Congressional Record: June 7, 1995 (Senate) - Pages S7828 - S7840
From the Congressional Record Online via GPO Access - DOCID:cr07jn95-124cr07jn95-124 Part 3
S.735: Comprehensive Terrorism Prevention Act of 1995 - June 7, 1995
The Senator from Arizona is recognized.
Amendment No. 1211
(Purpose: To stop the abuse of Federal collateral remedies)
Mr. KYL. Mr. President, I have an amendment at 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 Arizona [Mr. Kyl] proposes an amendment
numbered 1211.
[[Page S7829]]
At the appropriate place, insert the following new section:
STOPPING ABUSE OF FEDERAL COLLATERAL REMEDIES.
(a) In General.--Chapter 153 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 2257. Adequacy of State remedies
``Notwithstanding any other provision of law, an
application for a writ of habeas corpus in behalf of a person
in custody pursuant to a judgment or order of a State court
shall not be entertained by a court of the United States
unless the remedies in the courts of the State are inadequate
or ineffective to test the legality of the person's
detention.''.
Mr. KYL. 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:
At the appropriate place, insert the following new section:
SEC. . STOPPING ABUSE OF FEDERAL COLLATERAL REMEDIES.
(a) In General.--Chapter 153 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 2257. Adequacy of State remedies
``Notwithstanding any other provision of law, an
application for a writ of habeas corpus in behalf of a person
in custody pursuant to a judgment or order of a State court
shall not be entertained by a court of the United States
unless the remedies in the courts of the State are inadequate
or ineffective to test the legality of the person's
detention.''.
(b) Clerical Amendment.--The table of sections for chapter
153 of title 18, United States Code, is amended by adding at
the end the following:
``2257. Adequacy of State remedies.''.
Mr. KYL. Mr. President, the reason I asked the key provision of that
amendment be read is to illustrate its simplicity. It is very simple
and yet I think very important and necessary as an improvement to the
bill which is before us now.
I want to begin by complimenting the manager of the bill, the Senator
from Utah, for not only getting the bill to this point but for
insisting that we have habeas corpus reform in this important piece of
legislation.
My amendment will improve the habeas corpus reforms by, as was just
read, ensuring that a case in the State courts can be reviewed in the
State court system, but that as long as the State court system provides
adequate and effective remedies, that person does not have the
authority to go over to the Federal courts and relitigate all of the
same claims in the Federal courts.
Of course, it should go without saying that there is always a review
in the U.S. Supreme Court from any decision of the highest court of a
State. So there is ultimately still the potential for Federal review of
a State court decision.
I would like to illustrate exactly what we are talking about here
with a hypothetical and a real case. The Senator from Oklahoma is here.
One of the reasons the Senator from Oklahoma is so interested in this
provision is because of the recent tragedy in his State. Let us assume
two cases in the State of Oklahoma. In the first case, there is a
robbery and in the course of that robbery someone is shot. The person
is tried in the State courts, there is an appeal to the appeals court
and on up to the supreme court of the State--eventually a prosecution,
a conviction and a sentencing.
Thereafter that State court prisoner may file writs of habeas corpus
in the Oklahoma State court system as often as that person can find
grounds for doing so. Those writs can be determined legally in the
appeals and supreme court of the State of Oklahoma, and eventually of
course, after the supreme court of Oklahoma has ruled, they can be
considered by the U.S. Supreme Court. So that State court prisoner has
virtually an unlimited right to take these writs of habeas corpus up
and down the State court system.
In today's law he also has the right to go to the Federal court
system and essentially relitigate the exact issues. ``I have some newly
discovered evidence that will prove I was innocent of the crime. I have
gone up and down the State court system, now I would like to try my
luck in the Federal courts.'' Under existing law, that person can do
it.
What the bill says is we are going to put a couple of roadblocks in
the way. It should not be quite so easy for you to you do that. You at
least ought to have some time limits within which to file these habeas
corpus writs in Federal court, and the Federal courts at least ought to
give great weight to the previous decisions of the supreme court. Those
are both sound provisions but they obviously do not preclude the State
court prisoner from going to Federal court.
Let us take, on the other hand, the perpetrators of the heinous
tragedy in Oklahoma City a few weeks ago. They will probably--he or
they--will probably be tried in the Federal district court in Oklahoma.
If convicted, there could be an appeal to the Tenth Circuit Court of
Appeals and eventually to the U.S. Supreme Court. But those people,
having been convicted, will have their writs of habeas corpus reviewed
only in the Federal district court and circuit courts of the United
States of America. They do not have the right to go over to the
Oklahoma State court system and relitigate those same claims. So,
whereas the State court prisoner can use both the State system and the
Federal system, in duplicate appeals, a Federal prisoner may only use
the Federal system.
The constitutionality is obviously clear. Either the State courts or
the Federal courts are competent to adjudicate constitutional claims.
That is established. There is no legal question about that whatsoever.
But the Federal court prisoner has one set of options. The State court
prisoner, under the stats quo, has two sets of options. And we are
limiting them a little bit by the bill before us.
My amendment says: No, a Federal court prisoner adjudicates his
claims in Federal court. A State court prisoner adjudicates his claims
in the State court. The only time the State court prisoner can go to a
Federal court is from an ultimate appeal to the U.S. Supreme Court.
This will end the duplicative appeals that we have all been
complaining about. This and only this amendment will end those
duplicative appeals. Because it will still be quite possible for State
court prisoners under the bill before us to adjudicate their claims in
State court and then go to the Federal court so long as they do it in a
timely manner. So long as they meet the time limits we impose in this
bill, they can still go to the Federal court and relitigate exactly the
same claims.
What ordinarily happens is that the Federal district courts or
circuit courts of appeals say, ``Wait a minute, the State court has
already decided that. Your appeal is summarily denied.'' But that takes
time.
I just spoke to the presiding judge of the Arizona court of appeals
and he said we summarily dismissed many of these. But he said every one
of them has to be considered. And that is the point. From a very small
number to a very large number, the district courts and the circuit
courts of appeals are having to handle these writs that have already
been decided by the State court and, as the Federal courts have said
over and over again, the State courts are perfectly able to resolve
these issues.
Mr. President, this is not just an idea that I have come up with.
This is what is happening in the District of Columbia today, and has
been for the last 25 years, because 25 years ago the Congress passed a
law and established that in the District of Columbia courts--by the
way, the District of Columbia has in effect a State court system which
parallels the U.S. District Court and the Circuit Court of Appeals for
the District of Columbia.
So it is similar to States in that it has its own system of courts.
We in the Congress 25 years ago said that prisoners in the District of
Columbia can only use that quasi-State court system here in the
District of Columbia. That was tested in the U.S. Supreme Court and the
constitutionality was upheld in the case of Swain versus Pressley in
1977. And there have also been other opinions with respect to the
constitutionality of what was done. One judge, as a matter of fact,
even wrote that because of this experiment in the District of Columbia,
which has worked very well for the last 25 years, that the Congress
ought to consider the same kind of limitation of remedies in the State
courts, exactly what we are proposing here today with my amendment.
So at the invitation of Judge McGowan, we are proposing an amendment
which says in the State courts, [[Page S7830]] you do like the District
of Columbia. You exhaust your remedies in the State court. You can go
to the U.S. Supreme Court, but not jump over to the Federal District
Court and the Circuit Court of Appeals to litigate the same claims.
Judge Robert Bork has written a letter in support of my amendment. He
writes, in part:
Your proposed amendment to the antiterrorism bill to stop
the abuse of Federal collateral remedies is an excellent and
much-needed reform. There is no doubt about the
constitutionality of the provision you propose, nor is there
any doubt about the need for your amendment. Your amendment
is a sorely needed reform to a situation that is now out of
hand.
Mr. President, the constitutionality of what I propose is beyond
question. It has been tried for 25 years here in the District of
Columbia. It is found to be very workable. Everybody agrees that we
need to limit duplicative appeals.
Therefore, it seems to me that, if we are to really make the
provision of habeas corpus reform in this bill work, we do not just
play with it at the edges by proposing some time limits and providing
for deference to State court proceedings. We go right to the heart of
matter and say if you have a complete and adequate remedy in the State
courts, then that is what you will get except, of course, for your
ultimate appeal to the U.S. Supreme Court. You cannot jump over to the
Federal system of courts to readjudicate those very same claims.
The Senator from Oklahoma is on his feet. I would like to yield time
to the Senator from Oklahoma to further discuss this particular
amendment.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER (Mr. Thomas). The Senator from Oklahoma is
recognized.
Mr. NICKLES. Mr. President, I would like to compliment my friend and
colleague from Arizona for his leadership. He brought this amendment to
my attention. I told him I was not very familiar with it, but I told
him I would do a little more homework. I have. I have become more
convinced that he is on the right track.
I talked to the Federal judge in the Western District of the State of
Oklahoma, and I asked him about the number of appeals; prisoner
petitions. We find out in the last 10 years they more than tripled, and
have actually consumed about 25 percent of the work load in the western
district. The court has before them hundreds of prisoner petitions and
appeals that have to be reviewed.
The Senator from Arizona makes an excellent point, and says the
States have ajudicated these cases thoroughly. They have gone all the
way through the State courts, through the appeals process, State
supreme courts, and then all the way even--with capital punishment
cases--to the Supreme Court.
Yet, they continue to press, and want to run through the Federal
court system as well where the Federal judges do not have time to go
through the entire case, where there is almost a presumption that, if
they have to do that, maybe the Federal Government knows better, which
is not always correct. The Federal judges I have talked to said we are
in serious need of habeas corpus reform.
I compliment my friend and colleague from Arizona for, I believe,
truly making more significant reform. I think Senator Hatch's bill has
some good reform. I compliment him for it. The reforms in S. 735 will
help expedite the procedures. There are time limits under the proposal
now before us from the Senator from Utah. Senator Kyl's amendment would
go much, much further. It would eliminate these hundreds of, in almost
all cases--at least, in my State, frivolous petitions placed before the
Federal courts, frivolous but yet they still take time. At 25 percent
of the caseload, you are talking about a very significant amount of
time and energy and dollars that now are being expended by frivolous
appeals because many prisoners become quite good at filing petitions,
and there is no limit whatsoever on the number of petitions that they
can file.
So I compliment my colleague from Arizona for his leadership and for
coming up with very significant reform. I appreciate the fact that we
have outstanding scholars such as Judge Bork and others who have
endorsed the reforms in this amendment.
I urge my colleagues to adopt the amendment.
Mr. KYL. Mr. President, I would like to yield 7 minutes of additional
time to the junior Senator from Oklahoma, Senator Inhofe.
Mr. INHOFE addressed the Chair.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Thank you, Mr. President.
First of all, let me thank the Senator from Arizona for bringing this
up. I think it is significant for all of us to realize that had it not
been for the bombing in Oklahoma City, we would not be here today. We
would not even be having a discussion. There would not be a debate on
habeas reform. There would not be a counterterrorism bill.
Certainly, this contentious item of habeas that we have been trying
to bring up, at least for the last 9 years that I know of, would not
even be discussed in an open debate as it is today. So it is very
significant for people to understand this is all precipitated by the
tragedy that took place in April of this year in Oklahoma City.
On Monday of this week, we had a group of people that came up from
Oklahoma. Among others, they were Diane Leonard, whose husband, Don, a
Secret Service agent, was killed in the bombing; we had Glenn Seidl,
who lost his wife, Kathy; Kay Ice, who lost her brother, Paul, a
Customs Agent; Mike Reyes, who lost his father and was injured himself;
and Danny McKinney, Linda's husband. It goes on and on. There is not
time to name all of them. But they were here for one reason. That
reason is that they wanted to be sure that we had the strongest
possible habeas reform in this bill.
So when you stop and realize what has happened in Oklahoma, and what
happened in Oklahoma as I mentioned once before on this floor, but I
think it is worth bringing up again at this point because it gives you
an insight into what the families of the victims in Oklahoma are
thinking about because it is something that is contemporary right now--
a guy named Roger Dale Stafford is scheduled to be executed on July 1.
I do not know whether he will be. It is hard to say. In the spring of
1978, someone stopped to help him with his car. He was broken down in
Oklahoma. He murdered in cold blood a Sergeant Lorenz, and the
sergeant's wife and small son, and drove 60 miles to Oklahoma City, and
committed a great crime known as ``The Sirloin Stockade Crime,'' where
he rounded up six people and took them into the refrigerator, tied them
up, and executed the six of them. He has been found guilty on all nine
counts and has nine death sentences. That was 17 years ago.
I might suggest that Roger Dale Stafford today is 100 pounds heavier
than he was 17 years ago. So I am sure he is eating well. He has been
in the cell, probably living under better conditions than he was
before, for the past 17 years.
I cannot help but think when anyone is considering a crime of the
magnitude of that which we had in Oklahoma City, Mr. President, that
they spend a lot of time thinking, ``What is the downside? What is the
worst thing that can happen to me if I get caught and convicted? It is
going to be that I will be executed. Wait a minute. The average time
between conviction and execution in America is 9\1/2\ years. So I will
be there for 10 or 15 or 20 years watching color TV in an air-
conditioned cell.''
That loses its deterrent value for those of us who are narrow enough
in our thinking to believe that punishment is a deterrent to crime.
So without this, we have no way of delivering the message to other
individuals who might be considering such a heinous crime as that which
was committed in Oklahoma City.
So let me just say that I am here today on behalf of multitudes of
people in the State of Oklahoma who were killed in the brutal bombing,
the mass murder that took place last April in Oklahoma City.
The message they told us last Monday to deliver on the floor of this
Senate, the loud and clear message, was yes, if this does not pass, we
still want to support the bill as it is right now and the habeas
element that is in the bill. That is fine. But the message was let us
get the strongest possible habeas [[Page S7831]] reform that we can
have. That happens to be the John Kyl amendment.
So I am not here speaking on behalf of one U.S. Senator from the
State of Oklahoma. I am speaking on behalf of the families of those
individuals who were killed in that very brutal act in April of this
year.
Thank you, Mr. President.
Mr. KYL. Mr. President, does the Senator reserve the remainder of his
time?
Mr. INHOFE. I yield.
Mr. KYL. Both Senators from Oklahoma have conducted themselves in an
exemplary manner following the tragedy in their State in a way both to
help the people of their State but also to try to do everything they
could to assist law enforcement officials to bring to justice the
responsible parties and to see to it that there are changes in the law
that perhaps can help prevent those kinds of things from happening in
the future and, in the cases where they cannot be prevented, that the
people are brought to justice.
I very much appreciate the support of both of the Senators from
Oklahoma.
Mr. President, I would like to reserve the remainder of my time at
this point should anyone from the minority wish to speak.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Let me say while our colleague from Oklahoma is in the
Chamber that I, too, admire the way in which he and his senior
colleague have conducted themselves in the wake of such a horrible
tragedy. I do not in any way question that the victims' survivors,
families of the victims in Oklahoma City, want what he states, and that
is a change in the way habeas corpus works. They do not want any more
Staffords. They cannot understand, nor can I, why Stafford is in jail
for 17 years after having filed apparently successful petitions to
delay his execution, and they want action.
But I would say that we would be on habeas corpus whether or not that
god-awful tragedy in Oklahoma had occurred. The Republican crime bill
has the habeas corpus petition in it. We are scheduled to take up the
Republican crime bill. We were scheduled to take up the Republican
crime bill before we left for our Easter recess. Then we were scheduled
to take it up before we left for Memorial Day. Now we are scheduled to
take it up before the Fourth of July recess.
In that Republican crime bill is the reform of habeas corpus. In the
crime bill that I offered 2 years ago, 18 months ago, there was a
reform of habeas corpus. So I just want to make it clear that the
Senate's attention is not focused on habeas corpus at this moment
because of what happened in Oklahoma and the counterterrorism bill. It
is a convenient--and I mean that in a literal sense; I do not mean that
in a disparaging way--it is a convenient vehicle to move up the debate
on this issue, but the debate was necessary and inevitable.
Let me point out there are three sort of teams in this debate. One
team says keep habeas corpus the way it is; we do not want any changes
in habeas corpus. I got a bite out of that apple over the last couple
years because every time I would offer amendments on habeas corpus I
would read in the editorial page of the New York Times about how
Senator Biden is emasculating habeas corpus, and what a terrible thing
he is doing, and the compromises Senator Biden is working out are--and
it went on and on. Every liberal newspaper in America pointed out that
wanting to change habeas corpus from the way it is to make sure that
the Staffords of the world are executed----
Mr. INHOFE. Just for a moment, will the Senator yield?
Mr. BIDEN. I would be happy to yield.
Mr. INHOFE. Let me clarify. I used the words ``at this level.'' I do
not believe we would be having the debate at this level if it had not
been for the fact it did not happen.
I might also observe that the same attorney, who is a very capable
and competent attorney in Oklahoma, Steven Jones, the one who so
successfully got the delays in the Stafford case, is the same attorney
that is handling Timothy McVeigh's case here, too.
Mr. BIDEN. I thank the Senator.
But there are basically three points of view on this floor in a broad
sense. One is, do we maintain the status quo on habeas corpus? That is
made up of half a dozen to a dozen Members on my side and one or two
Members on the Republican side. And they do not want to see any change
in habeas.
There is a second school of thought in a broad sense represented by
the distinguished Senator from Arizona, who is a capable and competent
lawyer in his own right and knows this area well, as he demonstrated by
his presentation. And that is to say, in effect, as I read what he says
but what others have said as well, that State courts are fully
competent to determine whether or not somebody's constitutional rights
have been violated. And that is a respected, understood, and clearly
articulated school of thought that has existed for some time and has
been in a very articulate manner stated here today.
There is a third school on this floor that says status quo is bad. We
do not want habeas corpus to continue as it statutorily has and has
been interpreted by the courts over the last couple decades. We want it
changed.
Now, we differ. There are limits to that third group, and they range
somewhere between Senator Specter and probably me. And Senator Specter
and I have been for years debating this issue, agreeing and
disagreeing, but we are into that school that says, wait a minute, do
not take the Federal courts totally out of this or, in effect, take
them totally out of it but drastically curtail the time within which
someone is able to file a habeas petition and how many times they are
able to file one and what constitutes a successive petition.
Now, I am certain that the Senator from Oklahoma was right when he
ticked off the names of the families of the victims and said they want
action. I would respectfully suggest that it is unlikely that they know
the difference between a successive petition based upon probable
innocence versus clear and convincing evidence. Most lawyers on this
floor do not know the difference. Most lawyers who practice law do not
know the difference; 85 percent of the highest paid lawyers in America,
if you brought them in and sat them down in these chairs and asked them
to define what a successive petition is, could not do it, could not do
it. I am talking about the thousand-dollar-an-hour guys. They could not
do it.
Now, I do not mean that to malign the legal profession. They do not
handle these cases. Death penalty cases, habeas cases are complicated.
Just like I could not, if I were back in the practice of law, explain
to you a complicated antitrust provision. I did not practice antitrust
law.
So with all due respect, what I am proposing and will propose --and
my opposition to the Kyl amendment is just as likely to be acceptable
to those folks in Oklahoma as anyone else's because the effect of what
I wish to see happen--and I think a majority in here--is to make sure
that we are no longer in a situation where this fellow Stafford could
be gaining weight in an air-conditioned cell after having filed 17
petitions.
If we adopt the amendment that I am going to offer after this
amendment, Stafford would be dead. No more Staffords. There is no legal
way in which anyone could hang around, after having been convicted of a
capital offense, for 17 years, let alone 7 years, because there are
strict time limits and strict circumstances under which a second
petition could be filed.
Now, one of the problems here is that we confuse all crimes with
apples and oranges. We hear about delay all the time, and it is true,
with all due respect, even the Kyl amendment will not fundamentally
change the delay. If you take a look at where the delay occurs--and
just pick this one case that we talk about--and I will get the second
graph, if I can, about the length of delay in State courts versus
Federal--the case often cited is this Guerra case, to find out how long
this fellow, after having been convicted, languished in, at the expense
of the taxpayers, a prison avoiding the inevitable.
Of the delays that took place, only--still, there are delays--24
percent of them were because of what the Federal courts did. And 76
percent, or 9 years 2 months' worth of delays had nothing to do with
the Federal courts. They were all in the State court in the State of
Texas. [[Page S7832]]
Leave that graph up for another moment, please. I want to make sure
everybody understands. The State of Texas, under State court and State
law, provided for 9 years 2 months' worth of delay.
The Federal courts, having Federal habeas available, did, in fact,
add to the delay, 2 years and 10 months. But let us eliminate, as my
friend from Arizona wishes to do, in effect, the ability of the Federal
courts to get into the game. There still would have been a 9-year-2-
month delay in the execution of a man who was convicted and should have
been put to death. The point is, the end result of all this was he
ended up with a granting of habeas in the end. The point is, it was 9
years 2 months in the State court.
In the State of California, we heard a lot of talk about how Federal
habeas corpus causes all these delays. The delays in execution of the
death penalty, much of the responsibility is in the State courts. The
California experience: California's Supreme Court has on its docket
four capital cases that have been fully briefed for over 7 years, but
the State court has not even heard the argument yet. It has nothing to
do with the Federal courts. You have four cases, as of a month ago,
when this chart was made up for a hearing. Maybe something has happened
in the last month, but as of a month ago, there were four capital cases
in the California Supreme Court where the petitioners seeking redress
filed their briefs 7 years ago, and the State court has not even acted
yet. Translated, that means 7 years living off the taxpayers in an air-
conditioned cell because the California State Supreme Court has not
even looked at the briefs or, if they looked at them, have not told
anybody they looked at them.
The California Supreme Court has taken more than 8 years to decide 24
of the cases in which it affirmed the death penalty.
One State habeas petition has been pending for 4\1/2\ years and
another has been pending for 6 years. This is not even getting to the
Federal court.
The reason I cite this is the distinguished former Member of Congress
and attorney general of the State of California, Mr. Lungren, came
before our committee and said, ``The Federal courts should work like
the State courts work. My State of California really knows what it is
doing.'' Look at what the State of California knows.
I understand the anger. I feel angry and aggrieved as an American
citizen that convicted killers are in California sitting in the jails
for 7 and 8 years because the court has not even gotten around to
listening to what they have to say. You cannot put them to death,
because they filed a petition but they have not gotten around to
looking at the petition.
What are we doing, though, when we decide that we are angry about
that? We are saying the answer is get the Federal Government out of
this, the Federal courts out of this. That does not solve the problem,
but it creates another problem. The problem it creates when there is no
Federal habeas corpus is bad decisions. Bad decisions made by State
courts allow people who deserve another trial to not get it. Their
constitutional rights are violated. A significant number of the habeas
corpus petitions that are filed are granted.
I admit I cannot change the State of California. I have no authority
as a Federal official to tell the State of California how they should
look at their petitions. But I can do one thing. When it gets to the
bottom here and they finally act, under the proposal I want, they get
one chance to get into Federal court, to say the State court judges did
not know what they were doing on the Constitution.
Keep in mind now, what I am proposing means when all this is done,
within 6 months, the person in jail has to file a petition in Federal
court. If they do not, they are out of luck, and they can only file a
second petition under the same ground rules that my friends from the
Republican Party, that Senator Specter and Senator Hatch's bill says,
where we differ, which I will debate later, where we differ, Senators
Specter, Hatch and Biden, is on what they are allowed to look at once
they get that petition in front of them. I will speak to that later.
But look, I really think, to quote my old friend Sid Balick again,
``You gotta keep your eye on the ball here.'' The vast majority of us
in this body want to and have been trying for years to change the old
system to limit the time in which a petition can be filed and to limit
the number of petitions that can be filed. So essentially you get one
bite out of the apple.
What my friend from Arizona would do would deny that one bite. I ask
you, what damage is done to the Nation allowing a person who, after the
fact, learns that perjured testimony was used against him; after the
fact, learns that information was made available to the prosecution
which went to his innocence that was never made known to him; after the
fact, after the fact, after the trial, after the appeals?
If you have to file it within 6 months, I do not know how much
additional weight old Stafford would have gained in 6 months, but it
would not have been 100 pounds. What is the alternative? The
alternative, for example, in this Guerra case was when they finally got
down to it, they granted his appeal. They said, ``Wait a minute, you
did not get it right at the trial.''
But I, with the greatest amount of respect, suggest that although I
understand the motivation, it will not speed up the process. All it
will do is enhance the likelihood that a person whose constitutional
rights have been denied--and those constitutional rights usually relate
to whether they are innocent or guilty--whether they have had a chance
to make their case.
Senator Kyl's amendment would bar a prisoner even from being able to
file a habeas petition if the State court system has in place what are
determined to be adequate and effective procedures to test the legality
of the prisoner's detention.
This amendment makes clear that the State court need not have gotten
the result right in a particular case and, in fact, it need not even
have applied its system fairly in a particular case. All it says is
they have to have had a process, and if they had a process, even though
it may not have been applied fairly in a particular case, even though
it may not have gotten the result right on a constitutional basis, the
Federal court cannot look at it.
Everyone agrees that there is a need to end the delays in the system.
It just does not work right now. But I also think everyone agrees that
there should be a fair process and one that does not execute innocent
people.
We know most prosecutors and law enforcement officers are honorable.
Most cases proceed fairly, and we can have confidence in the result.
Under my approach, after the first petition, most of that will be made
clear. They will be rejected and they will be put to death. And I
support the death penalty. The Biden crime bill is the only reason why,
if McVeigh is convicted in Oklahoma, he would be put to death. I wrote
the law. If he is tried in Federal court without that law having been
passed, he could not be put to death. I support the death penalty. But
I do not support a reasonable ability for a person, if they have a
strong case, to suggest they did not get a fair trial, to be able to
have one bite out of the apple to determine in Federal court whether
that was true.
We all know that occasionally prosecutors or cops act in bad faith,
as Senators do, as doctors do, as lawyers do, as housewives do. Every
one of our professions, every one of them, has some bad apples. So,
occasionally, prosecutors or cops act in bad faith and there are cases
which have demonstrated that. As we all know, our judicial system will
make honest mistakes and has done so.
The recent case of Kirk Bloodworth is one example. Bloodworth was
convicted and sentenced to death for the rape and murder of a young
girl. After a new trial, he was again convicted and sentenced to life
imprisonment. Subsequent DNA testing confirmed his innocence.
Bloodworth lost 9 years of his life because of the error in our legal
system. Habeas corpus has existed to correct just such errors, and to
ensure that there will never be another Leo Frank, another innocent
person who has been executed.
You do not have to have 17-year delays to ensure that. You do not
have to have any delay to ensure that. But what you have to have is the
ability of a Federal court, on one occasion, to look at the facts in
the petition and [[Page S7833]] make a judgment as to whether or not a
new trial is warranted.
So I respectfully suggest that the debate between the Senator from
Arizona and me is not about maintaining the status quo; it is about how
we change the status quo. I respect the Senator's intelligence and
motivation greatly. But I also respectfully suggest that his approach,
A, does not solve the real problem--State court delay--and, B, takes
away the one last shot, as a practical matter, that one has to get
before a Federal court.
Now, I will acknowledge--and I suspect he would agree--that 75 years
ago Federal review was probably needed much more than it is today,
because the competence of State court justices was, in some cases, de
minimis. And the prejudice that existed in some States--my own
included--was real and palpable, making it very difficult for some
people to get a fair trial and get their constitutional rights
guaranteed. I acknowledge that. That is why the Leo Frank case
generated a change in statutory habeas corpus. He was a Jew and he was
put to death in large part because he was a Jew. Facts were overlooked,
and a decade later it became clear from witnesses that he did not
commit the crime.
Most States do not operate that way anymore. I will pick a State so
that I am not being parochial and bragging about my State court system,
and I will not brag about the Arizona State court system, which is very
good. I know several of their State supreme court justices and State
court judges. They are first rate. I will pick a State. I would rank
the New York State court of appeals, their highest court, over the last
50 years, up against any Federal district court or Federal circuit
court of appeals in the Nation. But I cannot say that for probably 20
States that I will not name, because it would be a violation of Senate
rules, and because I would be maligning the justices of other States.
But I will say, as Barry Goldwater once said, ``In your heart, you know
I am right.'' In your heart, you know there are certain States you
would just as soon not be tried in for a capital offense as other
States.
So what this does--although I acknowledge that State courts get it
right the vast majority of the times, I will put this in the negative--
what damage is done by the proposal of time limits built into the
proposal I am making and that are made, I might add, in the underlying
bill, that say you have to file a petition within a certain amount of
time and there is a limited circumstance under which you can file a
second petition.
So for those reasons, and others which I will not take the time to
speak to, I am going to oppose the amendment of my distinguished friend
from Arizona.
Mr. President, Is any time left in opposition?
The PRESIDING OFFICER. The opposition has 12 minutes 42 seconds.
Mr. BIDEN. I reserve the remainder of my time.
The PRESIDING OFFICER. If I was not clear, the Senator from Arizona
has 12 minutes. The Senator from Delaware has 4 minutes.
Mr. BIDEN. I reserve my 4 minutes.
Mr. KYL. Mr. President, I will yield myself 6 minutes of my remaining
time. I would like to respond to the comments of the Senator from
Delaware. They were well put and thoughtful, and I think they
contribute to the debate. I am going to consider the arguments that he
made, with the primary arguments in reverse order, if I might.
The last argument he made essentially was what happens when, after
the fact, the defendant finds something out that might enable him to
win his freedom? That, of course, is the rationale for the writ of
habeas corpus. Of course, the answer is, if you are a Federal court
prisoner, you have the opportunity to file a writ of habeas corpus in
the Federal courts. If you are a State court prisoner, you have the
right to file a habeas corpus petition in the State courts. So that is
your remedy for something that happens after the fact.
The Senator from Delaware said it must be a fair process, and indeed
it must be. Under my amendment, one of the things that can be
contested, and could be contested in Federal court, is that the remedy
of the State is not adequate or fair. Finally, with regard to this last
point, the Senator from Delaware said he will be proposing an amendment
that at least gives the prisoner in the State court system one shot in
the Federal courts and primarily base that argument on the notion that
while great strides have been made in State courts' competence over the
years, there may still be some situations where the State court would
not be as competent as the Federal court.
I would like to respond to this in a couple of ways, Mr. President.
First of all, we do have one shot in the Federal system under my
amendment. It is directly to the U.S. Supreme Court. That right exists
today, and it could not be taken away in our amendment, and we do not
do that, of course. So if a State court prisoner believes that, despite
all of the hearings he has gotten in the State court system, he still
has not gotten a fair shake, and that he has really two things that he
can claim--first, the State court system is not fair, and secondly, he
can go to the U.S. Supreme Court and make his final point there.
Let me read something that Justice Powell wrote not too long ago that
I think goes to this point:
He said this nearly 20 years ago:
We are unwilling to assume that there now exists a general
lack of appropriate sensitivity to constitutional rights in
the trial and appellate courts of the several States. State
courts, like Federal courts, have a constitutional obligation
to safeguard personal liberties and to uphold Federal laws.
That was in the case of Stone versus Powell, in 1976.
Later, speaking to the American Bar Association, Justice Powell said:
Another cause of overload in the Federal court system is
conferring Federal habeas corpus jurisdiction to review State
court criminal convictions. Repetitive recourse is
commonplace. I know of no other system of justice structured
in a way that assures no end to the litigation of a criminal
conviction. Our practice in this respect is viewed with
disbelief by lawyers and judges in other countries.
So, Mr. President, I think that particular issue is disposed of by,
among other things, the words of Justice Powell.
A second point the Senator from Delaware said is that most of the
delay is in State courts. He is correct, although the chart he has
there represents one case. He has about 25 or 24 percent of the delay
in the Federal courts, and the rest in the State court. Actually, there
is a better figure than that, and the figure is about 40 percent in the
Federal courts, 60 percent in the trial courts.
This is from the Powell committee report, and it talked about overdue
process. The Powell committee report on page 27 notes ``Federal habeas
corpus made up 40 percent of the total delay from sentence to
execution, in a sample of 50 cases.'' That is 50 cases as opposed to
one case.
The point of the matter is the Senator from Delaware is correct in
noting that most of the delay would be State courts. I submit, however,
that that is due to several factors. I am not sure the statistics fail
to account for the fact that most of the cases are in State court. As a
matter of fact, there are not that many in the Federal court.
Say it is between 25 and 40 percent. At least under my amendment we
are dealing with 40 percent of the problem. That is not insignificant.
Or, the least, taking the number of the Senator from Delaware, 25
percent of the problem.
Whereas the Senator from Delaware would simply make it more difficult
to get into Federal court if you are a State court prisoner, we say you
cannot. As Federal legislators, what we can do something about, the
Federal court, we do something. We say you cannot go there. It is up to
the States to deal with the rest of the problem which is before them.
Finally, Mr. President, the Senator from Delaware made a point with
respect to Senator Inhofe's presentation, and it was a valid point. But
I think it makes a point too far, or one point too much.
The Senator from Delaware said it is doubtful that Senator Inhofe's
constituents understand the difference between the Hatch and Kyl
amendment, and mentions a lot of lawyers could not identify the
difference. He is correct. I do not believe that makes the case.
It is true we have to be careful about what we do here. It is also
true that [[Page S7834]] while the common citizen may not understand
the technicalities, the legalities, even the word habeas corpus coming
from Latin, the common citizen does understand when something is
broken. And the Senator from Delaware made an eloquent case for the
proposition that something is drastically broken when people can stay
on death row as long as they do.
The Senator from Oklahoma made the same point, 16 or 17 years, with
the average being over 9 years. The system is drastically broken. It
does not take a lawyer to figure that out.
Mr. President, let me conclude at this point that the ordinary man
may not understand all of the technicalities we are talking about, but
he knows something is broken here. The fix in my case is quite simple.
Federal prisoners go to Federal court, State prisoners go to State
court with an ultimate appeal to the U.S. Supreme Court, but State
prisoners do not get the extra bites of the apple in the Federal court.
It is a simple solution.
The solution in the bill and the solution of the Senator from
Delaware is much more complex. We will impose some limitations on how
you get into the Federal court. That does not stop you from getting in
the Federal court. So if you want to solve between 25 and 40 percent of
the problem, voting for the Kyl amendment will definitely do that.
It has been held as constitutional. It is supported by Judge Bork and
by many others. I submit it would be a good addition to this bill. I am
happy to yield to the Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask the distinguished Senator from
Delaware to yield.
Mr. HATCH. Mr. President, I believe the Senator from Delaware needs
his remaining 4 minutes. How much time does the Senator need?
Mr. SPECTER. I shall be brief, holding to 5 minutes.
Mr. HATCH. I ask unanimous consent that the Senator be granted 5
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I am opposed to the amendment by the
distinguished Senator from Arizona. At the outset, I acknowledge his
experience in the field. But it is my view that Federal review of State
criminal convictions, especially in capital cases, is very, very
important in order to guarantee appropriate constitutional safeguards.
I believe the death penalty is an effective deterrent against crimes
of violence. I spoke earlier about my own experience as a district
attorney of Philadelphia, and before that as an assistant district
attorney where I tried murder cases. My thought is that it discourages
many professional robbers and burglars from carrying weapons because of
concern that a killing might result and they would face the possibility
of first-degree murder and the death penalty.
I believe that it is very, very important, Mr. President, if we are
to retain the death penalty, we have to use it very, very carefully.
There are some 37 States which favor the death penalty. Thirteen
jurisdictions in the United States oppose it. It took many years to
bring back the death penalty on the Federal level, having achieved that
only last year.
The news from South Africa is they have abolished the death penalty.
The death penalty is not in use in many jurisdictions, in many nations.
I think it is very, very important to retain the death penalty as an
effective weapon. Therefore we have to use it very, very carefully.
I have objections to the pending amendment both on constitutional
grounds and on public policy grounds. I am well away of the contention
that there is constitutional support to it. Frankly, I doubt that the
constitutional support would stand up.
When we are dealing with the question of jurisdiction of the Federal
courts to entertain questions on Federal issues, on constitutional
issues, I believe it is necessary that the Federal courts retain that
jurisdiction as a constitutional matter.
I am aware of ex parte McCardle and aware of the distinctions on
habeas corpus where there is supposedly an adequate State habeas corpus
remedy. When someone comes into the Federal courts on habeas corpus,
especially in a capital case, and makes an assertion of denial of
actual rights on privilege against self-incrimination or coerced
confession or ineffective counsel or absence of counsel or search and
seizure issues, I believe it is necessary as a constitutional matter
that the Federal courts retain that kind of jurisdiction.
In our Judiciary Committee hearings, this is a question which I
frequently ask the nominees as to whether they believe the Congress has
the authority to take away jurisdiction on constitutional issues from
the Federal courts. It is too lengthy a subject to discuss at any
length today.
Beyond the constitutional issue is a matter of public policy. I think
it is very important to have the kind of detached, objective review
that the Federal courts give.
In many of our States we have elected judges. I think that is, in
some circumstances, perhaps in many circumstances, an impediment to the
kind of review we have by judges who have life tenure.
I recall reading for the first time in law school the case of Brown
versus Mississippi, 1936, a decision by the Supreme Court of the United
States saying that the due process clause which limited State action
warranted the Supreme Court of the United States to reverse a
conviction in a State court in a capital case. Without reciting the
case of Brown versus Mississippi and the horrendous facts there, it was
not until 1936 that the Supreme Court of this country intervened in a
State criminal matter to say that it violated the U.S. Constitution.
The Federal courts have been providing the safeguards on
constitutional rights significantly through Federal habeas corpus. I
believe that has to be maintained. In urging the adoption of the
Specter-Hatch amendment, our amendment really goes to the issue of
curtailing the time.
Some might say that it is a restriction on defendant's rights. I
think, actually, it is not, for reasons I stated earlier, on the
challenge to cruel and barbarous treatment, keeping someone on death
row for a protracted period of time.
The international court I referred to earlier this morning, refused
an extradition from England to Virginia, because Virginia kept
prisoners on death row for 6 to 8 years, which was deemed a violation
of cruel and barbarous treatment.
I think, Mr. President, on constitutional grounds and on public
policy grounds we ought not to restrict the jurisdictions of the
Federal courts.
Accordingly, I urge my colleagues to oppose this amendment. I yield
the floor.
Mr. KYL. Mr. President I appreciate the remarks of the Senator from
Pennsylvania. He makes some good points that I would like to respond
to, but at this point I would like to ask unanimous consent that the
Senator from Mississippi be allotted the same amount of time that the
Senator from Pennsylvania spoke on, so that I may utilize the remaining
amount of my time to close the debate.
The PRESIDING OFFICER (Mr. Inhofe) Without objection, it is so
ordered.
Mr. LOTT. Mr. President, I thank the distinguished Senator from
Arizona for letting me have this time and for his effort on this
amendment. I certainly am pleased to support it because I think it
really does what needs to be done in this area of habeas corpus,
because it provides that when a State--State--provides adequate and
effective remedies for considering prisoners' claims, there is simply
no basis for allowing additional rounds of litigation on the same
claims in the lower Federal courts.
I am not a constitutional expert. But let me just read what Judge
Robert Bork has said about this particular amendment. He says:
[This] . . . amendment to the anti-terrorism bill to stop
the abuse of federal collateral remedies is an excellent and
much-needed reform. . . . There is no doubt about the
constitutionality of the provision you propose. . . . Nor is
there any doubt about the need for [the] amendment. . . .
[The] amendment is a sorely needed reform to a situation that
is now out of hand.
Again, I am not a constitutional expert and I know when we have bills
like this the lawyers descend on the floor and start arguing. There are
very good merits on both sides. But let me just say what I hear from
the American people when I go to my State and other
[[Page S7835]] States. They think there is horrible abuse in this area.
They think these endless appeals are totally out of control and that it
should be cut back and cut back significantly.
I want to emphasize, this does still allow for the Supreme Court to
be involved. But how many rounds are we going to have? The American
people understand how this system is being abused. That is what is so
applicable in this case. If we have a process whereby the people who
were involved in the bombing in Oklahoma City are found, apprehended,
indicted, convicted and sentenced, if you will, perhaps to death, and
then we go through a long, protracted process of appeals through the
State courts, appeals through the Federal courts, the American people
are going to be even more horrified at our judicial system in America.
They are looking now at the Simpson trial and wondering what have we
wrought? This is one small step in the right direction.
Under current law, habeas corpus claims that are rejected after
thorough consideration in the State courts are readjudicated in the
lower Federal courts. It is duplicative review in the Federal courts
and it is needless and time consuming. The habeas corpus provision in
S. 735 reduces this redundancy, but it does not eliminate it.
I commend the Senator from Utah, Senator Hatch, for the good work he
has been doing in this area for years. Finally he has brought this
issue almost to a climax. But I think now Senator Kyl will go one step
further and that will really help in dealing with this problem of
abuse, delay, and repetitive litigation in the lower courts, the State
courts, and the Federal courts.
Under current law, criminal defendants in the State present their
claims at their trials, in State court appeals, in State collateral
proceedings, and in applications for review by State supreme courts and
then by the U.S. Supreme Court. After exhausting these State remedies,
prisoners can then go back and initiate additional rounds of litigation
through the habeas corpus proceedings in the lower Federal courts,
presenting the same claims that have already been raised and decided in
State court review. As a result of this redundant review, the criminal
justice system in the United States really now is plagued with problems
of delay and abuse.
We talked about, I guess it was, cruel and inhuman punishment in the
past. The Supreme Court addressed the question of people staying in
jails awaiting final conclusion of their trials or convictions, and
that was ruled as being wrong. What about the fact that many of them
now sit on death row for years and years with access to libraries and
computers and everything they could possibly need so they continue to
drag out this process? There has to be an end to it.
The habeas corpus provisions in the bill, S. 735, do moderate the
redundancy of the current situation through the time limits on Federal
habeas filings, stricter limits on the repetitive habeas filings, and
more deferential standards of review. But they do not address the
underlying problem of pointless readjudication in the lower Federal
courts. The Kyl amendment addresses the root cause of the existing
problems of delay and abuse by eliminating these habeas corpus reviews
of the State judgments.
I think we have seen where this has been changed in the District of
Columbia. That has worked quite well. The experience here in DC
demonstrates that the rights of defendants can effectively be protected
without the redundancy of these habeas corpus reviews in the lower
Federal courts. This amendment, as I understand it, would extend those
benefits to all the other States.
Punishment is intended to be a deterrent to heinous crime. Under the
present system, however, many killers do not fear the punishment
because they know of the delays that will be involved. The Kyl
amendment addresses this problem, and I commend him for his efforts. I
certainly support this amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. BIDEN. Mr. President, I yield myself the remainder of the time.
Let me respond quickly to my friend's comment in response to what I
had said.
First of all, he said this is about winning freedom. This is not
about winning freedom. Habeas corpus is granted--no freedom. It means a
new trial.
He points out very forthrightly that he attempts to prevent folks
from going to Federal court except as it relates to being able to go to
the Supreme Court. It is not the Supreme Court's job to take a detailed
look at every State court conviction. It is for the Supreme Court to
decide weighty issues of Federal constitutional law. That is why we
have Federal courts and that is why my committee spends so much time, a
significant portion of it, considering the nomination of Federal
judges. Our system depends on Federal courts, all the Federal courts,
being the safeguarders of Federal law.
Let us just put this in very practical terms. Let us assume he is
right, the State courts are fully capable and do not need any Federal
review. What you end up with is as many as 50 different interpretations
of the Federal Constitution; 50 different ways in which 50 different
States could interpret whether or not a constitutional right has been
denied or not denied. Just from a very practical standpoint that is not
good policy. Whereas, when you have the appeal to the Federal court
system, that becomes the law, the law of the land governing all 50
States.
I also point out that the State--as the Senator said: Look, we allow
folks who are convicted in State court to go to State courts for their
appeal and folks convicted in Federal court to go to the Federal courts
for their habeas corpus petitions. The problem is that Federal court
judges are trained in their experiences in interpreting the Federal
Constitution. State courts hardly deal with the Federal Constitution.
They deal with the State constitutions. We should have the people who
are trained and experienced in interpreting the Federal law relative to
the Federal Constitution being able to determine whether there has been
a violation of that Federal law or, in this case, the Federal
Constitution.
Last, Justice Powell, I am confident--and I am willing to bet; you
are not allowed to bet on the floor--but figuratively speaking, I would
be willing to bet him dinner at any restaurant in America that Justice
Powell does not support his amendment. I can say that with certainty
because Justice Powell's commission came forward with an explicit
guarantee that there would be access to Federal courts; an explicit
guarantee. They made it absolutely clear that it is essential there be
access to the Federal courts. I do not doubt that Judge Bork would
support this, I do not doubt that at all. In fact, I am certain he
would and we should all keep that in mind.
So I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. How much time remains?
The PRESIDING OFFICER. The Senator from Arizona has 6 minutes. The
Senator from Delaware has 1 minute 1 second.
Mr. HATCH. Mr. President, I ask both sides to allow me to have a few
minutes just to make--I ask unanimous consent I be given a few minutes
just to make some short comments.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I have listened to this debate and I really
want to compliment the distinguished Senator from Arizona. I think this
has been one of the most spirited parts of this whole debate on the
habeas corpus provisions of the bill. I deeply appreciate, of course,
the frustration some have with the Federal court's micromanagement of
State court decisions. Indeed, I think the abuses of Federal habeas
corpus practice fuel the desire to remove the Federal courts altogether
from the review process. The Kyl amendment would effectively end
Federal habeas review of State convictions where the State already has
postconviction collateral review. And I can appreciate my colleague's
willingness to address the gross abuse that currently occurs under our
Federal habeas process. We are all sick of it. Something has to be
done.
Senator Kyl's amendment would return habeas review to its original
moorings, as a corrective process where no other real remedy exists.
And it deserves consideration. [[Page S7836]]
In the early history of this country, habeas review was not available
at common law to review by any other court a conviction of a felony
entered by a court of competent jurisdiction. The function of the writ
was to free people who had been imprisoned illegally. Let us understand
what I am saying. The constitutional great writ is preconviction.
That is the Constitution writ. The writ of habeas corpus we are
talking about is postconviction, and it is a statutory writ that can be
changed readily by the Congress of the United States. Senator Kyl has
cogently pointed out that that is exactly what it is. The writ is
guaranteed against suspension by the Constitution. The earlier great
writ was well understood to refer to habeas for Federal prisoners, only
Federal prisoners. The Kyl amendment appreciates the history of the
writ and attempts to return it to its original understanding. He has
argued that nobly and well.
I think the proposal of the Senator from Arizona deserves close
scrutiny, and he should be complimented for his efforts to address this
difficult problem. I have to say that I believe there needs to be
postconviction habeas corpus review. But I also believe that the
Senator makes a very strong point because, as a lot of people do not
know, the District of Columbia has done away with postconviction habeas
corpus review, collateral review. And it has worked very well in the
District of Columbia. All the Senator is saying perhaps is that we
should consider doing that for the country as a whole.
So I just wanted to make these few short comments. I have to say that
I compliment my friend and colleague from Arizona for his intelligence
on this issue, and for the very, very spirited debate that we have had
here on this. I want to express that for all concerned.
The PRESIDING OFFICER. Who yields time?
Mr. KYL addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, I would like to use the remainder of my time
and close the debate, if there are no others who wish to speak.
Mr. President, first of all, let me compliment the Senator from
Delaware who has conducted a very intelligent and thoughtful debate. I
appreciate that. I very much appreciate the comments of the Senator
from Utah just now. It is only because of his tenacity that this issue
is before us. As he said, he has been fighting this issue for years to
try to bring some reform to the Senate and was able to do that finally
in the bill that he brought to the Senate floor. I appreciate very much
his efforts.
I also appreciate the comments he just made. He is exactly correct in
describing my amendment as an attempt to return the habeas petition to
its original meaning. There is a statutory postconviction remedy, as he
points out. I believe he is very familiar, as a matter of fact, with
Congress' law of 25 years ago under which the District of Columbia uses
a purely quasi-State court system for the review of its writs and does
not allow prisoners to go into the Federal system, a system which has
worked very well and which we have been invited to consider as a result
by Federal judges who have written on the subject.
Let me also address briefly two points, one made by the Senator from
Pennsylvania, and one by the Senator from Delaware. The Senator from
Pennsylvania questioned the constitutionality of what we are doing
here. I understand the point he was making. But I do not think that the
constitutionality of what we are proposing here is in doubt. The U.S.
Supreme Court has upheld this procedure unanimously in a 1977 opinion,
Swain versus Pressley. The opinion was written by Justice Stevens. That
was--to use the phrase--``bandied about'' a fairly liberal court in
1977. Subsequently, the Federal courts have consistently held that the
remedy provided in this District of Columbia court system, which does
not permit a Federal writ of habeas corpus, is adequate and effective
to test the legality of detention.
Among the cases are, for example, Garris versus Lindsay in 1986, a
D.C. Circuit Court case, and Saleh versus Braxton, a District of
Columbia District Court case in 1992. So consistently the courts have
upheld, and I also cited the U.S. Supreme Court decision upholding the
constitutionality, as well.
The Senator from Delaware argued finally that there could be 50
different interpretations of the constitutional law, if the State court
prisoners are relegated only to a State court habeas remedy. With all
due respect, I do not think that is correct because, as we all know,
those of us who are constitutional lawyers anyway, the U.S. Supreme
Court precedents must be followed when State supreme courts--or as in
New York's case, it is called the court of appeals, or the circuit
courts--are adjudicating constitutional questions, they must follow
U.S. Supreme Court precedents.
Therefore, it is not possible for there to be 50 different
interpretations of Federal law by State supreme courts unless those
courts are dealing in bad faith, and I am sure that no one is
suggesting that is the case. It has always been the case that under our
Constitution, the Framers contemplated that State courts would be
making these interpretations. As a matter of fact, there is an
interesting book by Curt Sneideker who writes to this point. He said
that in our judicial system it has been understood from the very
beginning that State courts could pass on Federal questions. And, by
the way, he cites Federalist Papers No. 82 for that proposition.
Indeed, the Constitution itself expressly directs them to do so in
article VI, clause 2.
So very clearly, the State courts have always been thought of as a
place where Federal constitutional issues could be resolved. As I noted
earlier, Justice Powell has made a very convincing case, and he is not
the only one. But he specifically has made a convincing case that the
State courts have the competence to rule on these issues.
Mr. President, just in summary, again I compliment both managers of
this bill for the very intelligent way in which they have approached
this issue. I appreciate the opportunity to debate my amendment in this
way, and I will simply say that in summary, what I am trying to do with
my amendment is to ensure that there is an adequate remedy for all
habeas petitions for both Federal and State court prisoners, Federal
prisoners in the Federal system, State court prisoners in the State
court system, but to limit State court systems to the State just as
Federal writs are limited to the Federal system.
The only exception which we could not take away, even if we tried--
and, of course, we do not want to--even in the State court system,
prisoners have the ability to go to the U.S. Supreme Court, the
ultimate Federal court, to test the propriety of the final decision of
the State court, in most cases called the State supreme court. So there
is adequate ability to protect the constitutional rights of both State
and Federal prisoners.
My amendment simply helps to solve this problem of overburdened
Federal courts by taking out of the Federal courts somewhere between 25
and 40 percent perhaps of the cases that are currently adjudicated not
only in State courts but in a duplicative way in the Federal courts, as
well.
I urge that my colleagues support my amendment.
Mr. BIDEN. Mr. President, do I have any time left?
The PRESIDING OFFICER. The Senator from Delaware has 1 minute and 19
seconds.
Mr. BIDEN. Mr. President, my staff pointed out to me, as I sat down
when I said we should keep that in mind, I said in jest that we should
keep that in mind, my reference was to Judge Bork. I believe Powell
does not support this, the Powell Commission would not support this,
and that Justice Bork would. We should keep in mind the distinction.
But I would also like to point out, as my staff pointed out to me, in
Wright versus West, the Supreme Court case decided a couple of years
ago, where the Bush administration sought to ask the Supreme Court to
rule on the standard of full and fair, which is what Senator Kyl is
proposing, Justice Rehnquist, from his home State of Arizona, refused
to adopt the standard that Senator Kyl is proposing. He is certainly no
liberal. He refused to adopt the standard and insisted that there be
access to the lower Federal courts. [[Page S7837]]
But I thank my colleagues for their indulgence.
I yield the remainder of my time.
Mr. KYL. Mr. President, let me again compliment both managers of the
bill. I think this has been a good debate. I reiterate my amendment
simply restricts the State court prisoners to the Start court as
prisoners until they are able to go the to U.S. Supreme Court. I
believe this will significantly reduce the number of duplicative
appeals. That is what this is all about on the habeas corpus reform, to
strengthen the bill. In any event, I reiterate that this is a good bill
that we should all support.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Utah.
Mr. HATCH. Mr. President, I compliment both Senator Kyl and Senator
Biden. Both have presented very interesting and good arguments. They
both deserve being listened to.
Mr. President, I ask unanimous consent that the vote on the Kyl
amendment be at a time to be determined by the majority leader, after
consultation with the minority leader.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, do we first have to ask for the yeas and
nays?
Mr. HATCH. Yes. I ask for the yeas and nays on the Kyl amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Ms. SNOWE. Mr. President, I would like to join my colleagues in
supporting S. 735, the Comprehensive Terrorism Prevention Act. This
legislation contains a broad range of needed changes in law to enhance
our country's ability to combat terrorism, both at home and from
abroad. The managers of this bill have described its provisions in some
detail, so I will not repeat their comments. Briefly, however, this
bill would increase penalties: for conspiracies involving explosives,
for terrorist conspiracies, for terrorist crimes, for transferring
explosives, for using explosives, and for other crimes related to
terrorist acts.
The bill also contains habeas corpus reform to curb the abuse of
habeas corpus and to address the acute problems of unnecessary delay
and abuse in death penalty cases. The bill also includes provisions to
combat international terrorism, to remove aliens, to control
fundraising for foreign terrorists, and procedural changes to
strengthen our counterterrorism laws. Among those strengthening laws
are a requirement to use chemical tagging in plastic explosives, to
criminalize a threat to use a weapon of mass destruction, and to add
conspiracy crime to certain terrorism offenses.
Finally, the bill authorized increased funding for Federal law
enforcement agencies, providing $1.5 billion over 5 years for the FBI,
DEA, assistant U.S. attorneys, the INS, and the U.S. Customs Service.
Mr. President, I would like to concentrate the remainder of my
comments of two provisions of mine that are included in this bill with
the assistance of the chairman of the Judiciary Committee, Senator
Hatch, and our distinguished majority leader, Senator Dole. These two
provisions are the Terrorist Exclusion Act and the Law Enforcement and
Intelligence Sources Protection Act, both of which I have introduced
separately this session of Congress.
Traditionally, Americans have thought of terrorism as primarily a
European, Middle Eastern, or Latin American problem. While Americans
abroad or U.S. diplomatic facilities have been targets, Americans have
often considered the United States itself largely immune from acts of
terrorism. Two events have changed this sense of safety. The first was
the international terrorist attack of February 26, 1993, against the
New York World Trade Center, and the second was the shocking domestic
terrorist attack this April 19 against the Federal building in Oklahoma
City.
I first introduced the Terrorist Exclusion Act in the House 2 years
ago, and this year I have reintroduced the legislation in the Senate
with Senator Brown as my original cosponsor. The Terrorist Exclusion
Act will close a dangerous loophole in our visa laws which was opened
up in the Immigration Reform Act of 1990. That bill eliminated then-
existing authority to deny a U.S. visa to a known member of a violent
terrorist organization.
The new standards required knowledge that the individual had
personally been involved in a past terrorist act or was coming to the
United States to conduct such an act. This provision will restore the
previous standard allowing denial of a U.S. visa for membership in a
terrorist group.
The elimination of authority to exclude a foreigner from the United
States for mere membership in a terrorist group happened in the context
of Congress' rewrite of the old McCarran-Walter's Act. The McCarran-
Walter's Act contained a wide range of visa exclusions for ideological
or associational reasons. But in narrowly refocusing all visa
exclusions on personal acts, it perhaps inadvertently treated
foreigners who join violent terrorist organizations no differently than
if they had merely joined a political club, or fraternal order. This
removed a valuable tool for protecting American lives. In my view, and
I am sure the view of the vast majority of Americans, there is a
difference.
I discovered this dangerous weakness in our visa laws in early 1993
during my investigation of the State Department failures that allowed
the radical Egyptian cleric, Sheikh Omar Abdel Rahman, to travel to and
reside in the United States since 1990. I undertook this investigation
in my role as ranking Republican of the House International Operations
Subcommittee, which has jurisdiction over terrorism issues, a role I
have continued in the Senate as chair of the International Operations
Subcommittee of the Foreign Relations Committee.
Sheikh Rahman is the spiritual leader of Egypt's terrorist
organization, the Islamic Group. His followers have been convicted for
the 1993 bombing of the World Trade Center in New York, and the sheikh
himself is now on trial for his alleged role in planting and approving
a second wave of terrorist acts in the New York City area.
The significance of Sheikh Abdel Rahman is that he was clearly
excludable from the United States under the old pre-1990 law, but the
legal authority to exclude him ended with enactment of the Immigration
Reform Act that year. He was admitted to this country through an
amazing series of bureaucratic blunders.
But then, the 1990 law came into effect, and the State Department was
forced to try to deport him on the grounds that he once bounced a check
in Egypt and had more than one wife, rather than the fact that he was
the known spiritual leader of a violent terrorist organization. This
was before the World Trade Center bombing.
A high-ranking State Department official informed my staff during my
investigation that if Sheikh Abdel Rahman had tried to enter after the
1990 law went into affect, they would have had no legal authority to
exclude him from the United States because they had no proof that he
had ever personally committed a terrorist act, despite the fact that
his followers were known to have been involved in the assassination of
Anwar Sadat.
The urgency of passing this provision comes from the sad truth that
every day American lives continue to be put at risk out of deference to
some imagined first amendment rights of foreign terrorists. This is an
extreme misinterpretation of our cherished Bill of Rights, which the
Founders of our Nation intended to protect the liberties of all
Americans.
In my reading of the U.S. Constitution I see much about the
protection of the safety and welfare of Americans, but nothing about
protecting the rights of foreign terrorists to travel freely to the
United States whenever they choose.
The second of my bills contained in S. 735 is the Law Enforcement and
Intelligence Sources Protection Act. This legislation would
significantly increase the ability of law enforcement and intelligence
agencies to share information with the State Department for the purpose
of denying visas to known terrorists, drug traffickers, and others
involved in international criminal activity.
This provision would permit denials of U.S. visas to be made without
a detailed written explanation for individuals who are excluded for law
enforcement reasons, which current law requires. These denials could be
made [[Page S7838]] citing U.S. law generically, without further
clarification or amplification. Individuals denied visas due to the
suspicion that they are intending to immigrate would still have to be
informed that this is the basis, to allow such an individual to compile
additional information that may change that determination.
Under a provision of the Immigration and Nationality Act [INA], a
precise written justification, citing the specific provision of law, is
required for every alien denied a U.S. visa. This requirement was
inserted into the INA out of the belief that every non-American denied
a U.S. visa for any reason had the right to know the precise grounds
under which the visa was denied, even if it was for terrorist activity,
narcotics trafficking, or other illegal acts. This has impeded the
willingness of law enforcement and intelligence agencies to share with
the State Department the names of excludable aliens.
These agencies are logically concerned about impeding an
investigation or revealing sources and methods if they submit a name of
a person they know to be a terrorist or criminal--but who we do not
want to know that we know about their activities--who then goes on the
lookout list, is denied a visa, and then is informed in writing that he
or she was denied a visa because of known drug trafficking activity.
That drug trafficker then will know that the DEA knows about his or her
illegal activity and may be developing a criminal case. This
information is something the United States would want to protect, until
the case against is completed and, hopefully, some law enforcement
action is taken. At the same time, however, for the protection of the
American people we should also make this information available to the
Department of State to keep the individual out of our country.
The key issue is that travel to the United States by noncitizens is a
privilege, not a constitutional right. There is no fundamental right
for extensive due process in visa decisions by our consular officers
overseas. While I believe that our country should do what we can to be
fair in our treatment of would-be visitors to the United States, in
cases where providing information to an alien would harm our own
national security, complicate potential criminal cases or potentially
reveal sources and methods of intelligence gathering, we should err on
the side of protecting Americans, not the convenience of foreign
nationals.
Mr. President, I again congratulate Senator Dole, Senator Hatch, and
all of my other colleagues--on both sides of the aisle--who have been
instrumental in bringing this comprehensive counterterrorism bill to
the Senate floor for swift action. This is an example of our capacity
to act quickly on a bipartisan basis and in cooperation with the
administration on critical issues. It is my hope that this bill is an
example of what we can accomplish together in this body, and I hope we
will continue to approach issues important to the future of our Nation
in this manner.
I urge adoption of the bill.
Mr. HATCH. I now ask that the Kyl amendment be laid aside and the
Senator from Delaware be recognized to offer the last amendment to this
bill as soon as we have a quorum call.
Mr. President, I suggest the absence of a quorum.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The distinguished majority leader is
recognized.
Mr. DOLE. Mr. President, what is the pending business? Are we on the
final amendment?
The PRESIDING OFFICER. The Chair would observe we just dispensed with
the Kyl amendment. There is no pending amendment at this time.
Mr. DOLE. Is there a time agreement on the Biden amendment?
Mr. HATCH. Mr. President, I ask unanimous consent that the amendment
of the distinguished Senator from Arizona be laid aside; that as soon
as the distinguished majority leader is finished, we can move to the
final amendment, the Biden amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. How much time is the Biden amendment?
Mr. HATCH. Mr. President, I ask unanimous consent that there be 90
minutes equally divided between Senator Biden and myself.
Mr. COHEN. Reserving the right to object, I might indicate to the
Senator from Utah that Senator Biden indicated he will allow me to have
an additional 15 minutes separate and apart from this agreement.
Mr. HATCH. Let us make it 105 minutes with 45 minutes----
Mr. DOLE. I have a better idea. Why not the Senator from Utah give
him 15 minutes of his 45.
Mr. HATCH. That will be fine.
Mr. COHEN. I do not want to take the time of Senator Hatch.
Mr. DOLE. We want to finish this bill.
Mr. HATCH. That is fine with me. Half-hour to me, an hour to Senator
Biden.
The PRESIDING OFFICER. Is there objection? Does the Senator from
Maine object?
Mr. COHEN. No.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. Mr. President, then it would appear to me that we are not
going to finish this bill until after 5 o'clock. But we will take up
the telecommunications bill. We will be here late because we have
frittered away the afternoon here. We hoped to conclude action on this
bill by 1 o'clock. It is now 3:30, and it is going to be 5 or 6
o'clock. So we do not have any recourse because Senator Pressler and
Senator Hollings have been waiting all day long to take up the
telecommunications bill, and there will be votes and there will be
amendments probably until 10 or 11 o'clock tonight. So if we can
finish, whenever we finish this bill, we will be on the
telecommunications bill.
I understand the Senator from Delaware is now prepared to offer his
amendment, which will be the final amendment.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I see the distinguished Senator from Maine
is prepared to speak and utilize his 15 minutes.
Mr. COHEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Mr. COHEN. Mr. President, first let me thank the Senator from Utah
for allowing me to use 15 minutes of his time. I will try and cut it
down if I can, because I do not want to trespass on his time,
especially since I am going to be speaking in opposition to his
position. So it is kind generosity on his part, superimposed by the
majority leader, I might add, but nonetheless I appreciate it.
Mr. President, I have in my past life been both a prosecutor and
defense counsel. I believe firmly that some reform of habeas corpus is
necessary. Successive and repetitive petitions, appeals and Supreme
Court reviews have led to excessive delays and imposed costs on State
prosecutors' offices that otherwise would be dedicated to law
enforcement. I think these delays have rightly been perceived by the
American people as an abuse of the judicial process by those opposed to
the death penalty.
I also want to point out that I oppose the death penalty, but I
cannot support a system that allows respect for the law to be
undermined. Consequently, I believe many of the procedural reforms
contained in S. 735 are appropriate and necessary.
I support limits on successive, repetitive petitions. I support a
statute of limitations for filing habeas petitions. And I support time
limits on judicial consideration of habeas cases. I think these reforms
should be sufficient to eliminate the abuses of the habeas system that
have led to decade-long delays in many capital cases.
But the goal of habeas corpus reform ought to be that prisoners have
one complete bite at the apple.
The bill before the Senate gives prisoners one bite at the apple but
changes the law so that the bite is incomplete. It weakens the
standards under which Federal courts review constitutional errors that
take place in State courts by requiring a Federal court to defer to a
State court's reasonable interpretation and application of
constitutional law.
By weakening the effectiveness of the writ in this way, I think it is
going to erode what has been a cherished procedure over the centuries,
the hallmark [[Page S7839]] of Anglo-American jurisprudence. The writ
of habeas corpus is the last line of defense for constitutional rights.
An effective habeas remedy is especially necessary in modern times
because of the poor caliber of legal representation capital defendants
are being provided in capital trials.
Many of the States that produce a large number of capital cases have
no minimum competency standards for defense counsel. One State limits
the compensation for court-appointed counsel to $1,000 for all pretrial
preparation and trial proceedings--I repeat, $1,000 for all pretrial
preparation and trial proceedings.
Another State pays a maximum of $2,500. A survey by the Mississippi
Trial Lawyers Association estimated that the average capital defense
attorney is compensated at a rate of $11.75 an hour, just 2\1/2\ times
the minimum wage.
There are reported cases of trial counsel sleeping during trial, not
presenting any mitigating evidence during the penalty phase of the
trial, having only 6 months of legal experience and no criminal trial
experience, or filing a one-page brief on appeal.
In one of his last opinions from the bench, Justice Blackmun listed
six egregious examples of the poor representation many capital
defendants receive. One case Justice Blackmun described was that
involving John Young, who was represented in his capital trial by an
attorney who was addicted to drugs and who a few weeks after the trial
was incarcerated on Federal drug charges. The court of appeals of the
eleventh circuit rejected Young's ineffective assistance of counsel
claim on Federal habeas review and the Supreme Court denied certiorari.
Young was executed in 1985.
In another case, Larry Heath was represented on direct appeal by
counsel who filed a six-page brief before the Alabama Court of Criminal
Appeals. The attorney failed to appear for the oral argument before the
Alabama Supreme Court and filed a brief in that court containing a one-
page argument and citing a single case. The eleventh circuit found no
prejudice, and the Supreme Court denied review. He was executed in
1992.
The bill before the Senate does nothing to remedy the serious problem
of incompetent counsel in State court capital cases. But in light of
this, I think the Biden amendment is all the more imperative to
maintain the effectiveness of habeas under these circumstances. When
trial counsel has done little to protect a capital defendant's
constitutional rights at trial, at the very least, it seems to me the
Federal Government ought to provide effective Federal court review of
the State court conviction and sentence to ensure that the core
constitutional requirements have been satisfied.
Mr. President, I think Senator Biden has already talked at some
length about the case of Rubin ``Hurricane'' Carter. I read a book that
was written some time ago called ``The 16th Round.'' In ``The 16th
Round,'' we have a description of what happened to Rubin ``Hurricane''
Carter, the one time the middleweight prizefighter. It was not a death
penalty case, but it was a case of an innocent man being convicted for
a crime he did not commit, primarily because he was a black man who was
in the vicinity when a triple murder was committed.
It was way back in June 1966. Two light-skinned black men, one
described as thin, about 5 feet 11 inches, shot and killed three people
in a Paterson, NJ bar. Carter, a very dark-skinned, stocky,
prizefighter, 5 feet 8 inches tall, was driving in the vicinity with
two other people. They were stopped by the police and then released
because they did not match the description of the killers. Later that
night, Carter and a man named John Artis were again picked up by the
police, but the survivor of the shooting failed to identify them as the
killers. They were given lie detector tests and they passed.
In the meantime, a small-time thief who was robbing a factory nearby
the murder site told the police he had seen the commission of the
crimes, and in an attempt to curry favor with the police, he told them
Rubin ``Hurricane'' Carter was the killer.
Based on that information, Carter and Artis were tried, convicted,
and sentenced. Carter himself was sentenced to life in prison.
Ten years later, after the thief recanted his trial testimony, Carter
and Artis were given new trials. Then at the time of trial the thief
recanted his recantation. Carter and Artis were convicted again. The
New Jersey Supreme Court affirmed Carter's conviction by a vote of 4-3.
Then a habeas corpus petition was filed in Federal court. In 1985,
the court issued an opinion finding two serious constitutional
violations: The prosecutor's misuse of a lie detector test and the
denial of equal protection due to the prosecutor's unfounded racial
allegations against the defendants. The prosecution argued that the
defendants were simply out to murder white people when, in fact, the
evidence was that they both had many white friends.
The third circuit upheld the lower court's decision to grant the
petition. The Supreme Court denied certiorari. And the State of New
Jersey finally dismissed the indictment.
Here we have a situation where a person spent over 20 years in prison
over charges that were false. The attorney for Mr. Carter has written
to Senator Hatch to point out that if a proposal similar to the one on
the floor right now were law today, Carter's habeas corpus petition
would have been dismissed. He said, ``I do not see what legitimate
criminal justice purpose would be achieved by such a result.''
Indeed, the 16th round never would have occurred. The 15th round
would have knocked Carter out for the rest of his life, without him
ever having a legitimate opportunity to challenge the injustice that
took place 20 years ago.
So let us not fool ourselves. The substantive changes to the habeas
bill being proposed are not designed just to eliminate frivolous cases.
They are designed to weaken the Federal courts' role in scrutinizing
State court verdicts for constitutional error. Prof. Henry Monaghan
from Columbia University said it very well in a letter to Senator
Hatch. He acknowledged that he is ``no fan of habeas corpus.'' But he
was satisfied that the changes in the Supreme Court law and the
procedural reforms in this bill ``would go a long way to eliminating
abuses.'' He went on to urge that the substantive standards not be
altered:
I believe the writ's core function of affording independent
Federal review to mixed questions of law and fact should be
retained and that the deference provision in S. 735 should be
withdrawn. The deference provision in S. 735 would keep
habeas corpus from serving any meaningful role. Effectively,
it would repeal the habeas corpus statute.
Similarly, a former State prosecutor recently wrote to me that the
``reasonableness'' rule of deference in this bill is not the way to
speed up habeas corpus review. It is not a way to prevent the same
prisoner from filing more than one petition. Rather, ``it is an
unprecedented attack on the rule, as old as the Republic, that Federal
courts have the last word on what the Federal Constitution means and
how it is to be applied. It would require Federal courts to stand by
and do nothing even if presented with a State court ruling that was
wrong, and the cause of the person being unjustly imprisoned or even
executed.''
So, Mr. President, I think it is important that those accused of
serious capital crimes have one complete bite at the apple. I believe
the Biden amendment will make sure that one bite is complete and not
incomplete. I hope that it will receive the endorsement of the Senate,
because habeas corpus without it will become a hollow remedy, one that
I do not think would be worthy of the title ``the Great Writ.''
A strong case has been made for the procedural reforms in this bill.
They will increase respect for the law by stopping the endless delays
and appeals of capital sentences. But no case has been made for
changing the substantive standards applicable in federal courts for
well over a century. When we are making such radical changes in our
legal system, we should act prudently. We can always cut back on habeas
in the future if the procedural reforms in this bill do not work. But
we may never recover the habeas process once it has been effectively
been repealed by the substantive changes being proposed.
I yield the floor.
Mr. BIDEN. Mr. President, I thank the Senator from Maine. The Senator
from Maine has a reputation in this [[Page S7840]] body of being one of
the most thoughtful, and when he speaks in debates, unlike the Senator
from Delaware, a most measured Senator, and one whose career has been
marked by observable high points of principle. And this is, I detect,
from his speech, a principled issue here. This is an important issue.
This is not one where we should, quite frankly, be guided by the
legitimate but sometimes not fully articulated concerns of our
constituents.
I believe what our constituents want is what the Senator from Maine
has outlined. I doubt whether there is a man or woman in America who
thinks that Hurricane Carter should not be free today. I doubt whether
there are any people in America today who would have been happy had
this been the law and had he been denied the opportunity to make that
final plea in Federal Court.
Yet, if we amend the law along the lines of the Biden amendment,
which Senator Cohen supports, we would have drastically cut down
frivolous appeals and drastically cut down successful appeals. As a
matter of fact, there is no difference in the time limitation for
filing an appeal and the number of successive appeals that are allowed
between what Senator Hatch wants and what we want. The big difference
in what the Senator from Maine and I are saying is the standard the
court is able to apply when the Federal court looks at, as Professor
Monaghan states, those mixed questions of fact and law. This would
essentially not allow them to look at fact, just theoretically the law.
So what I propose to do is precisely what Professor Monaghan, who is
not a fan of habeas corpus, wants done. Let us be real clear right from
the start here what we are arguing about and what we are not arguing
about. Again, as my old buddy Sid Balick, says, ``keep your eye on the
ball.'' What are we arguing about and what are we not arguing about? We
are not arguing about whether or not to speed up the process of habeas
corpus review, and we are not arguing about reducing the current abuses
in the system.
I agree with my Republican colleagues from Utah and Pennsylvania that
we have to have a strict statute of limitations and a strict limit on
successive petitions. Put another way, how many times after that first
one, or under what circumstance, can you file another petition if you
are able to at all. Nothing I am trying to do today, nothing in my
amendment would change what the Republicans propose for speeding things
up or cutting down on abuses. They have a 6-month statute of
limitations in their bill. I am not trying to make that 9 months or 1
year or 2 years. I am not proposing to change a single word in the
statute of limitations. As this chart up here shows, in the Biden
amendment the time limits for filing a petition are the same as in the
Specter-Hatch provision. We both set limits on time.
Nothing in my amendment, nothing at all, would change what the
Republicans propose for speeding things up or for cutting down on
abuses.
The Republicans have a new strict limit on successive petitions in
their bill. Many of my liberal friends think these restrictions are
excessive. I do not. I have not attempted to change a word. I have not
attempted to change a word on their bill relating to successive
petitions. Not a period, not a comma of their proposal is changed by my
amendment.
Put another way, at the end of the day, or the end of today, even if
I were to win everything I am asking for, the statutory right of habeas
corpus will be drastically altered from what it is today. No longer
will we see a guy filing petition after petition. No longer will my
friend from Utah, my distinguished friend from South Carolina, Senator
Thurmond, my friend from Pennsylvania, my new friend and colleague from
Oklahoma, be able to put up on a board or reference cases which are
real and exist today where someone has sat, after having been convicted
for a capital offense, on death row for 2, 5, 10, 12, 15, 16, or 19
years. That will not be possible if we adopt my amendment.
Now, usually, the Senator from Utah has a chart out here listing the
number of petitions in several cases. I am not making light of that.
When he brings out that chart, if he does in his response, I want
everyone to look at it and understand that if the Biden amendment
passes, that would be the end of charts like that.
There would no longer be an ability for a convicted prisoner,
convicted of a capital offense, to be able to file those successive
petitions and delay for the number of years the charts have always
shown.
I also point out that we will still have the problem of irresponsible
State courts who do not read briefs, who do not take the time to follow
through. I cannot affect that, nor can they. At a Federal level, we
will have eliminated the ability to have those successive petitions.
So let the Senate be clear on what we are not arguing about. What we
are arguing about is whether we should dismantle the habeas corpus
process by dramatically restricting the Federal power of the Federal
courts to decide whether a State court got it wrong, whether a State
court wrongly convicted a person, whether a State court is wrongly
sending a person to death. That is what we will be changing.
That is where I part company with my Republican friends. I want to
fix the problem. They want to do away with the right. I want to get a
habeas corpus petitioner in and out of Federal court quickly. I do not
want to make it practically impossible for him to get into Federal
court. I want to say you get in, and you must get in quickly, and you
can only get in under certain circumstances, and you are out. The
Republicans want to slam the door of the Federal courthouse closed.
I know there are a lot of things about Federal overreaching, but one
thing I do not think most Americans--whether they are liberal or
conservative, whether they are moderate, whether they are Republican or
Democrat--I do not think they believe that is a remedy, to slam the
Federal courthouse door. They do not want it swinging off its hinges,
but they do not want it slammed shut.
What I propose is--to be able to use this silly metaphor--to be able
to open the door once, walk through the door, and say, ``Federal
judges, experts on the Federal Constitution, listen to my plea. Make a
decision. If you decide against me, I'm out, but listen to it.''
As the Senator said, the lawyer for Hurricane Carter, and I suspect
everyone else would agree he would be a man in jail the rest of his
life were that door slammed shut, had it been slammed shut in the way I
believe this present bill does.
So that is what we are arguing about.
