---

                           Amendment No. 1224

   (Purpose: To amend the bill with respect to deleting the rule of 
                      deference for habeas corpus)

  Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Delaware [Mr. Biden] proposes an amendment 
     numbered 1224.

   Mr. BIDEN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Delete page 105, line 3, through page 105, line 17.

  Mr. BIDEN. Mr. President, let Members be clear about what we are 
talking about.
  A petition for habeas corpus--I want to complicate this--a petition 
for habeas corpus is literally and simply a piece of paper on which a 
State prisoner says, ``I have been denied my constitutional rights in 
the following way,'' and takes that paper or has his lawyer take the 
paper and file that in a Federal court.
  In almost all instances, this is after his remedies have expired in a 
State court system. The issue is whether he or she should be able to 
file that in Federal court and under what circumstances.
  The piece of paper that a habeas corpus petition is written on says 
that the prisoner claims to be held or sentenced to death in violation 
of the Federal Constitution, the U.S. Constitution. It does not ask 
that the prisoner be released, but it does ask that he be given a new 
trial.
  Habeas corpus is the means by which Federal courts ensure that State 
[[Page S7841]] courts are following the Constitution. It ensures that 
those in jail or on death row were not only not put there mistakenly, 
but that they were not put there in violation of the U.S. Constitution.
  I might add, if we, in fact, eliminate Federal habeas corpus or in 
effect eliminate Federal habeas corpus, what we do is we leave to 50 
different States the potential for 50 different interpretations of fact 
and law.
  We all know if a Federal court makes a judgment on a Constitution in 
a circuit or in a district, it usually goes to a circuit, and then to 
the Supreme Court. We get a final national judgment on how to read that 
provision and that fact/legal mixture under the Federal Constitution. 
We have a uniform application of the law.
  The writ of habeas corpus, known historically as the ``great writ,'' 
is enshrined in the Constitution itself, which provides that ``The writ 
of habeas corpus shall not be suspended,'' article I, section 9.
  Unfortunately, under the current system, guilty people can sometimes 
delay their death sentences by filing frivolous habeas petitions. There 
is no time limit on when the petition has to be filed, and there is no 
statutory limit on the number of petitions.
  I have, in years past, proposed legislation that would reform this 
system to generally limit a petitioner to one petition in Federal 
court, and to impose strict limits on when that petition had to be 
filed. But my legislation also recognized in that one round of Federal 
review, the prisoner is allowed and must be allowed a full and careful 
review to ensure that we do not execute innocent people.
  The death sentence is unlike any other. There is no turning back once 
it has been carried out; to state the obvious, a mistake cannot be 
fixed. Because of that, we cannot allow the death penalty to be used 
against innocent people and we cannot allow it to be carried out 
unfairly.
  I am certain all of my colleagues would agree that, although the 
death penalty should be applied swiftly and with certainty, the worst 
thing in the world would be for it to be applied wrongly.
  My amendment tries to preserve the important role that habeas plays, 
while reducing delays. It strikes at what I believe is the issue that 
truly rises above all else in the Republican bill. It strikes the 
provision in the Republican bill that I think is the most troublesome, 
and that is the so-called rule of deference, which has been known 
around here the last 20 years that I have been here as the full and 
fair rule.
  This, in my view, and probably in the view of advocates of both sides 
of the habeas corpus debate, is the single most important provision of 
the Republican bill and the single biggest difference between my 
approach and their approach.
  As the chart I have just had put up illustrates, when it comes to 
speeding things up, Senator Hatch and I are in the same spot. Both our 
bills have time limits on when a petition can be filed. Both our bills 
have limits on successive petitions. But our bill differs when it comes 
to the issue of deciding these petitions.
  I said the Federal courts should exercise independent review while 
the Specter-Hatch bill requires Federal courts to defer to the States.
  It is important to realize that the deference standard in the 
Specter-Hatch bill effectively makes the rest of the bill irrelevant. 
After all, what difference does it make what the time limits are if the 
Federal courts are going to be precluded from examining what the State 
courts did in any event? What difference do the time limits make? That 
is the fundamental difference in our approaches, because that is what 
the result of the Specter Hatch bill will be.
  Let me give a hypothetical example. Suppose an innocent man is 
charged with a capital crime and during the investigation one of the 
witnesses identifies someone else as having committed the crime other 
than the defendant, a fact which is concealed from the defendant. And 
there are cases where this has occurred.
  At trial the witness identifies the defendant, the innocent man, even 
though the prosecution has in its possession the evidence that another 
witness identifies someone else as having committed the crime. But at 
trial, the second witness identifies the defendant, the innocent man.
  In addition, the witness testifies that he has never met the 
defendant before when, in fact, the prosecutor knows that the witness 
harbors a grudge against the defendant, the witness who identifies the 
defendant.
  Now, the prosecutor goes ahead and does not tell the defense about 
the details of what the witness previously said, that he previously 
said, no, I identify somebody else, and where the prosecution knows 
that the identifying witness has a grudge against the defendant.
  The State courts go ahead and uphold the conviction anyway, reasoning 
that the truthful evidence would not actually prove the defendant 
innocent.
  Let me get this straight now. If in a trial the stenographer here is 
accused of killing John Doe and the prosecutor interviews me as a 
witness. I say no, he did not kill John Doe, Charlie Smith killed John 
Doe. But then I say, no, I change my mind. I think he did kill John 
Doe.
  The prosecutor investigates and finds out that the stenographer and I 
have hated one another for the last 20 years, or I have held a grudge 
against the stenographer because he took down one of my speeches 
incorrectly.
  They never do that, I might add.
  Now, the prosecutor does not tell the defendant about my grudge 
against the defendant and about the fact that I initially identified 
somebody else. So, now there is a trial and he is convicted.
  After the conviction takes place, he files a petition for the writ of 
habeas corpus and proves that this information was withheld from him; 
that it would have made a difference to the jury. And the State court 
of Delaware says: No, no, even if that is true, it does not prove that 
he is innocent. It just proves that I have a grudge against him and it 
just proves that the prosecution was not totally honest. But it does 
not prove his innocence. Therefore, hang him. Or, in Delaware, lethal 
injection.
  Now, the fact of the matter is under the language of this bill the 
State court's decision on this issue, that is the scope of the 
prosecutor's duty to turn over the information, would be the absolute 
last word because, as long as the State court decision could be 
described by a lawyer as being reasonable, the Federal court could not 
overturn it. In this example, an innocent man may be put to death 
because, under this bill's provisions, the issue before the Federal 
court would be, was it reasonable for the State court to say that they 
are upholding the conviction because the information withheld would not 
have proved his innocence?
  The probability is the Federal court would have to say that is 
reasonable. It may not be right. We might not have decided it that way, 
but it is reasonable. A reasonable man could say, all right, even if 
the jury had known this, it did not prove his innocence. They still may 
have convicted him. The Republican bill says:

       An application for writ of habeas corpus on behalf of a 
     person in custody pursuant to the judgment of a State court 
     shall not be granted with respect to any claim that was 
     adjudicated on the merits in State court proceedings unless 
     the adjudication of the claim * * * resulted in a decision 
     that * * * involved an unreasonable application of, clearly 
     established Federal law, as determined by the Supreme Court 
     of the United States.

  That is a heck of a standard to have to apply.
  So, I say goodbye to the stenographer. He is off to death row. He 
probably thinks he is off to death row when he has to come out here and 
take down my speeches. But he is off to death row. Because even 
though--even though--the prosecution withheld evidence that goes to his 
innocence, instead of the court saying, ``This would have made it 
difficult for the jury to find beyond a reasonable doubt he was 
guilty,'' which would have been a reasonable conclusion to reach as 
well, they said ``This does not prove that he is innocent so we are not 
going to overturn the conviction.'' So he is gone. Because, as long as 
the State court decision could be described by a lawyer as being 
reasonable, the Federal court has to defer to the State court.
  The effect is there is no habeas corpus review on matters of fact and 
law at a Federal level. My amendment simply strikes this language. It 
leaves in the bill the rest of the reforms--time limits, limits on 
second petitions--but it strikes the deference rule and allows 
[[Page S7842]] the current practice of independent review by the court, 
the Federal court. The Federal court should be able to say in that 
circumstance: We understand what the State court did but under our 
interpretation of the Constitution and his constitutional rights we 
believe that withholding this information was so prejudicial that he 
should get a second trial with all the facts being known. They should 
be able to do that. This would preclude them from doing that.
  I think there are four parts of this long sentence I read up here on 
the board, four parts of this long sentence which have a devastating 
effect.
  (Mr. THOMPSON assumed the chair).
  Mr. BIDEN. First, the language sets out clearly what the general 
principle is. The general principle in this language in the Hatch bill 
is that Federal courts shall not grant a claim that was adjudicated in 
State court proceedings. That is what is at the top. It seems to me 
that is what the sponsor of this bill views as the most desirable 
outcome in a habeas petition. Of course, this is directly contrary to 
the purpose of habeas corpus, which is to have Federal courts, and in 
particular the Supreme Court, decide issues of Federal constitutional 
law.
  The second problem, in this instance, the bill seems to allow an 
exception to the general rule but one that is likely to be illusory 
because a claim can be granted only if the State court's application of 
Federal law to the facts, before it was unreasonable, not merely wrong 
but unreasonable. It could be wrong but viewed as reasonable. This is 
an extraordinary deferential standard to the State courts, and I 
believe it is an inappropriate one. It puts the Federal courts in the 
difficult position of evaluating the reasonableness of a State court 
judge rather than simply deciding whether or not he correctly applied 
the law, not whether he did it reasonably. You can have a reasonable 
mistake. They could reasonably conclude that on a constitutional 
provision, it should not apply, when in fact the Supreme Court would 
rule it must apply. Reasonable people could have reached the conclusion 
prior to the application of the Miranda decision that it was reasonable 
not to tell someone their rights. That is a reasonable decision. It may 
not be born out of animus. The Supreme Court said no. You have to tell 
people their rights. A reasonable standard of review is the lowest 
standard used by Federal courts.
  In reviewing the constitutionality of statutes, for example, in cases 
where courts used the reasonable or rational standard, it looks only at 
whether there is any rational basis supporting the statute. It is a 
cursory standard of review. In fact, looking at thousands of cases 
since the late 1930's, our Supreme Court has found--to the best of my 
knowledge--no statute invalid when they have applied the reasonable 
standard.
  Reasonable people, like Senator Hatch and I, are going to be arguing 
on the floor about the regulatory reform bill and about the takings 
clause and all of those issues, right now if the U.S. Congress passes a 
law saying you cannot have more than 2 parts per billion of a 
carcinogenic substance in the liquid effluent coming out of your 
factory, the Supreme Court says not whether that does or does not cause 
cancer, they say it is reasonable for those folks in the Senate and the 
House to conclude that is dangerous and, therefore, they will uphold 
the statute.
  It is the lowest standard. It is one thing to apply that when we are 
protecting the public against environmental pollution. It is another 
thing when we are applying that standard to the application of 
constitutional rights to individuals. There we have always applied the 
highest standard. The Government has been required to meet the highest 
standard before they can put someone in jail or put them to death. This 
reasonableness standard reduces to its lowest common denominator.
  The court also uses a reasonableness standard in reviewing Federal 
agencies' interests, and the administrative statutes. I will not get 
into it now. But the Chevron case and others are cases we debated about 
whether or not, in applying civil law, which standard we should apply. 
But the bottom line is this, folks. If the standard is reasonableness, 
it is the lowest common denominator. And, if the Federal court is 
required to give deference to a State court on the grounds that it 
acted reasonably as opposed to correctly, a lot of folks--I should not 
say a lot; I do not know how many--but there will be individuals who 
will be put to death where they otherwise would not have been put to 
death if the Federal court were able to apply the standard that 
determines their ability to go back and look at the facts and the law 
and make an independent judgment.
  By the way, let me say the whole reason to have the ability of a 
defendant to go into Federal court is to allow Federal judges to apply 
the Federal Constitution and determine whether they think the State 
court applied it correctly. But if you limit what they can look at and 
the standard they use in review, you have in effect undercut the very 
rationale for allowing the defendant to get into that Federal court in 
the first place.
  The third problem with this language is the bill's reasonableness 
exception is limited not only by the requirement that the decision must 
have been unreasonable, but that it must have been unreasonable in 
light of Supreme Court law. So even if there is a Federal court 
decision directly on point, the State court could ignore it as long as 
the application of law had not been directly decided by the Supreme 
Court.
  As the Presiding Officer knows, as a former prosecutor and a first-
rate trial lawyer, there are a number of lower Federal court decisions 
that never get to the Supreme Court because no one bothers to conclude 
that they were wrongly decided. And they are accepted as Federal law. 
In this case, you could have all the districts or the circuits agreeing 
on one application of the law, and the State court ignore what the 
Federal courts have said because there is no Supreme Court decision on 
point. That seems to me to be a very dangerous precedent. Even so, if 
there is a Federal court decision directly on point, under this 
language, the State court could ignore it as long as the Supreme Court 
has not spoken to it. In other words, State courts could ignore the 
decisions of the lower U.S. courts interpreting the Constitution 
without any prospect of being corrected by Federal courts.
  For example, an appeals court recently held that a defendant cannot 
be prosecuted criminally and have his property forfeited under the 
civil forfeiture laws because of the double jeopardy clause prohibiting 
that. That ruling is clear. It is unambiguous. But it is not a Supreme 
Court ruling. Under this bill, a State court, which subsequently 
refused to follow that interpretation, could not be corrected by habeas 
corpus review because it could never get back into the Federal court 
system.
  This limitation on Supreme Court laws is particularly nonsensical 
because the Supreme Court generally does not accept for review 
decisions by circuit courts of appeal unless there is a split in the 
circuits, as the Presiding Officer knows. If all the circuits agree on 
a principle of law, the Supreme Court would have no reason to address 
it.
  So under this standard that we are about to write into the law, a 
State court could ignore a rule that all the circuit courts agreed on 
and no Federal court could correct that State decision. That is 
preposterous; maybe unintended, but that is the effect.
  Fourth, the exception to the general rule in habeas shall not be 
granted if the State court ajudicating the claim is further narrowed by 
the language in the statute requiring that the Federal law at issue 
must have been clearly established. Not only must the decision of the 
State court have been unreasonable, and not only must it have been 
unreasonable in light of Supreme Court law, not Federal law, but it 
must have been unreasonable in light of Supreme Court law that is 
clearly established.
  The one thing we know is that where lawyers are involved, there is 
little that can be said to be clearly established. So where the 
application of a U.S. Supreme Court decision to a new set of facts is 
unclear, the State court need not worry about it.
  For instance, the Supreme Court quite logically has held that the 
prosecution must give to the defendant any evidence it has that is 
favorable to him. It is called justice--justice. This is not a game. 
Prosecutors are not [[Page S7843]] there to determine whether they can 
win. They are there to do justice. And so the Supreme Court has said 
that, if the prosecution has at its disposal evidence that goes to the 
innocence of the defendant, that has to be made available to the 
defendant. But is a certain kind of evidence favorable to the accused? 
That might not be clearly established. And so the State courts will be 
free to go their own way.
  For example, a clear case would be assume that in the State court, 
the prosecutor had evidence there were two witnesses at the same time 
who said the defendant did not do it. Well, they cannot withhold that 
from him. But they may conclude at the State court level that they have 
evidence there is a motel receipt that indicated the defendant was at 
such and such a place when this crime was committed. They can 
reasonably conclude at a State court level we really do not think that 
goes to the innocence, that is not favorable to the defendant, that is 
a marginal question so we are not going to tell him.
  Now, what you have to do, if you are filing a Federal habeas corpus 
appeal to get them to go back and get them to look at that, you have to 
prove that judgment was unreasonable even though there is a Supreme 
Court decision out there saying you have to make things that are 
favorable to the defendant available to the defendant, because it is 
not clearly established law, because it is not around long enough to 
have been applied to 10, 20, 30 fact circumstances.
  Now, it seems to me that we are requiring an awful lot of hurdles and 
limitations on what a Federal judge can look at once we get to court. 
Again, keep our eye on the ball here. We are not talking about 
successive abilities to get into Federal court. We are not talking 
about extended time limits to get into Federal court. We are not 
talking about whether or not you can get into Federal court repeatedly. 
We are only talking about when you get to Federal court what is the 
Federal judge able to look at. And right now the Federal judge is able 
to look at the whole thing from ground up if he wants to. He can make 
an independent decision based on what the specific statement by the 
defendant is in his petition as to why they should be granted a new 
trial. They can go back and look at the facts in the case and the law 
and apply them in conjunction with one another.
  So let me summarize what I think this language in the Hatch bill 
says. First, it states that habeas relief cannot be granted by a 
Federal judge if a State court has adjudicated the claim, which is 
directly contrary to the entire purpose of Federal habeas corpus.
  Second, it creates what looks to be an exception but one that is 
largely illusory. It requires that a State court merely behave 
reasonably--not correctly, reasonably. It requires that a State court 
merely act reasonably in relation to a Supreme Court decision, not in 
relation to decisions of lower Federal courts in their State. And it 
requires them to act reasonably only if the Supreme Court law can be 
said to be clearly established. All this amounts to is that State 
courts in almost every case will be free to reach virtually any 
decision without any chance of Federal review later. This rule, the so-
called rule of deference, turns habeas on its head. The purpose of 
habeas is to correct State court errors. But if Federal courts have to 
defer to State court decisions, they will not be able to correct their 
mistakes except in the most egregious circumstances.
  Now, through the years we have fought in this Chamber battles over 
the so-called full and fair standard, essentially what Senator Kyl had 
introduced. At least he was straightforward and blatant about it. He 
said: Look, my purpose here is to do away with any State prisoner being 
able to get into a Federal court, period, and because the Constitution 
says you can go to the Supreme Court under rare circumstances, I am not 
going to try to eliminate it. But he said 40 percent of the delay is in 
Federal court, so what I am going to do is do away with the ability to 
get into Federal courts.
  Straightforward. This provision suggested by my Republican friend 
essentially does the same thing, making it sound like we are really 
letting someone get in.
  Admittedly, the most egregious cases, which would not be captured by 
the Kyl amendment, would be captured in this amendment. But the vast 
majority of cases are in a gray area. And again my proposal to delete 
this standard will in no way slow the process up and will in no way 
increase the number of opportunities that a prisoner has to file a 
petition.
  While this language looks different than full and fair, the language 
in this bill would have virtually the same effect. It would prevent 
Federal courts from granting relief for a violation of the Federal 
Constitution because it would require deference to the State decision 
unless that decision were unreasonable. Being wrong would not be enough 
to get it overturned. It would have to be unreasonable.
  If I can make an analogy to the Presiding Officer--who is the only 
one here at the moment and so that is why I am speaking to him, 
although I always like to speak to him--it is like this deal with good-
faith exceptions to the fourth amendment, search and seizure. All of a 
sudden, by the way, my friends on the right side of the Chamber, my 
right and on the ideological right, all of a sudden are beginning to 
realize: Wait. Maybe we do not want to do away with that so quickly. 
But at any rate, there is an exception that if a cop violates the 
fourth amendment but did it in good faith, it should be admissible in 
court.
  Well, you can theoretically argue that makes sense. But how about 
where a court wrongly but in good faith, in good faith wrongly decides 
a provision in the Constitution, wrongly decides it, the result of 
which is the person goes to death. Are we going to reward ignorance? 
Are we going to reward reasonableness just because it came from the 
State? It may be reasonable that he reached that decision but wrong. 
Wrong. This would preclude Federal courts from looking at the merits--
whether it was wrongly decided. They only get to do it if it meets the 
threshold that it was an unreasonable application of the facts and the 
law.
  When the Supreme Court announces a constitutional wrong such as the 
right of the defendant to know about evidence held by the prosecutor 
that suggests he is innocent, it necessarily leaves open the question 
of how that general rule applies to specific facts. Does that mean 
evidence that could be used to impeach a witness must be turned over? 
How strong does the evidence need to be before the requirement kicks 
in? The Supreme Court cannot possibly decide all of these issues in one 
case.
  But lawyers arguing in courts will be able to come up with all sorts 
of different ways of applying that general rule in individual cases. 
And many of those ways of applying them may be reasonable. That means 
that Federal courts will be unable to review State decisions through 
habeas corpus and begin to establish some uniform law in that portion 
of the country. Instead, virtually any decision a court reaches will 
have to be considered acceptable solely because it was reasonable.
  I ask everybody listening to this, do we want 25 different 
interpretations of what is reasonable? Do we want 25 or 50 different 
versions of what is reasonable? That flies in the face of the notion of 
a uniform application of the only unifying document that exists in our 
Nation, the U.S. Constitution. This would mean that the Federal 
Constitution would be determined by State court judges.
  Placing primary responsibility for the Federal Constitution in the 
hands of State courts is a dramatic departure from this country's 
historical principle, and that is that it is the Federal courts that 
should be the final arbiters of Federal law. It would relegate us to a 
system in which the 50 State court systems and in fact the individual 
judges within those systems are the separate and ultimate arbiters of 
what the Constitution means.
 The meaning of the Federal Constitution could be different, depending 
on what State you are in.

  Independent review is the only sensible approach, I suggest. Even 
Justice O'Connor has said in rejecting a judicially created full and 
fair rule--which is what this rule is--that:

       We have never held in the past that Federal courts must 
     presume the correctness of State court legal decisions.

  Let me stop there and read it again:


[[Page S7844]]

       We have never held in the past that Federal courts must 
     presume the correctness of State court legal decisions.

  This requires us to presume--presume--the correctness of State court 
decisions. I am not certain that the State of Mississippi would apply 
the Constitution the same way the State of New York would, as the State 
of California would, as the State of New Hampshire would. I do not know 
if anybody else is very sure of that.
  Let me go on and read the entire quote from Justice O'Connor:

       We have never held in the past that Federal courts must 
     presume the correctness of State court legal decisions or 
     that State courts' incorrect legal determination has ever 
     been allowed to stand because it was reasonable. We have 
     always held that Federal courts, even on habeas, have the 
     independent obligation to say what the law is.

  That is the Federal constitutional interpretation by the Supreme 
Court. I quote her again:

       We have never held . . . that State courts' incorrect legal 
     determination has ever been allowed to stand because it was 
     reasonable.

  This would allow incorrect State court decisions to stand because 
they are reasonable, although incorrect.
  That quote, I might add, was from Wright versus West, decided in 
1992. Even Justice Rehnquist----
  The PRESIDING OFFICER. All the time of the Senator from Delaware has 
expired.
  Mr. BIDEN. Mr. President, I ask unanimous consent, although I have 
much more, that I be allowed to have 7 more minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, even Justice Rehnquist publicly stated that 
this full and fair doctrine goes further than is wise, and the Supreme 
Court, reflecting that view, has on at least five occasions refused to 
apply this doctrine. Let me give some of the cases.
  The effect of the deference rule is best illustrated, I think, by 
looking at some of the real-life cases. The last time the Federal 
courts were required to defer to State courts, we executed an innocent 
man. That was in 1915. There is a chart I have to illustrate that.
  Leo Frank, a Jewish man, had been convicted and sentenced to die by a 
jury intimidated by an angry lynch mob outside the courtroom. The mob 
could be heard inside the courtroom. Mr. Frank's lawyers were so 
intimidated that they left the courtroom at times because they feared 
for their lives.
  Nevertheless, the State court reviewing the conviction concluded the 
trial had been fair and upheld the conviction. A majority of the 
Supreme Court voted to uphold the conviction and, after determining 
that they were required to defer to the State court decision, upheld 
the conviction. The dissenters thought independent review was 
appropriate and, on that basis, they concluded that the State court 
decision was wrong.
  The Supreme Court applied the rule of deference in 1915, and Mr. 
Frank was killed in prison by an angry mob, and later the actual 
offender confessed and Frank was posthumously pardoned. But because of 
the deference rule, an innocent man was executed, and that is what is 
at stake today. We are talking about going back to the 1915 standard.
  Several years later, after the Frank case in Moore versus Dempsey, 
1923, the Supreme Court was faced with another similar case. Again, 
this time several African-American men were on trial for murder, which 
they claim was self-defense, when a mob attacked them in their church 
and set the church on fire. At the trial, the same mob armed and 
surrounded the courthouse. The State court held that there had been no 
violation of the constitutional right to a fair trial by an impartial 
jury, notwithstanding those little incidental facts.
  This time, the Supreme Court rejected the deference rule and 
concluded that independent review is required and the dissenters argued 
that the Federal court should defer to the State court decision and 
voted to uphold the conviction.
  Many years later, in the famous 1953 case of Brown versus Allen, the 
court considered a case in which the defendant had confessed after 
being subjected to psychological and physical coercion, sleep 
deprivation, and other types of pressure that put the confession and 
the resulting conviction in serious doubt.
  The State court found the confession to be voluntary, notwithstanding 
the circumstances. The Supreme Court overturned the conviction, 
applying independent review. Had they been required to apply this 
standard, they would have been required to hold that person guilty, 
even though he had been subjected to psychological and physical 
coercion and sleep deprivation before the confession was granted.
  These Supreme Court cases, and others I will not take the time to go 
into, illustrate in concrete terms what the effect of the deference 
rule is. There are also lower court cases in which habeas relief has 
been granted. These cases would be decided differently under the 
deference rule.
  Consider the recent case of Herrera, who was convicted of murder and 
sentenced to death. The State court denied his appeal and the habeas 
petition. A few months ago, a Reagan appointee of the Federal bench 
granted habeas relief because the prosecutor had threatened and 
intimidated witnesses and failed to disclose evidence that proved Mr. 
Herrera innocent and knowingly used false evidence in a closing 
argument to the jury.
  That was not some wacko liberal judge appointed by a liberal 
President. That was a judge appointed by Reagan. If, in fact, this law 
had existed at the time, he would not have been able to make that 
judgment. For instance, one woman told the police Herrera had not 
committed the killing. She was threatened by a police officer who said 
he would take away her daughter unless she cooperated. The prosecutor 
knew this. The prosecutor also insisted she change her testimony to 
implicate Herrera, and the judge found many other such violations of 
law, but the State court concluded, no, he was guilty; the conviction 
should stand.
  The Federal court corrected it. Based on this severe misconduct, this 
Reagan-appointee judge said but for the conduct of the police officer 
and the prosecutor, either Herrera would not have been charged with the 
offense or the trial would have resulted in acquittal. The prosecutor's 
misconduct was designed to obtain a conviction and another notch in 
their guns despite the overwhelming evidence that another man was the 
killer and the lack of evidence pointing to Herrera.
  This remarkable finding that a constitutional violation would put an 
innocent man on death row would not have occurred under the Hatch-
Specter bill. The same claims had been made to the State courts. There 
was nothing new in the Federal court habeas petition, but the State 
court found that they did not amount to a constitutional violation. If 
the bill's deference rule had been in effect, the Federal judge would 
have been foreclosed from correcting the State court's decision and 
saving an innocent man's life.
  Let me pose the question to Senator Hatch. In the Herrera case, the 
court was confronted with various questions, including whether the 
conduct of the police officer, when intimidating witnesses and 
withholding evidence, amounted to a violation of the Constitution.
  I would like to ask him when he comes back, would not his bill, which 
requires deference to the decisions of the State court, have prevented 
the judge from granting Federal habeas relief?
  Mr. HATCH. As I understand it, it is the Herrera case.
  Mr. BIDEN. It is the Herrera case.
  Mr. HATCH. I do not think so. The fact of the matter is, let me just 
take a second and look at that Herrera case.
  Mr. BIDEN. I would like to describe another case: Fred Macias. He was 
convicted of murdering two people in their homes. The main evidence was 
the testimony of another man who admitted having been in the house when 
the murder occurred, but who then claimed Macias was with him and 
committed the murder. Macias' lawyer did such a poor job. He did not 
investigate and discover a credible witness who provided an alibi.
  The State court rejected Macias' claim that his lawyer had failed to 
give him an effective representation. Only when a Federal court looked 
at the fact an innocent man was facing the death sentence was the 
conviction thrown out. [[Page S7845]] 
  The prosecution still tried to reindict Macias, but on being 
presented with all the evidence, a grand jury in that same jurisdiction 
refused to indict Macias again.
  Again, as I read the Hatch-Specter bill, the Federal court would have 
been forced to defer to the State court. So I would like to also point 
out another case, that of Hurricane Carter, which has been referred to.
 Carter was convicted of the murder of three people--despite the fact 
that he did not match the physical description of the killers, and was 
sentenced to life in prison.

  The prosecution used the eyewitness testimony of a thief who at first 
denied seeing Carter at the scene. But the police then showed the 
witness a manufactured lie detector test that falsely showed he was 
lying.--In the face of this pressure, the witness changed his 
testimony. The fact that the witness had been pressured into his 
testimony using a false lie detector was not disclosed to the 
defendant, and was concealed from the jury.
  The New Jersey Supreme Court upheld the conviction--but the Federal 
courts concluded that the prosecutor had unconstitutionally withheld 
evidence favorable to Carter. After habeas was granted, the State 
dismissed the indictment rather than seek a retrial in which it would 
have to give all the evidence to the defendant.
  The deference rule in this bill would have prevented the Federal 
courts from correcting the State court's decision that the prosecutors 
had not violated the Constitution.
  In fact, in that case, the State of New Jersey tried to win the case 
by arguing that the Federal court should defer to the State court. The 
Federal court instead exercised independent review, and ruled for Mr. 
Carter.
  Let me also discuss the case of Walter McMillian. McMillian was 
convicted of murder and sentenced to death. The main evidence at trial 
was the testimony of a white man who claimed to have been an 
accomplice, and who was granted immunity. Two other witnesses testified 
that they had seen McMillian's truck in front of the dry cleaners. The 
jury ignored the testimony of a number of friends and family members 
who said he was at a fish fry.
  After trial, a new investigation showed that the alleged accomplice 
who testified against McMillian at trial did not even know him at the 
time of the offense.
  That, in fact, he had denied McMillian's involvement in three 
interviews before finally fingering McMillian.
  That witnesses who claimed to have seen McMillian's low-rider truck 
could not have done so since the truck was not a low-rider at the time 
of the offense.
  That the accomplice had complained to prison doctors that he was 
being pressured to frame McMillian, and that the doctors told the 
prosecutors about this before trial.
  And that the State had interviewed other inmates who said the 
``accomplice'' had told them he was going to frame a man.
  The new investigation into the McMillian case showed that all of this 
evidence was withheld from the defendant at trial.
  Despite this new evidence, the Alabama trial court refused to grant 
relief, turning down the constitutional claims about perjured testimony 
and Government misconduct. Eventually, the Alabama Appeals Court 
reversed. But, had the Alabama Appeals Court come out the other way, 
the deference language would have barred the Federal court from 
preventing the execution of an innocent man.
  While my colleagues rightly point out the crush of repetitive 
petitions--many of which are frivolous, they leave the impression that 
habeas is no longer needed.
  The cases I have just described demonstrate how important it is to 
preserve independent Federal review. While most State courts try to 
apply the law properly, sometimes they fail because of police or 
prosecution misconduct, or simply because they make mistakes.
  Here are a few more examples of recent cases in which Federal courts 
granted habeas relief:

       In Brown versus Lynaugh (5th Cir. 1988), Habeas relief was 
     granted because the presiding judge left the bench, took the 
     witness stand and provided evidence against the defendant. 
     Even though that type of conduct seems to make the trial 
     patently unfair, the State court didn't think so. The rule of 
     deference has prevented the Federal Courts from correcting 
     that error.
       In McDowell versus Dixon (4th Cir. 1988), the conviction of 
     a dark-skinned African American was reversed because the 
     prosecutor had withheld eye-witness statements that the 
     assailant was white. The state courts found that this error 
     did not deprive the defendant of a fair trial. The Federal 
     court overruled and granted habeas relief. The deference rule 
     would have prevented the Federal courts from granting relief.

  These cases demonstrate that habeas corpus is still needed--and that 
injustices continue to occur. Without habeas, those injustices would be 
left to stand uncorrected.


                               conclusion

  Everyone agrees that there is a need to end the delays and that the 
current system just doesn't work right. But I also think everyone would 
agree that we should have a fair process--one that does not execute 
innocent people.
  We know that most prosecutors and most law enforcement officers are 
honorable. Most cases proceed fairly, and we can have confidence in the 
result.
  But occasionally, prosecutors or cops act in bad faith--and there are 
cases which have demonstrated that. And, as we all know, our judicial 
system can make mistakes--and has done so.
  The recent case of Kirk Bloodsworth is one example. Bloodsworth 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 
in prison. Subsequent DNA testing confirmed his innocence. Bloodsworth 
lost 9 years out of his life because of an error in our legal system. 
He was lucky to escape with his life.
  Mistakes do happen. Innocent people are convicted and sentenced to 
die.
  Habeas corpus has existed to correct such errors--and to ensure that 
there will never be another Leo Frank--that there will never be another 
innocent person--man who is executed.
  I urge my colleagues to support this amendment.
  I hope that the Senator from Utah, when he gets an opportunity, will 
respond to my question relating to the case I raise. I thank the Chair 
for the time.
  I yield the floor.
  Mr. HATCH. Mr. President, this chart, I think, says about everything 
that needs to be said on this. Everything that Senator Biden has said 
can be answered by the Specter-Hatch bill. These are the inmates on 
death row versus the actual executions. There were 2,976 inmates on 
death row as of January 1995. The yellow bar on the chart shows 281 
executions since 1977. There are multiple frivolous appeals in almost 
every one of these almost 3,000 death row cases. If they lose on one, 
they conjure up another one, and then they conjure up another one, and 
they conjure up another one, just like Andrews in Utah--18 years, 30 
appeals. Every one of them were frivolous; every one was denied. No 
question of guilt. No question of problems. No question he did the 
murders. Yet, it took 18 years. And every time he brought up a habeas 
corpus petition, the victims and their families had to relive the whole 
murder situation again. You wonder why people in this country are 
worried about the laws and do not believe in them.
  There is no finality, no way of solving these problems. It is a 
farce. Why is it? Because liberal judges--and I have to say active 
defense lawyers who are doing their jobs under a system that allows 
this charade to go on and on--continue to allow this to happen because 
they do not like the death penalty.
  I think we ought to face that death penalty straight up and down. If 
you have arguments against the death penalty, I understand that. I know 
there are two sides to it. I do not like it myself, except in the most 
heinous of cases. I would never use it unless it was a really heinous 
case, like the Andrews case, or like any number of other cases, like 
the Manson case. He was saved by the Furman case, the Supreme Court 
case where we had a temporary law on whether or not the death penalty 
is to be inflicted. There are many others you can talk about.
  Mr. President, I have to oppose this amendment. It is offered to 
modify the standard of habeas corpus reform that we have proposed in 
this antiterrorism [[Page S7846]] bill. Our present system of 
multilayered State and Federal and collateral appeal has resulted in 
enormous delays. I have just made the case between sentencing and 
judicial resolution as to whether the sentence was lawful, without any 
improvement in the quality of the adjudication. The resulting lack of 
finality saps public confidence in our criminal justice system and 
undermines the proper roles of the State and Federal Government. I know 
there are people here who believe that only the Federal courts tell the 
truth. That just is not true. State courts, in many respects, are just 
as good, if not better, than the Federal courts--in these areas, just 
as good. I get a little tired of the Federal courts being demeaned and 
maligned because, basically, people do not like the death penalty.
  A system incapable of enforcing legally imposed sentences cannot be 
called just and must be reformed. I mentioned in my home State of Utah, 
for example, the William Andrews case. He delayed imposition of a 
constitutionally imposed death sentence for 18 years, and we went 
through 30 appeals, and the survivors--I think there was one where they 
poured Drano down his throat. There were others, too, and they would 
drive pencils through their eardrums before killing them. This survivor 
had to be there each time and had to go through it each time, had to 
have it recollected each time. There was no question of guilt, no 
question of the sentence, and no question it was constitutional. Yet, 
it took 18 years and 30 appeals and millions of dollars to get done. He 
was not an innocent person seeking freedom from an illegal punishment. 
Rather, he committed a particularly heinous crime and simply wanted to 
frustrate the demands of justice.
  The Andrews case is hardly an isolated example. As I have said, as of 
January 1995 there were almost 3,000 people on death row. Yet the 
States have executed only 263 since 1973--38 last year. Now, Federal 
habeas corpus proceedings have become, in effect, a second round of 
appeals in which convicted criminals are afforded the opportunity to 
relitigate claims already considered and rejected by the State courts.
  The abuse of habeas corpus litigation, particularly in those cases 
involving lawfully imposed death sentences, has seriously eroded the 
public's confidence in our criminal justice system. It has drained our 
State criminal justice resources and has taken a dreadful toll on the 
victims' families and those who have to live through that every time 
there is a habeas petition found.
  The single most important provision contained in the habeas reform 
proposal in S. 735, the bill today, is the standard of review that this 
provision has. It determines the degree of deference the Federal court 
will give to the decisions of a State court.
  I notice the standard of review on the habeas proposals by the Biden 
staff-prepared poster. It says that Specter-Hatch requires Federal 
courts to defer to State courts in almost all cases, even if the State 
is wrong about the U.S. Constitution. That is absolutely false. The 
fact of the matter is, currently, Federal courts have virtual de novo 
review of a State court's legal determination. Under our change, 
Federal courts would be required to defer to the determination of State 
courts, unless the State court's decision was ``contrary to or involved 
in an unreasonable application of clearly established Federal laws as 
determined by the Supreme Court.'' I will read that again.

       An application for a writ of habeas corpus on behalf of a 
     person in custody pursuant to the judgment of a State court 
     shall not be granted with respect to any claim adjudicated on 
     the merits in a State court proceedings unless the 
     adjudication of that claim (1) resulted in a decision that 
     was contrary to or involved an unreasonable application of 
     clearly established Federal laws as determined by the Supreme 
     Court of the United States or (2) resulted in a decision that 
     was based on an unreasonable determination of the facts in 
     light of the evidence presented in the State court 
     proceeding.

  This is a wholly appropriate standard. It enables the Federal court 
to overturn State court positions that clearly contravene Federal law. 
It further allows the Federal courts to review State court decisions 
that improperly apply clearly established Federal law. The standard 
also ends the improper review of the State court decisions.
  After all, State courts are constrained to uphold the Constitution 
and faithfully apply Federal law as well. There is simply no reason 
that Federal courts should have the ability to virtually retry cases 
that have been properly adjudicated by our State courts. There is no 
reason to allow Federal courts to do that. If you talk to your State 
attorneys general, they will tell you that a review standard is the 
single most important provision of our bill. Meaningful reform will 
stop repeated assaults upon fair and valid State convictions through 
spurious petitions filed in the Federal courts. We cannot stop the 
spurious petitions without changing the standard under which these 
petitions are reviewed.
  If the Biden amendment passes, we are back to business as usual, 
except for some time constraints. Even then it is business as usual, 
because there will be repetitive frivolous appeals allowed by the 
liberal judges in almost every case brought to them where they can make 
any kind of a claim, regardless of whether it is legitimate or not.
  It happens all the time now. People are fed up to here with it and 
are sick of it. That is why this issue is so important. We have the 
balance of the procedural protections afforded to defendants against 
the need for maintaining the integrity of the finality of decisions of 
our State courts.
  Mr. President, I think that part of the disagreement we have with 
respect to the appropriate standard of review in habeas petitions 
involves differing visions as to the proper role of habeas review. 
Federal habeas review takes place only after there has been a trial.
  A direct review by the State appellate court, usually in intermediate 
court, another direct review by the State supreme court, then a third 
review or fourth review by the U.S. Supreme Court on a petition for 
certiorari. Thus we have a trial in at least three levels of appellate 
review, four different ways of protecting the rights of the defendant.
  In a capital case, the petitioner often files a clemency petition, so 
the State executive branch also has an opportunity. That is five: The 
trial, the initial appeal to the intermediate court, the State supreme 
court, the petition to the Federal Supreme Court, and the petition for 
clemency to the Governor. Five different protections for the defendant. 
Those are the direct appeals.
  Then we give them separate habeas appeals all the way up to the State 
courts again, all the way up to through the Federal court again.
  I notice the distinguished Senator from Pennsylvania was at an 
Intelligence Committee hearing and needs to get back there. So I will 
interrupt my remarks to grant him 5 minutes for his remarks on this 
very important issue.
  Mr. SPECTER. Mr. President, I thank my distinguished colleague, the 
chairman of the committee, for yielding to me at this time. I have 
worked with him intimately on this legislation.
  As he has noted and I noted earlier, we are in the midst of an 
Intelligence Committee meeting, a committee which I chair, so I 
appreciate his yielding to me for a few moments.
  I have sought recognition to support Senator Hatch and to oppose the 
amendment offered by the distinguished Senator from Delaware.
  This legislation is the result of a great deal of work over many, 
many years. It has been going on since the 1980's. As I commented 
earlier, a habeas corpus reform bill was passed by the U.S. Senate in 
1990, but it did not survive a conference with the House of 
Representatives.
  Legislation to reform habeas corpus has been considered and 
reconsidered each year for many years. The provision which is being 
debated now, I think, is a reasonable compromise. It is not my absolute 
preference on the kind of language that I would have chosen had I 
written the bill alone, but I think it is a reasonable compromise.
  Part of my concern is that when we change the standards it breeds a 
lot of new litigation to have interpretations of untested language. I 
think there is substantial latitude here for interpretation. 
[[Page S7847]] 
  Current law gives significant deference on questions of law and on 
factual determination to State court determinations. Under the current 
bill, I think there is still a good bit of latitude which the Federal 
judge will have when he makes a determination under a habeas corpus 
petition. There will be deference to the determinations of the State 
court, but the Federal judge will still have latitude to alter the 
State court decision in any case in which the Federal judge determines 
that it was contrary to or involved an unreasonable application of 
clearly established Federal law as determined by the Supreme Court of 
the United States, or resulted in a decision that was based on an 
unreasonable determination of the facts in light of the evidence 
presented in the State court proceedings.
  So there still is latitude for the Federal judge to disagree with the 
determination made by the State court judge. It is my sense, having 
litigated these cases as an assistant district attorney years ago, in 
the Federal and State courts, that where there is a miscarriage of 
justice, the Federal court can come to a different decision than was 
made in the State court proceedings.
  The language in the habeas corpus reform bill passed earlier this 
year by the House is even more restrictive than the language in the 
Senate bill. The House bill contains a provision that precludes the 
granting of a writ of habeas corpus unless the State court's decision 
is arbitrary. This is an even more restrictive standard than that in 
the Senate bill.
  Mr. President, in the legislation which is pending before us, there 
are provisions which I consider a step backward from the bill which 
passed the Senate in 1990, which would have eliminated the requirement 
of exhaustion of State court remedies.
  Were I to craft a bill myself, I would not require an exhaustion of 
State court remedies before the filing of a Federal habeas corpus 
petition because if that exhaustion requirement were not present there 
would be a much more orderly and a prompt disposition of these 
contested issues.
  Were exhaustion of State remedies not necessary, we would not have 
the interminable tennis match back and forth between the State and 
Federal courts as illustrated by the Pennsylvania case of Peoples 
versus Castille, which is illustrative of the complexity of bouncing 
back and forth between the courts.
  In the Peoples case, the defendant was convicted in the State court 
of aggravated assault. The conviction was reviewed and upheld by the 
Pennsylvania superior court, an intermediate appellate court. Then the 
case went to the Supreme Court of Pennsylvania on what is called an 
allocatur application, a request for review. The Supreme Court of 
Pennsylvania denied the petition for allocatur but the court may do so 
either considering the case on the merits or refusing to hear it as a 
discretionary matter.
  The defendant then sought a writ of habeas corpus from the U.S. 
District Court for the Eastern District of Pennsylvania, which sent the 
case back to the State court, holding that Peoples had failed to 
exhaust his available State remedies because it was unclear whether the 
Pennsylvania Supreme Court had considered the merits in denying 
allocatur.
  The case then went from the district court to the court of appeals 
which reversed the district court, saying that there had been an 
adequate exhaustion of State court remedies.
  The PRESIDING OFFICER. The time has expired.
  Mr. HATCH. I yield an additional 3 minutes.
  Mr. SPECTER. The State then went to the Supreme Court of the United 
States which hears few cases. Thousands apply and the year in which the 
court agreed to hear this appeal only about 150 cases were heard. They 
took this case. The Supreme Court of the United States then reversed 
the circuit court and sent the case back to the district court.
  Now, had there been no requirement for an exhaustion of State court 
remedies, the case could have had one hearing in the Federal court, all 
of the issues would have been decided, and I think decided about the 
same way if we did not have State court proceedings, bearing in mind 
that there had already been a full decision by a State appellate court 
which had upheld the judgment of conviction in the first instance.
  What we are really looking at with about 2,900 inmates on death row, 
there were only 38 cases in which the death penalty was carried out. It 
would be very much in the interests of the objective of swiftness and 
certainty to put an end to the long delays. Eliminating the requirement 
of exhaustion of State remedies would go a long way to achieving these 
goals.
  The State prosecutors and the attorneys general, however, disagree 
with my view as to what is in the public interest on the issue of 
exhaustion. We have the same objective. That is, to make the punishment 
swift and certain, to eliminate the long delays which are a detriment 
to law enforcement and undermine the deterrent effect of the death 
penalty, not to have the matter come to closure for the families of the 
victims, and not to harm the interests of the defendants, as 
interpreted by some international tribunals, which say it is cruel and 
unusual punishment to have the cases last longer than 6 to 8 years, an 
issue also raised by two of the current Justices of the Supreme Court, 
as I mentioned earlier today. I will not go into that because of the 
limitation of time.
  The issue of exhaustion of State remedies has been eliminated, 
however, because this bill does not abolish to exhaustion requirement. 
Unlie the resolution of this issue in the 1990 legislation, which 
passed the Senate, which eliminated the requirement of exhaustion of 
State remedies, that provision is not in this bill.
  I refer to that to illustrate how uniformity and consensus cannot be 
achieved on these difficult issues, and different people will have 
different views. But what we come down to at bottom in this legislation 
that is currently crafted, I think, is a realistic compromise. I think 
defendants' rights are protected. There are increased protections in 
this legislation with the appointment of counsel. We have the 
requirement that there are timetables and limitations periods so the 
defendants' rights, the States rights, and the victims' rights are all 
protected.
  I think it is a carefully crafted compromise which ought to be 
enacted to promote the interests of all parties involved. That is why I 
urge my colleagues to reject the amendment offered by the distinguished 
Senator from Delaware on this state of the record.
  I thank my colleague for yielding to me at this time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my colleague. I have enjoyed 
working with him on this Specter-Hatch habeas corpus reform. Without 
him I do not think we would be nearly as far along as we are, so I want 
to personally thank him for the efforts he has put forward.
  Let me get back to what I was saying. Look at all the reviews these 
cases have: The trial, the direct review to the intermediate court, the 
direct review to the State supreme court, the direct review to the 
Supreme Court of the United States of America, petition to the Governor 
for clemency.
  But that is not the end. In virtually every State a postconviction 
collateral proceeding exists. In other words, the petitioner can file a 
habeas corpus petition in State court. The petition is routinely 
subject to appellate review by an intermediate court and the State 
supreme court. The prisoner then may file a second petition in the U.S. 
Supreme Court and may also, of course, seek a second review of that by 
the Governor. So after conviction we have at least six levels of review 
by State courts, two rounds of review at least in capital cases by the 
State executive.
  Contrary to the impression that may be left by some of my colleagues 
on the other side of this issue, Federal habeas review does not take 
place until well after conviction and numerous rounds of direct and 
collateral review.
  The Supreme Court has clearly held in Goeke versus Branch that habeas 
review is not an essential prerequisite to conviction. Indeed, this 
very term the Supreme Court reaffirmed that principle that the 
Constitution does not even require direct review as a prerequisite for 
a valid conviction, and that is the Goeke case. [[Page S7848]] 
  Now that we have the proper context for this debate, let us look at 
the proposed standard again. Under the standard contained in S. 735, 
Federal courts would be required to defer to the determinations of 
State courts unless the State court's decision was ``contrary to or 
involved an unreasonable application of clearly established Federal law 
as determined by the Supreme Court.''
  That is a wholly appropriate standard. It enables the Federal court 
to overturn State court decisions that clearly contravene Federal law. 
Indeed, this standard essentially gives the Federal court the authority 
to review de novo whether the State court decided the claim in 
contravention of Federal law.
  Moreover, the Federal standard, this review standard proposed in S. 
735, allows the Federal court to review State court decisions that 
improperly apply clearly established Federal law. In other words, if 
the State court unreasonably applied Federal law its determination is 
subject to review by the Federal courts.
  What does this mean? It means that if the State court reasonably 
applied Federal law, its decision must be upheld. Why is that a 
problematic standard? After all, Federal habeas review exists to 
correct fundamental defects in the law. If the State court has 
reasonably applied Federal law it is hard to say that a fundamental 
defect exists.
  The Supreme Court in Harlow versus Fitzgerald has held that if the 
police officer's conduct was reasonable, no claim for damages under 
Bivens versus Six Unknown Agents can be maintained.
  In Leon versus United States, the Supreme Court held if the police 
officer's conduct in conducting a search was reasonable, no fourth 
amendment violation ensues or would obtain, and the court could not 
order suppression of the evidence obtained as a result of the search.
  The Supreme Court has repeatedly endorsed the principle that no 
remedy is available where the Government acts reasonably. Why, then, 
given this preference for reasonableness in the law, should we empower 
a Federal court to reverse a State court's reasonable application of 
Federal law to the facts? If we give that power that Senator Biden will 
give, we have hundreds of judges who do not like the death penalty, who 
are just going to give repeated habeas corpus reviews any time some 
clever defense lawyer demands it--which is exactly what we have today.
  Our proposed standard simply ends the improper review of State court 
decisions. After all, State courts are required to uphold the 
Constitution and to faithfully apply Federal law so there is no reason 
for what the distinguished Senator from Delaware is arguing for.
  He does not believe in the death penalty. I understand that. I 
respect him for that. But the arguments against meaningful habeas 
reform, like we have in this bill, are in reality arguments against the 
death penalty. If that is so, then let us debate the efficacy of the 
death penalty. Let us not continue frivolous appeal after frivolous 
appeal at a cost of billions of dollars in this society, just because 
we do not like the death penalty. Let us decide whether death is the 
appropriate sanction for people like those who murdered 168 individuals 
in Oklahoma City, for whom I am wearing this memorial set of ribbons 
pinned on me by the daughter of one of the victims, somebody, I have to 
say, by whom I was very moved.
  I am prepared to debate the point on whether or not the death penalty 
is an appropriate penalty. But let us not disguise the argument under 
the guise of phony habeas corpus.
  The second argument I think my friends are making is that they 
fundamentally distrust the decisions of the State courts. It is an 
insult to all of the wonderful, fine State court judges around this 
country. They cannot show cases that literally show that the State 
courts cannot do the job.
  Let me just give an illustration. We have heard a lot about the Rubin 
Carter case, ``Hurricane'' Carter. The fact of the matter is we have 
heard all kinds of arguments relating to that case.
  He is supposed to be an innocent individual, falsely held in prison 
despite his innocence. As a trial lawyer, I know that you should always 
be suspicious of alleged evidence offered at the last minute by your 
opponents. And this Carter case is no different.
  Here, at the last minute, we hear about still one more apocryphal, 
highly disputed case on which there is absolutely no agreement 
whatsoever about the guilt or innocence of the defendant.
  First we are told that Carter was falsely convicted in New York--
well, he was convicted for murder--twice, but in New Jersey. Then we 
are told that he served 28 months, when, in fact, he served for nearly 
20 years. And now, we are told, without any supporting proof, that he 
is innocent of the very murders that two juries have found--beyond a 
reasonable doubt--that he committed. And we are supposed to believe 
these unsupported allegations of innocence--allegations made by 
Senators who don't even know what State Rubin Carter was tried in?
  These allegations are directly disputed by the prosecutors in New 
Jersey who know this case best. They are directly disputed by every 
jury and every court that has reviewed this case. And we should 
remember that it was Judge Lee Sarokin--
 a very liberal judge--who was the district judge that released Rubin 
Carter, after nearly 20 years in jail. And he released him not because 
he was innocent, but because of a procedural objection to the 
composition of the jury. An objection raised 20 years after the fact.

  The Carter case does not show the value of Federal habeas corpus--the 
Carter case is a fresh indictment of the current system. It shows more 
clearly than ever, that if you can get your habeas petition before the 
right liberal Federal judge, you can get out of State prison, 
regardless of your innocence or guilt.
  Here is what the New York Times--one of the most liberal papers in 
our Nation--said about Judge Sarokin's decision in the Carter case: it 
said that the judge's decision was ``flawed by excessive lecturing on 
the need for `compassion' and the injustice of a possible third trial'' 
for Rubin Carter. Well, I submit that the Federal courts are not 
empaneled to provide compassion, they are there to provide justice. In 
the area of habeas, they are there to provide a constitutional back-up 
for constitutional issues. The Hatch/Dole bill preserves that function 
of the Federal courts.
  The floor of the U.S. Senate is not the place to determine the guilt 
or innocence of persons involved in highly disputed cases. That is what 
hearings are for.
  Where were these defenders of the alleged innocence of this three-
time murderer when the Judiciary Committee held hearing after hearing 
on the specific question of whether habeas corpus was needed to protect 
innocent prisoners? They were nowhere.
  I have asked witness after witness to show me a case--even one case--
where Federal habeas corpus has been used to free an innocent man or 
woman, and not one case has been cited. Specifically, I asked Chief 
Judge Charles Clark of the fifth circuit if he could name even one case 
that he had ever seen in which Federal habeas corpus had resulted in 
the release or retrial of an innocent man. And he could not. Yet he was 
the chief judge of the largest circuit in the Nation--running from 
Texas to Florida in those days. Not one case.
  So forgive me if I am a bit reluctant to accept today the unsupported 
allegations made on the Senate floor as to the alleged innocence of 
prisoners who have long been held to be guilty of serious crimes.`
  It should also be pointed out that the Carter case rebuts entirely 
the point that the Senator from Delaware has made several times to the 
effect that habeas petitions only result in retrials--they do not 
result in release. So he says. But there was no retrial for Rubin 
Carter--nor could there be after 20 years. He was released outright--
despite the jury verdict that he murdered three individuals.
  (Ms. SNOWE assumed the chair.)
  Mr. HATCH. We can go on and on. There are a number of others. 
Virtually every case brought up--I do not know the Garrett case, but 
every case brought up can be distinguished.
  The Frank case, cited by Senator Biden, involved a lynching. There 
was nothing State or Federal corrective process could have done to help 
Mr. Frank. It was wrong that they lynched [[Page S7849]] him, but it 
happened. That case, decided in 1915, occurred at a very different time 
and under very different circumstances. That is not applicable to this 
debate. We can go on and on.
  Madam President, this is the most important stage in criminal law in 
the last 30 years, and maybe in our lifetime. This is a change to stop 
the incessant frivolous appeals that are eating our country alive. We 
have the chance to really, really do something about this while at the 
same time protecting constitutional rights and civil liberties for 
everybody, and doing it in an appropriate, legally sound manner. This 
amendment will do that.
  I hope we will vote down all of these amendments that we have heard 
debated here today.
  I am prepared to yield back the remainder of my time.
  I yield the remainder of my time.
  I ask unanimous consent that the rollcall vote on the motion to table 
the Biden amendment No. 1253 be the standard 15-minute vote and that 
all remaining stacked votes be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Madam President, I ask unanimous consent--I have the 
approval of Senator Biden to do this--on behalf of myself and Senator 
Biden, that all action on amendment No. 1241 be vitiated, the Heflin 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Madam President, do we have rollcall votes ordered on 
every one of the amendments?
  The PRESIDING OFFICER. We have rollcall votes ordered on the first 
three with the exception of 1224.
  Mr. HATCH. I move to table the Biden amendment, and ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. HATCH. Madam President, a rollcall vote is ordered on one which 
is not a motion to table, and the rest are motions to table?
  The PRESIDING OFFICER. The Senator is correct.


               Vote on Motion to Table Amendment No. 1253

  The PRESIDING OFFICER. The question is on agreeing to the motion of 
the Senator from Utah to lay on the table amendment No. 1253 offered by 
the Senator from Delaware [Mr. Biden]. On this question, the yeas and 
nays have been ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 65, nays 34, as follows:

                      [Rollcall Vote No. 238 Leg.]

                                YEAS--65

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Brown
     Bryan
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pressler
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--34

     Akaka
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bumpers
     Daschle
     Dodd
     Dorgan
     Feingold
     Glenn
     Harkin
     Heflin
     Hollings
     Inouye
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pell
     Pryor
     Sarbanes
     Simon
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So, the motion to lay on the table the amendment (No. 1253) was 
agreed to.
        vote on motion to table amendment no. 1245, as modified

  The PRESIDING OFFICER. The question now occurs on agreeing to the 
motion to table amendment No. 1245, as modified, offered by the Senator 
from Michigan, Senator Levin. The yeas and nays have been ordered. The 
clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 62, nays 37, as follows:

                      [Rollcall Vote No. 239 Leg.]

                                YEAS--62

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Breaux
     Brown
     Burns
     Byrd
     Campbell
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Inhofe
     Johnston
     Kassebaum
     Kempthorne
     Kerrey
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pressler
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--37

     Akaka
     Biden
     Bingaman
     Boxer
     Bradley
     Bryan
     Bumpers
     Chafee
     Daschle
     Dodd
     Dorgan
     Feingold
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pell
     Pryor
     Sarbanes
     Simon
     Specter
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the motion to lay on the table the amendment (No. 1245), as 
modified, was agreed to.
                       vote on amendment no. 1211

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
offered by the Senator from Arizona, Senator Kyl.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 38, nays 61, as follows:

                      [Rollcall Vote No. 240 Leg.]

                                YEAS--38

     Ashcroft
     Brown
     Burns
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     Dole
     Domenici
     Faircloth
     Gramm
     Grams
     Grassley
     Gregg
     Helms
     Hutchison
     Inhofe
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Santorum
     Shelby
     Simpson
     Smith
     Stevens
     Thomas
     Thurmond
     Warner

                                NAYS--61

     Abraham
     Akaka
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Chafee
     Cohen
     Daschle
     DeWine
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Harkin
     Hatch
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Simon
     Snowe
     Specter
     Thompson
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the amendment (No. 1211) was rejected.
               Vote On Motion To Table Amendment No. 1224

  The PRESIDING OFFICER. The question now occurs on the motion to table 
amendment No. 1224, offered by the Senator from Delaware [Mr. Biden]. 
The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent. [[Page S7850]] 
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced, yeas 53, nays 46, as follows:

                      [Rollcall Vote No. 241 Leg.]

                                YEAS--53

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Brown
     Burns
     Byrd
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Feinstein
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Inhofe
     Kempthorne
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Reid
     Rockefeller
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--46

     Akaka
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Chafee
     Cohen
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Ford
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Robb
     Sarbanes
     Simon
     Snowe
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the motion to lay on the table the amendment (No. 1224) was agreed 
to.
  Mr. HATCH. Madam President, I move to reconsider the vote by which 
the motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Without objection, the motion to lay on the 
table is agreed to.
  Mr. HATCH. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Madam President, I ask unanimous consent that the quorum 
call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.