeas corpus. The responsible scholars
and lawyers and law enforcement professionals do support banning and
getting rid of Federal habeas corpus. There are many bright people who
think that this system is out of whack and that we do not need Federal
habeas corpus. But I am not arguing that position.
We have provided for protection of Federal habeas corpus, but we do
it one time and that is it--unless, of course, they can truly come up
with evidence of innocence that could not have been presented at trial.
There we allow successive petitions. Any time somebody can show
innocence, we allow that. I simply wish to provide my colleagues some
perspective on this issue. We in the Senate, whose duty it is to enact
into law the community's legitimate interest in seeing justice done
within the parameters of the Constitution, should soundly reject the
present amendment to the Dole-Hatch bill. Indeed, the Senate has a
particular duty with respect to habeas corpus. As the inscription on
the Dirksen Senate Office Building states, ``The Senate is the Living
Symbol of our National Union of States.''
The amendment before us will not only hinder and potentially defeat
our efforts to pass a true crime bill this year, but in so doing, this
amendment will also force an unprecedented and substantial intrusion
into the State criminal justice system.
So I hope that our colleagues will vote against this amendment, as
sincere as it is and as sincere as it is being offered. It is another
way of just delaying the process because some people do not like the
death penalty. I understand that. I think there are good arguments on
both sides of the death penalty. I myself would very seldom use the
death penalty and only in the most heinous of cases. On the other hand,
I think it is essential that we have it on the books. There are those
who would just as sincerely argue the other side, that there should be
no death penalty, that it is cruel and unusual--even some of our
Supreme Court Justices of the past and maybe now and in the future. But
do not try to do it by gumming up the procedural process posttrial that
has plenty of protections for defendants.
There is no reason for this expensive litigation process with
frivolous appeals to continue. That is what we are fighting today. And
we are acknowledging that we protect the constitutional rights and
civil liberties of the defendants in these matters.
I know the Senator from Michigan is very sincere and I acknowledge
that. I have a great deal of respect for his sincerity and
intelligence. But this amendment should not pass because I
[[Page S7827]] think it would make this process a continuation of the
current process, and I think that would be a tragedy.
I reserve the remainder of my time.
Mr. LEVIN. Mr. President, I will take 30 seconds to tell my friend
from Utah this is not a death penalty amendment. This is a habeas
corpus amendment. The language in the bill reverses the Supreme Court
opinion in the Schlup case. That opinion found that the man in that
case was probably innocent. I do not think anyone in this body wants to
execute someone who is probably innocent and deny that person a
hearing.
Now, Justice O'Connor said--not your liberal judge--one of the
majority in the Schlup case, said, ``The court today does not sow
confusion in the law. Rather, it properly balances the dictates of
justice with the need to ensure that the actual innocence exception
remains a 'safety valve' in an 'extraordinary case'.''
The issue is that the bill before the Senate reverses the Supreme
Court. The Levin amendment is not trying to bring something new into
this. The Levin amendment is trying to preserve a Supreme Court opinion
of a few months ago, joined by Justice O'Connor. That is the issue.
I yield the remainder of my time to my friend from Illinois.
Mr. SIMON. Mr. President, I thank my colleague, and I rise in strong
support. I think we all know that I oppose the death penalty. It is a
penalty we reserve for those of modest means. If a person has enough
money, that person will never get the death penalty in this country.
That is the reality.
That is not the question, though I find it of interest that today's
New York Times has a story that the South African Supreme Court
yesterday unanimously outlawed capital punishment in South Africa. We
are one of the few countries left in the Western world that still has
the death penalty.
The question is whether someone who is probably innocent--that is the
language of the Levin amendment--probably resulted in the conviction of
a person who is actually innocent of the underlying offense.
Now, whether a person is for the death penalty or against it, no one
wants to send someone to prison who is probably innocent. We have done
that.
I can remember when we were debating this issue when I was in the
Illinois General Assembly and a man was about to be executed, and
suddenly someone in the State of Georgia confessed that he had
committed the crime.
Now, that case is clear and convincing evidence. I have to say that
the bill without this amendment would take care of that case.
There are a lot of other marginal cases. We are not just saying a
marginal case. The Levin amendment says where a person is probably
innocent, a person ought to have that chance to appeal. I cannot
believe anyone who really looks at this--the Senator from North
Carolina, the Senator from Utah, my colleagues--I cannot believe they
will vote against that.
Maybe Members will vote against it if they are not aware of what the
amendment does, and a briefing is right at the desk on either your side
or our side. These briefings--and I do not mean this disrespectfully to
the fine staff--but it is very difficult to condense in a few words
what these amendments do.
The Levin amendment says ``If you are probably innocent, you ought to
have the chance to appeal.'' I have a hard time believing that is not
going to be accepted unanimously. Apparently, it may not be.
I am pleased to support the Levin amendment, proud to support it and
vote for it.
I believe I have consumed my time, Mr. President. I hope I have been
able to get the message across.
Mr. President, I ask unanimous consent to have an article printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, June 7, 1995]
South Africa's Supreme Court Abolishes Death Penalty
(By Howard W. French)
Johannesburg, South Africa, June 6.--In its first major
decision, South Africa's recently created supreme court
abolished the death penalty today, ending a decades-old
practice of executing criminals convicted of serious crimes
that had once given the country one of the world's highest
rates of capital punishment.
Announcing the unanimous decision, Arthur Chaskalson,
president of the Constitutional Court, said, ``Everyone,
including the most abominable of human beings, has a right to
life, and capital punishment is therefore unconstitutional.''
That the Constitutional Court chose the death penalty issue
for its first major ruling underscored the importance of the
issue in a country where for decades execution was used not
just as a weapon against common crime, but as a means of
terror in enforcing the system of racial separation known as
apartheid.
``Retribution cannot be accorded the same weight under our
Constitution as the right to life and dignity,'' Mr.
Chaskalson said. ``It has not been shown that the death
sentence would be materially more effective to deter or
prevent murder than the alternative sentence of life
imprisonment would be.''
In a strong show of support for the ruling, each of the
court's 11 judges issued a written opinion backing the
decision. The Constitutional Court was created earlier this
year as an equal to the executive and legislative branches.
South Africa stopped executing prisoners in 1992 on the
orders of the former National Party Government. With violent
crime rampant, the number of prisoners awaiting execution on
death rows has since swollen to 443. Over 1,100 people were
executed in the 1980's. Death sentences were carried out by
hanging.
Reacting to the ruling, Justice Minister Dullah Omar said
the prisoners would be quickly moved off of death row.
According to prison wardens, the announcement set off a round
of wild celebration among condemned inmates at Pretoria's
Central Prison.
Elsewhere, however, comments on the ruling revealed the
continuing depths of political division among South Africans
that typically run along racial lines, one year after the
formal end of apartheid.
On radio talk shows today, reactions were deeply split
between black and white, with the former typically applauding
the abolition of the death penalty, while the latter,
invoking high crime rates, criticized what many whites say in
a gradual slide away from law and order.
``Under the A.N.C., the message is that people can commit
any crime and get away with it,'' said one caller to a
Johannesburg radio station, referring to the African National
Congress, the party of President Nelsen Mandela.
Crime has become a highly emotional issue among many whites
here, even though blacks are overwhelmingly represented among
the victims of violence. Last weekend in Johannesburg alone,
42 people were killed, 477 businesses and homes were broken
into and 34 women were reported raped.
While whites complained of a spreading sense of impunity,
many blacks reacted by noting that they had been
disproportionately made victims of the death penalty in the
past through wrongful arrests and convictions.
Moreover, with the death penalty much more likely to be
applied to blacks than to whites under apartheid, capital
punishment had become as powerfully emotional an issue for
many blacks as crime has become for many whites.
Mr. Mandela himself made this point in a point in a
statement to the court during his trial for incitement in
1962. ``I have grave fears that this system of justice may
enable the guilty to drag the innocent before the courts,''
he said. ``It enables the unjust to prosecute and demand
vengeance against the just. It may trend to lower the
standards of fairness applied in country's courts by white
judicial officers to black litigants.''
Two years later, in another trial, Mr. Mandela was
sentenced to life imprisonment for conspiracy to overthrow
the government, a judgment that his supporters saw as a
victory because the death sentence was not imposed, even as
they deplored Mr. Mandela's conviction.
Conservative white groups condemned the ruling while many
predominantly black political organizations portrayed it as a
victory for racial justice.
The predominantly black African National Congress, the
country's largest political party and the leading force in
the fight against apartheid, hailed the ruling as a victory
for the country's new democracy, saying, ``never, never and
never again must citizens of our country be subjected to the
barbaric practice of capital punishment.''
``It's making us a civilized society,'' Archbishop Desmond
Tutu, the Anglican primate of Southern Africa, told the South
African Press Association. ``It shows we actually do mean
business when we say we have reverence for life.''
Archbishop Tutu, a leading campaigner against apartheid,
called the death penalty ``obscenity,'' saying it, in effect,
said to criminals, ``We want to show you that we care about
life so we kill you too.''
Amoung white political groups the reaction to the ruling
was typically negative, running from carefully worded
statements of displeasure to outright hostility.
Saying that the overwhelming majority of South Africans
supported the death penalty, F.W. de Klerk, vice president in
the country's coalition transition Government, said that his
National Party, a predominantly white party that had governed
the country for decades under apartheid, would campaign to
reinstate capital punishment.
Other conservative white groups reacted even more harshly.
``The rights of murderers [[Page S7828]] and rapists are
being held in higher regard than those of their victims,''
said one Afrikaner youth organization.
For his part, Mr. Mandela, who served 27 years of a life
sentence under a succession of apartheid governments made no
public comment today on the ruling. The President's office,
however, issued a statement intended to reassure those who
fear a growing leniency toward crime.
``The President also wishes to emphasize that this decision
has no bearing on the commitment of the Government to tackle
the problem of crime, and particularly violent crime, with
all the resources and determination it can muster.''
Mr. BIDEN. Mr. President, parliamentary inquiry. Is there any time
remaining?
The PRESIDING OFFICER. There is no time.
Mr. BIDEN. I ask unanimous consent that I be able to speak 2 minutes
on the Senator's amendment.
The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so
ordered.
Mr. BIDEN. Mr. President, this is pretty clear here.
What the Senator from Michigan does in his amendment is stick with
one part of the change in the law. Right now there is no requirement in
the law to file the successive petition that says that the defendant
has to explain why he did not file the petition before.
Now, under the Hatch approach and under the approach if adopted by
Senator Levin, that is tightened up. Even Senator Levin is saying we
have to show cause why this was not raised before. There is only one
disagreement before the Senate. That is, what standard of proof do you
have to bring forward to show you are innocent?
By implication, they are agreeing a person ought to be able, if there
is evidence of innocence, ought to be able to have another petition.
Senator Levin says the same thing.
I think every American would say you ought to have another crack at
it. The difference is, they say ``clear and convincing.'' Right now,
the Supreme Court says, no, you do not have to go that far, but you
have to go pretty far. You have to sufficiently establish the
constitutional violation. You said what happened to you in the lower
court, you say your constitutional rights were violated in a way that
probably resulted in the conviction of a person who is actually
innocent.
Are we going to quibble over putting someone to death on whether or
not we abide by the Supreme Court majority that says all you have to do
is say ``probably'' this resulted in a conviction of an innocent
person?
But they want to go even further. They want to say, no, ``probably''
is not enough. You have to show that there is clear and convincing. The
only thing they do not say is ``beyond a reasonable doubt.''
Keep in mind, folks, what everybody misses, when we talk about habeas
corpus, is this is not about having a convicted person go free. That is
not what this is about. Nobody under habeas corpus petition goes free.
They get a new trial. That is all they are saying here. I sure think
this is distinction with a difference that can mean the difference
between life and death of an innocent person. I hope they will yield on
``probably'' and not ``clear and convincing.''
Mr. HATCH. Mr. President, I do not want to prolong this. I think I
have 11 minutes left. I will just take a minute or two.
What I am saying, there has been a trial, conviction, there have been
posttrial proceedings, there has been an appeal to the intermediate
court in the State, an appeal to the supreme court of the State, then a
petitioner of certiorari to the Supreme Court, all of which are denied,
and a petition for clemency to the Governor. He denies. In every case
where we found actual innocence, or any kind of innocence, it has been
through those proceedings, not in Federal habeas.
I have to say that all of this is another attempt to just prolong the
process and allow--call it what it is--a liberal judge who does not
believe in the death penalty to prolong the process, again at a
tremendous cost to the States, everybody concerned, and I think a cost
to justice.
People out there are starting to say, my goodness gracious, is there
no finality to the decisions, the just decisions, of the court?
I have to say the cases that we can cite where people have been
helped, where innocence has been proven, have been through that State
process, not through the Federal habeas process. It is just another
layer of expense.
I am not going to knock those who are trying to do this because they
will sincerely do anything to stop the death penalty. I respect that.
If I was a defense lawyer again, I would do anything to try and
preserve somebody's life. But I have to say it would be pretty cynical
to keep doing what is being done in some of these cases today. We can
call it sincerity, but the fact of the matter is it is a legal
obligation to do what you can. But there is an element out there in the
legal community which, having failed to convince the public and the
courts that the death penalty is wrong, has set about to eliminate the
death penalty defect by making death penalty litigation too costly and
protracted.
As a lawyer I do everything I can within the law, and if we provide
this law, I will be doing that, and so will every other defense lawyer.
It is another appeal, another cost to the States, another frivolous
appeal which we are trying to limit here while still giving the
protections we need in these matters.
The Levin amendment relies on the term ``actual innocence.'' Actual
innocence means--and let me just read out of the leading Supreme Court
case on it, Sawyer versus Whitney. This is what they held:
1. To show actual innocence one must show by clear and
convincing evidence that but for a constitutional error no
reasonable juror would have found the petitioner eligible for
the death penalty under the applicable State law.
The amendment before us, the Levin amendment, will not help the truly
innocent. This amendment will further undermine the proper role of
habeas corpus and that is the effect of the amendment. The effect of it
is not meant to overturn the fundamental defects. The Specter-Hatch
habeas bill has the safety valve. It has a safety valve available for
the truly innocent. We provide successive petitions for those who prove
innocence. The proposed amendment will do nothing to help the truly
innocent. It is merely another means of delaying justice. There are
plenty of procedures and mechanisms in the Specter-Hatch bill to
protect the truly innocent. So we do not need to continue to prolong
this.
I move to table the Levin amendment. I ask for the yeas and nays.
The PRESIDING OFFICER. Does the Senator yield his remaining time?
Mr. HATCH. I yield my remaining time.
Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. HATCH. Mr. President, I ask unanimous consent the vote on the
motion to table the Levin amendment be deferred to a time to be
determined by the majority leader, after consultation with the minority
leader, after 2 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I now ask the Levin amendment be laid aside so the
distinguished Senator from Arizona can call up his amendment. I
understand there is to be a 1-hour time agreement.
I ask unanimous consent there be a 1-hour time agreement with the
time equally divided--in the usual form, we will put it that way.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I also ask unanimous consent at the conclusion or yielding
back of the time on the Kyl amendment that it be set aside and the vote
occur on or in relation to the Kyl amendment following the vote on the
motion to table the Levin amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
