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COMPREHENSIVE TERRORISM PREVENTION ACT


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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)

Text of this article available as: TXT PDF [Pages S7803-S7880] COMPREHENSIVE TERRORISM PREVENTION ACT The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report. The legislative clerk read as follows: A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes. The Senate resumed consideration of the bill. Pending: Hatch-Dole amendment No. 1199, in the nature of a substitute. Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. [[Page S7804]] Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States. Mr. HATCH. Will my colleague yield? Mr. SPECTER. I do. Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it. We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should. The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society. So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend. We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners) Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217. Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete title 6, subtitle A, and insert the following: Subtitle A--Collateral Review in Federal Criminal Cases SEC. 601. FILING DEADLINES. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth paragraphs; and (2) by adding at the end the following new paragraphs: ``A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right. ``A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed. ``A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless-- ``(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense. ``Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion. [[Page S7806]] ``The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari. ``A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains? The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds. Mr. BIDEN. I will reserve the remainder of my time. I yield the floor. Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases. Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a [[Page S7807]] reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary. This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat: [I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings. In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as Federal, court. A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, ``swift, certain, and severe.'' Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court. As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted. This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system. Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now. Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague. I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them. So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment. First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people. I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record. There being no objection, the letter was ordered to be printed in the Record, as follows: State of Oklahoma, District Attorney, Oklahoma City, OK, May 24, 1995. Senator Orrin G. Hatch, Chairman, Judiciary, Dirksen Senate Office, Washington, DC. Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court. There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities. The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice. Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include: Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions. As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required. Respectfully, Robert H. Macy, District Attorney. Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society [[Page S7808]] today still sitting on death row almost 50 years later. So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur. Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment. Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over. Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well? Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment. Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions. Mr. President, I move to table the amendment and ask for the yeas and nays. The PRESIDING OFFICER. Do Senators yield back their time? Mr. HATCH. I yield back the time. Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time. Mr. HATCH. I yield back my time. The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered. The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll. Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent. I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote ``yea.'' Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote? The result was announced--yeas 67, nays 28, as follows: [Rollcall Vote No. 237 Leg.] YEAS--67 Abraham Ashcroft Baucus Bennett Bingaman Bond Breaux Brown Bryan Burns Byrd Campbell Chafee Coats Cochran Cohen Coverdell Craig D'Amato DeWine Dole Domenici Exon Faircloth Feinstein Ford Frist Gorton Graham Grams Grassley Hatch Heflin Helms Hollings Hutchison Inhofe Jeffords Johnston Kassebaum Kempthorne Kerrey Kyl Lieberman Lott Lugar Mack McCain McConnell Murkowski Nickles Nunn Pressler Pryor Reid Robb Rockefeller Roth Shelby Smith Snowe Specter Stevens Thomas Thompson Thurmond Warner NAYS--28 Akaka Biden Boxer Bradley Bumpers Daschle Dodd Dorgan Feingold Glenn Harkin Hatfield Inouye Kennedy Kerry Kohl Lautenberg Leahy Levin Mikulski Moseley-Braun Moynihan Murray Packwood Pell Sarbanes Simon Wellstone NOT VOTING--5 Conrad Gramm Gregg Santorum Simpson So the motion to table the amendment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. (The foregoing tally has been changed to reflect the above order.) Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill. At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible. It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus. The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City [[Page S7809]] bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners. The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy. When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the ``Great Writ.'' Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years. In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following: Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence. But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country. A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial. As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial. This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness. In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death. At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, ``swift justice demands more than just swiftness.'' Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an ``unreasonable application of Federal law.'' No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated. This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much. I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly. A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases. Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so. Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions. The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution. This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can. The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it. I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate. (Mr. KYL assumed the chair.) Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second. Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side. Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment. Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided. Mr. DOLE. Mr. President, I make that request. The PRESIDING OFFICER. Without objection, it is so ordered. Amendment No. 1226 to Amendment No. 1199 (Purpose: To amend the bill with respect to requiring counsel for federal habeas proceedings) Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The bill clerk read as follows: The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199. Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]] The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete from page 106, line 20 through all of page 125 and insert the following: ``(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.''. SEC. 605. SECTION 2255 AMENDMENTS. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth undesignated paragraphs; and (2) by adding at the end the following new undesignated paragraphs: ``A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. ``A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- ``(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ``(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.''. SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. (a) Conforming Amendment to Section 2244(a).--Section 2244(a) of title 28, United States Code, is amended by striking ``and the petition'' and all that follows through ``by such inquiry.'' and inserting ``, except as provided in section 2255.''. (b) Limits on Second or Successive Applications.--Section 2244(b) of title 28, United States Code, is amended to read as follows: ``(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. ``(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- ``(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ``(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. ``(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. ``(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. ``(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. ``(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. ``(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. SEC. 607. DEATH PENALTY LITIGATION PROCEDURES. (a) Addition of Chapter to Title 28, United States Code.-- Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter: ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES ``Sec. ``2261. Prisoners in State custody subject to capital

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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)

Text of this article available as: TXT PDF [Pages S7803-S7880] COMPREHENSIVE TERRORISM PREVENTION ACT The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report. The legislative clerk read as follows: A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes. The Senate resumed consideration of the bill. Pending: Hatch-Dole amendment No. 1199, in the nature of a substitute. Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. [[Page S7804]] Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States. Mr. HATCH. Will my colleague yield? Mr. SPECTER. I do. Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it. We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should. The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society. So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend. We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners) Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217. Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete title 6, subtitle A, and insert the following: Subtitle A--Collateral Review in Federal Criminal Cases SEC. 601. FILING DEADLINES. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth paragraphs; and (2) by adding at the end the following new paragraphs: ``A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right. ``A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed. ``A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless-- ``(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense. ``Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion. [[Page S7806]] ``The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari. ``A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains? The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds. Mr. BIDEN. I will reserve the remainder of my time. I yield the floor. Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases. Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a [[Page S7807]] reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary. This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat: [I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings. In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as Federal, court. A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, ``swift, certain, and severe.'' Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court. As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted. This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system. Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now. Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague. I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them. So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment. First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people. I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record. There being no objection, the letter was ordered to be printed in the Record, as follows: State of Oklahoma, District Attorney, Oklahoma City, OK, May 24, 1995. Senator Orrin G. Hatch, Chairman, Judiciary, Dirksen Senate Office, Washington, DC. Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court. There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities. The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice. Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include: Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions. As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required. Respectfully, Robert H. Macy, District Attorney. Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society [[Page S7808]] today still sitting on death row almost 50 years later. So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur. Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment. Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over. Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well? Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment. Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions. Mr. President, I move to table the amendment and ask for the yeas and nays. The PRESIDING OFFICER. Do Senators yield back their time? Mr. HATCH. I yield back the time. Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time. Mr. HATCH. I yield back my time. The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered. The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll. Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent. I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote ``yea.'' Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote? The result was announced--yeas 67, nays 28, as follows: [Rollcall Vote No. 237 Leg.] YEAS--67 Abraham Ashcroft Baucus Bennett Bingaman Bond Breaux Brown Bryan Burns Byrd Campbell Chafee Coats Cochran Cohen Coverdell Craig D'Amato DeWine Dole Domenici Exon Faircloth Feinstein Ford Frist Gorton Graham Grams Grassley Hatch Heflin Helms Hollings Hutchison Inhofe Jeffords Johnston Kassebaum Kempthorne Kerrey Kyl Lieberman Lott Lugar Mack McCain McConnell Murkowski Nickles Nunn Pressler Pryor Reid Robb Rockefeller Roth Shelby Smith Snowe Specter Stevens Thomas Thompson Thurmond Warner NAYS--28 Akaka Biden Boxer Bradley Bumpers Daschle Dodd Dorgan Feingold Glenn Harkin Hatfield Inouye Kennedy Kerry Kohl Lautenberg Leahy Levin Mikulski Moseley-Braun Moynihan Murray Packwood Pell Sarbanes Simon Wellstone NOT VOTING--5 Conrad Gramm Gregg Santorum Simpson So the motion to table the amendment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. (The foregoing tally has been changed to reflect the above order.) Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill. At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible. It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus. The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City [[Page S7809]] bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners. The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy. When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the ``Great Writ.'' Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years. In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following: Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence. But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country. A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial. As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial. This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness. In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death. At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, ``swift justice demands more than just swiftness.'' Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an ``unreasonable application of Federal law.'' No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated. This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much. I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly. A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases. Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so. Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions. The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution. This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can. The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it. I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate. (Mr. KYL assumed the chair.) Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second. Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side. Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment. Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided. Mr. DOLE. Mr. President, I make that request. The PRESIDING OFFICER. Without objection, it is so ordered. Amendment No. 1226 to Amendment No. 1199 (Purpose: To amend the bill with respect to requiring counsel for federal habeas proceedings) Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The bill clerk read as follows: The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199. Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]] The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete from page 106, line 20 through all of page 125 and insert the following: ``(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.''. SEC. 605. SECTION 2255 AMENDMENTS. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth undesignated paragraphs; and (2) by adding at the end the following new undesignated paragraphs: ``A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. ``A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- ``(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ``(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.''. SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. (a) Conforming Amendment to Section 2244(a).--Section 2244(a) of title 28, United States Code, is amended by striking ``and the petition'' and all that follows through ``by such inquiry.'' and inserting ``, except as provided in section 2255.''. (b) Limits on Second or Successive Applications.--Section 2244(b) of title 28, United States Code, is amended to read as follows: ``(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. ``(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- ``(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ``(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. ``(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. ``(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. ``(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. ``(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. ``(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. SEC. 607. DEATH PENALTY LITIGATION PROCEDURES. (a) Addition of Chapter to Title 28, United States Code.-- Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter: ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES ``Sec. ``2261. Prisoners in State custody subject t

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COMPREHENSIVE TERRORISM PREVENTION ACT


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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)

Text of this article available as: TXT PDF [Pages S7803-S7880] COMPREHENSIVE TERRORISM PREVENTION ACT The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report. The legislative clerk read as follows: A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes. The Senate resumed consideration of the bill. Pending: Hatch-Dole amendment No. 1199, in the nature of a substitute. Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. [[Page S7804]] Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States. Mr. HATCH. Will my colleague yield? Mr. SPECTER. I do. Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it. We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should. The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society. So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend. We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners) Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217. Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete title 6, subtitle A, and insert the following: Subtitle A--Collateral Review in Federal Criminal Cases SEC. 601. FILING DEADLINES. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth paragraphs; and (2) by adding at the end the following new paragraphs: ``A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right. ``A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed. ``A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless-- ``(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense. ``Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion. [[Page S7806]] ``The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari. ``A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains? The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds. Mr. BIDEN. I will reserve the remainder of my time. I yield the floor. Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases. Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a [[Page S7807]] reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary. This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat: [I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings. In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as Federal, court. A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, ``swift, certain, and severe.'' Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court. As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted. This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system. Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now. Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague. I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them. So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment. First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people. I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record. There being no objection, the letter was ordered to be printed in the Record, as follows: State of Oklahoma, District Attorney, Oklahoma City, OK, May 24, 1995. Senator Orrin G. Hatch, Chairman, Judiciary, Dirksen Senate Office, Washington, DC. Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court. There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities. The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice. Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include: Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions. As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required. Respectfully, Robert H. Macy, District Attorney. Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society [[Page S7808]] today still sitting on death row almost 50 years later. So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur. Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment. Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over. Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well? Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment. Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions. Mr. President, I move to table the amendment and ask for the yeas and nays. The PRESIDING OFFICER. Do Senators yield back their time? Mr. HATCH. I yield back the time. Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time. Mr. HATCH. I yield back my time. The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered. The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll. Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent. I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote ``yea.'' Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote? The result was announced--yeas 67, nays 28, as follows: [Rollcall Vote No. 237 Leg.] YEAS--67 Abraham Ashcroft Baucus Bennett Bingaman Bond Breaux Brown Bryan Burns Byrd Campbell Chafee Coats Cochran Cohen Coverdell Craig D'Amato DeWine Dole Domenici Exon Faircloth Feinstein Ford Frist Gorton Graham Grams Grassley Hatch Heflin Helms Hollings Hutchison Inhofe Jeffords Johnston Kassebaum Kempthorne Kerrey Kyl Lieberman Lott Lugar Mack McCain McConnell Murkowski Nickles Nunn Pressler Pryor Reid Robb Rockefeller Roth Shelby Smith Snowe Specter Stevens Thomas Thompson Thurmond Warner NAYS--28 Akaka Biden Boxer Bradley Bumpers Daschle Dodd Dorgan Feingold Glenn Harkin Hatfield Inouye Kennedy Kerry Kohl Lautenberg Leahy Levin Mikulski Moseley-Braun Moynihan Murray Packwood Pell Sarbanes Simon Wellstone NOT VOTING--5 Conrad Gramm Gregg Santorum Simpson So the motion to table the amendment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. (The foregoing tally has been changed to reflect the above order.) Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill. At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible. It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus. The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City [[Page S7809]] bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners. The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy. When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the ``Great Writ.'' Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years. In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following: Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence. But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country. A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial. As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial. This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness. In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death. At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, ``swift justice demands more than just swiftness.'' Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an ``unreasonable application of Federal law.'' No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated. This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much. I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly. A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases. Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so. Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions. The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution. This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can. The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it. I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate. (Mr. KYL assumed the chair.) Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second. Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side. Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment. Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided. Mr. DOLE. Mr. President, I make that request. The PRESIDING OFFICER. Without objection, it is so ordered. Amendment No. 1226 to Amendment No. 1199 (Purpose: To amend the bill with respect to requiring counsel for federal habeas proceedings) Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The bill clerk read as follows: The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199. Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]] The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete from page 106, line 20 through all of page 125 and insert the following: ``(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.''. SEC. 605. SECTION 2255 AMENDMENTS. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth undesignated paragraphs; and (2) by adding at the end the following new undesignated paragraphs: ``A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. ``A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- ``(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ``(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.''. SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. (a) Conforming Amendment to Section 2244(a).--Section 2244(a) of title 28, United States Code, is amended by striking ``and the petition'' and all that follows through ``by such inquiry.'' and inserting ``, except as provided in section 2255.''. (b) Limits on Second or Successive Applications.--Section 2244(b) of title 28, United States Code, is amended to read as follows: ``(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. ``(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- ``(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ``(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. ``(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. ``(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. ``(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. ``(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. ``(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. SEC. 607. DEATH PENALTY LITIGATION PROCEDURES. (a) Addition of Chapter to Title 28, United States Code.-- Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter: ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES ``Sec. ``2261. Prisoners in State custody subject to capital

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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)

Text of this article available as: TXT PDF [Pages S7803-S7880] COMPREHENSIVE TERRORISM PREVENTION ACT The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report. The legislative clerk read as follows: A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes. The Senate resumed consideration of the bill. Pending: Hatch-Dole amendment No. 1199, in the nature of a substitute. Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. [[Page S7804]] Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States. Mr. HATCH. Will my colleague yield? Mr. SPECTER. I do. Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it. We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should. The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society. So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend. We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners) Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217. Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete title 6, subtitle A, and insert the following: Subtitle A--Collateral Review in Federal Criminal Cases SEC. 601. FILING DEADLINES. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth paragraphs; and (2) by adding at the end the following new paragraphs: ``A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right. ``A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed. ``A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless-- ``(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense. ``Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion. [[Page S7806]] ``The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari. ``A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains? The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds. Mr. BIDEN. I will reserve the remainder of my time. I yield the floor. Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases. Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a [[Page S7807]] reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary. This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat: [I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings. In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as Federal, court. A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, ``swift, certain, and severe.'' Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court. As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted. This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system. Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now. Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague. I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them. So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment. First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people. I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record. There being no objection, the letter was ordered to be printed in the Record, as follows: State of Oklahoma, District Attorney, Oklahoma City, OK, May 24, 1995. Senator Orrin G. Hatch, Chairman, Judiciary, Dirksen Senate Office, Washington, DC. Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court. There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities. The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice. Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include: Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions. As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required. Respectfully, Robert H. Macy, District Attorney. Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society [[Page S7808]] today still sitting on death row almost 50 years later. So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur. Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment. Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over. Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well? Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment. Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions. Mr. President, I move to table the amendment and ask for the yeas and nays. The PRESIDING OFFICER. Do Senators yield back their time? Mr. HATCH. I yield back the time. Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time. Mr. HATCH. I yield back my time. The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered. The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll. Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent. I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote ``yea.'' Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote? The result was announced--yeas 67, nays 28, as follows: [Rollcall Vote No. 237 Leg.] YEAS--67 Abraham Ashcroft Baucus Bennett Bingaman Bond Breaux Brown Bryan Burns Byrd Campbell Chafee Coats Cochran Cohen Coverdell Craig D'Amato DeWine Dole Domenici Exon Faircloth Feinstein Ford Frist Gorton Graham Grams Grassley Hatch Heflin Helms Hollings Hutchison Inhofe Jeffords Johnston Kassebaum Kempthorne Kerrey Kyl Lieberman Lott Lugar Mack McCain McConnell Murkowski Nickles Nunn Pressler Pryor Reid Robb Rockefeller Roth Shelby Smith Snowe Specter Stevens Thomas Thompson Thurmond Warner NAYS--28 Akaka Biden Boxer Bradley Bumpers Daschle Dodd Dorgan Feingold Glenn Harkin Hatfield Inouye Kennedy Kerry Kohl Lautenberg Leahy Levin Mikulski Moseley-Braun Moynihan Murray Packwood Pell Sarbanes Simon Wellstone NOT VOTING--5 Conrad Gramm Gregg Santorum Simpson So the motion to table the amendment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. (The foregoing tally has been changed to reflect the above order.) Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill. At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible. It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus. The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City [[Page S7809]] bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners. The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy. When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the ``Great Writ.'' Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years. In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following: Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence. But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country. A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial. As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial. This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness. In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death. At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, ``swift justice demands more than just swiftness.'' Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an ``unreasonable application of Federal law.'' No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated. This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much. I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly. A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases. Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so. Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions. The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution. This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can. The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it. I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate. (Mr. KYL assumed the chair.) Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second. Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side. Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment. Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided. Mr. DOLE. Mr. President, I make that request. The PRESIDING OFFICER. Without objection, it is so ordered. Amendment No. 1226 to Amendment No. 1199 (Purpose: To amend the bill with respect to requiring counsel for federal habeas proceedings) Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The bill clerk read as follows: The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199. Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]] The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete from page 106, line 20 through all of page 125 and insert the following: ``(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.''. SEC. 605. SECTION 2255 AMENDMENTS. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth undesignated paragraphs; and (2) by adding at the end the following new undesignated paragraphs: ``A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. ``A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- ``(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ``(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.''. SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. (a) Conforming Amendment to Section 2244(a).--Section 2244(a) of title 28, United States Code, is amended by striking ``and the petition'' and all that follows through ``by such inquiry.'' and inserting ``, except as provided in section 2255.''. (b) Limits on Second or Successive Applications.--Section 2244(b) of title 28, United States Code, is amended to read as follows: ``(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. ``(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- ``(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ``(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. ``(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. ``(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. ``(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. ``(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. ``(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. SEC. 607. DEATH PENALTY LITIGATION PROCEDURES. (a) Addition of Chapter to Title 28, United States Code.-- Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter: ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES ``Sec. ``2261. Prisoners in State custody subject t

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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)

Text of this article available as: TXT PDF [Pages S7803-S7880] COMPREHENSIVE TERRORISM PREVENTION ACT The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report. The legislative clerk read as follows: A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes. The Senate resumed consideration of the bill. Pending: Hatch-Dole amendment No. 1199, in the nature of a substitute. Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. [[Page S7804]] Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States. Mr. HATCH. Will my colleague yield? Mr. SPECTER. I do. Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it. We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should. The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society. So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend. We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners) Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217. Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete title 6, subtitle A, and insert the following: Subtitle A--Collateral Review in Federal Criminal Cases SEC. 601. FILING DEADLINES. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth paragraphs; and (2) by adding at the end the following new paragraphs: ``A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right. ``A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed. ``A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless-- ``(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense. ``Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion. [[Page S7806]] ``The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari. ``A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains? The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds. Mr. BIDEN. I will reserve the remainder of my time. I yield the floor. Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases. Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a [[Page S7807]] reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary. This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat: [I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings. In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as Federal, court. A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, ``swift, certain, and severe.'' Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court. As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted. This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system. Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now. Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague. I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them. So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment. First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people. I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record. There being no objection, the letter was ordered to be printed in the Record, as follows: State of Oklahoma, District Attorney, Oklahoma City, OK, May 24, 1995. Senator Orrin G. Hatch, Chairman, Judiciary, Dirksen Senate Office, Washington, DC. Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court. There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities. The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice. Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include: Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions. As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required. Respectfully, Robert H. Macy, District Attorney. Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society [[Page S7808]] today still sitting on death row almost 50 years later. So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur. Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment. Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over. Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well? Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment. Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions. Mr. President, I move to table the amendment and ask for the yeas and nays. The PRESIDING OFFICER. Do Senators yield back their time? Mr. HATCH. I yield back the time. Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time. Mr. HATCH. I yield back my time. The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered. The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll. Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent. I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote ``yea.'' Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote? The result was announced--yeas 67, nays 28, as follows: [Rollcall Vote No. 237 Leg.] YEAS--67 Abraham Ashcroft Baucus Bennett Bingaman Bond Breaux Brown Bryan Burns Byrd Campbell Chafee Coats Cochran Cohen Coverdell Craig D'Amato DeWine Dole Domenici Exon Faircloth Feinstein Ford Frist Gorton Graham Grams Grassley Hatch Heflin Helms Hollings Hutchison Inhofe Jeffords Johnston Kassebaum Kempthorne Kerrey Kyl Lieberman Lott Lugar Mack McCain McConnell Murkowski Nickles Nunn Pressler Pryor Reid Robb Rockefeller Roth Shelby Smith Snowe Specter Stevens Thomas Thompson Thurmond Warner NAYS--28 Akaka Biden Boxer Bradley Bumpers Daschle Dodd Dorgan Feingold Glenn Harkin Hatfield Inouye Kennedy Kerry Kohl Lautenberg Leahy Levin Mikulski Moseley-Braun Moynihan Murray Packwood Pell Sarbanes Simon Wellstone NOT VOTING--5 Conrad Gramm Gregg Santorum Simpson So the motion to table the amendment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. (The foregoing tally has been changed to reflect the above order.) Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill. At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible. It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus. The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City [[Page S7809]] bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners. The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy. When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the ``Great Writ.'' Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years. In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following: Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence. But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country. A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial. As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial. This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness. In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death. At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, ``swift justice demands more than just swiftness.'' Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an ``unreasonable application of Federal law.'' No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated. This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much. I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly. A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases. Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so. Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions. The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution. This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can. The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it. I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate. (Mr. KYL assumed the chair.) Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second. Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side. Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment. Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided. Mr. DOLE. Mr. President, I make that request. The PRESIDING OFFICER. Without objection, it is so ordered. Amendment No. 1226 to Amendment No. 1199 (Purpose: To amend the bill with respect to requiring counsel for federal habeas proceedings) Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The bill clerk read as follows: The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199. Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]] The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete from page 106, line 20 through all of page 125 and insert the following: ``(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.''. SEC. 605. SECTION 2255 AMENDMENTS. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth undesignated paragraphs; and (2) by adding at the end the following new undesignated paragraphs: ``A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. ``A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- ``(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ``(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.''. SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. (a) Conforming Amendment to Section 2244(a).--Section 2244(a) of title 28, United States Code, is amended by striking ``and the petition'' and all that follows through ``by such inquiry.'' and inserting ``, except as provided in section 2255.''. (b) Limits on Second or Successive Applications.--Section 2244(b) of title 28, United States Code, is amended to read as follows: ``(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. ``(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- ``(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ``(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. ``(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. ``(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. ``(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. ``(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. ``(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. SEC. 607. DEATH PENALTY LITIGATION PROCEDURES. (a) Addition of Chapter to Title 28, United States Code.-- Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter: ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES ``Sec. ``2261. Prisoners in State custody subject to capital

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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)

Text of this article available as: TXT PDF [Pages S7803-S7880] COMPREHENSIVE TERRORISM PREVENTION ACT The PRESIDING OFFICER. Under the previous order, the hour of 9:45 having arrived and passed, the Senate will now resume consideration of S. 735, which the clerk will report. The legislative clerk read as follows: A bill (S. 735) to prevent and punish acts of terrorism, and for other purposes. The Senate resumed consideration of the bill. Pending: Hatch-Dole amendment No. 1199, in the nature of a substitute. Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. [[Page S7804]] Based on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States. Mr. HATCH. Will my colleague yield? Mr. SPECTER. I do. Mr. HATCH. Mr. President, I thank my colleague for his kindness. I have to say we would not be as far along here on habeas corpus and having it in this bill if it was not for his leadership in this area. He is one of the few people in the whole Congress who really understands this issue very fully and thoroughly, and I have to give him an awful lot of credit on it. We have worked together with the States attorneys general to have the language we have in this bill. I hope everybody on this floor will vote down these amendments that are being brought up here today because I think it is the only way we can make the change and get rid of these frivolous appeals, save taxpayers billions of dollars, and get the system so it works in a just and fair way, the way it should. The amendment we have will protect civil liberties and constitutional rights while at the same time protecting the citizens and the victims and their families from the incessant appeals that really have been the norm in our society. So I thank my colleague for his leadership on this and I just personally respect him and appreciate him and consider him a great friend. We are prepared to go. We are supposed to have a vote at 10:15. I hope we can move ahead on the bill. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners) Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Delaware [Mr. Biden] proposes an amendment numbered 1217. Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete title 6, subtitle A, and insert the following: Subtitle A--Collateral Review in Federal Criminal Cases SEC. 601. FILING DEADLINES. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth paragraphs; and (2) by adding at the end the following new paragraphs: ``A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movement was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and is made retroactively applicable; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In a proceeding under this section before a district court, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held only if a circuit justice or judges issues a certificate of appealability. A certificate of appealability may issue only if the movement has made a substantial showing of the denial of a constitutional right. A certificate of appealability shall indicate which specific issue or issues shows such a denial of a constitutional right. ``A claim presented in a second or successive motion under this section that was presented in a prior motion shall be dismissed. ``A claim presented in a second or successive motion under this section that was not presented in a prior motion shall be dismissed unless-- ``(A) the movant shows the claim relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the underlying offense. ``Before a second or successive motion under this section is filed in the district court, the movant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. A motion in the court of appeals for an order authorizing the district court to consider a second or successive motion shall be determined by a three-judge panel of the court of appeals. The court of appeals may authorize the filing of a second or successive motion only if it determines that the motion makes a prima facie showing that the motion satisfies the requirements in this section. The court of appeals shall grant or deny the authorization to file a second or successive motion not later than 30 days after the filing of the motion. [[Page S7806]] ``The grant or denial of an authorization by a court of appeals to file a second or successive motion shall not be appealable and shall not be the subject of a petition for rehearing or a writ of certiorari. ``A district court shall dismiss any claim presented in a second or successive motion that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains? The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 seconds. Mr. BIDEN. I will reserve the remainder of my time. I yield the floor. Mr. HATCH. Mr. President, I rise in opposition to the amendment offered to limit habeas reform exclusively to Federal cases. Some have argued that habeas reform as applied to the States is not germane to this debate. Those individuals, including my distinguished colleague from Delaware, contend that a [[Page S7807]] reform of the Federal overview of State convictions is meaningless in the context of the debate we are having. They are perhaps willing to admit that some revision of the collateral review of cases tried in Federal court may be in order, but they contend that reform of Federal collateral review of cases tried in State court is unnecessary. This position is simply incorrect. I would like to read from a letter written by Robert H. Macy, district attorney of Oklahoma City, and a Democrat: [I]mmediately following the trial or trials in federal court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek, and obtain the maximum penalty allowable by law for the senseless and cowardly killings. In our reaction to the destruction of the Federal building in Oklahoma City, we may overlook the fact that the bombing also caused the death of people who were not inside the building itself, or even on Federal property. The State of Oklahoma, not the Federal Government, will thus prosecute those responsible for the bombing that killed people outside of the Federal building. In those instances, Federal jurisdiction may not obtain and it will thus be necessary to prosecute the killers in State, as well as Federal, court. A failure to enact a complete, meaningful, reform of habeas corpus proceedings may enable the individuals in this case, provided they are apprehended and duly convicted, to frustrate the demands of justice. The blood of the innocent men and women are on the hands of the evil cowards who committed this terrible tragedy. Justice must be, as President Clinton declared, ``swift, certain, and severe.'' Moreover, failure to enact meaningful, comprehensive, habeas reform will permit other killers who have terrorized their communities to continue to frustrate the judicial system. If we adopt the proposed amendment, we will create a schism between State and Federal capital law. In other words, murders tried in Federal court will face imposition of their final penalty more swiftly than persons tried for capital crimes in State cases. Why should we adopt such a piecemeal approach to reform, one that will leave such a gap between State and Federal cases? It simply makes no sense to reform habeas proceedings for cases tried in Federal court but leave the current disastrous system in place for cases tried in State court. As of January 1, 1995, there were some 2,976 inmates on death row. Yet, only 38 prisoners were executed last year, and the States have executed only 263 criminals since 1973. Abuse of the habeas process features strongly in the extraordinary delay between sentence and the carrying out of that sentence. In my home State of Utah, for example, convicted murderer William Andrews delayed the imposition of a constitutionally imposed death sentence for over 18 years. The State had to put up millions of dollars in precious criminal justice resources to litigate his meritless claims. His guilt was never in question. He was not an innocent person seeking freedom from an illegal punishment. Rather, he simply wanted to frustrate the imposition of punishment his heinous crimes warranted. This abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has taken a dreadful toll on victims' families, seriously eroded the public's confidence in our criminal justice system, and drained State criminal justice resources. This is simply not a just system. Justice demands that lawfully imposed sentences be carried out. Justice demands that we now adopt meaningful habeas corpus reform. Justice demands that we not permit those who would perpetuate the current system to steer us from our course. We must do as the victims, families, and friends of those who have asked us to do: enact meaningful, comprehensive habeas reform now. Mr. President, I know a number of our colleagues are ready to vote on this. Let me just make three or four points that I think are important with regard to the amendment of my friend and colleague. I contend that the Biden amendment--and I think anybody who reads it would gut the habeas corpus title of this bill by applying habeas corpus reform solely to Federal capital convictions thus making reform inapplicable to the majority of capital cases including the Oklahoma State prosecution for murders of some of the people killed in Oklahoma. I am referring to those victims who were not Federal employees but were killed by the blast while outside of the building. If this amendment passes, there would be no habeas reform that would apply to them. So I would like to make three additional points about why we should not vote for the Biden amendment before I move to table the amendment. First, I have made this point that where people who were not Federal employees were outside the building, the terrorist will be prosecuted in State court for those people. I ask unanimous consent that a letter from Robert H. Macy, a Democrat district attorney of Oklahoma City, be printed in the Record. There being no objection, the letter was ordered to be printed in the Record, as follows: State of Oklahoma, District Attorney, Oklahoma City, OK, May 24, 1995. Senator Orrin G. Hatch, Chairman, Judiciary, Dirksen Senate Office, Washington, DC. Dear Senator Hatch: The purpose of this letter is to express my support for the inclusion of the provisions for reform of Federal Habeas Corpus authored by Senator Spector and you in the Anti-terrorism Bill, S735. Apparently some persons have raised questions about the appropriateness of this measure. Specifically, I have been told that there are some who do not see the importance of these reform measures in cases, such as the Oklahoma City bombing, which will initially be prosecuted by Federal Court. There are two points I would like to make in response to those questions. First, immediately following the trial or trials in Federal Court, I shall, working in cooperation with the United States Department of Justice and the Federal law enforcement agencies investigating the bombing of the Alfred P. Murrah Building, prosecute in Oklahoma State Court the cowards responsible for murdering innocent people in the area surrounding the federal building. And I shall seek the death penalty. We must never forget that this bombing took several lives and injured dozens of persons in the neighborhood and businesses near the building. The State of Oklahoma has an overwhelming, compelling interest to seek and obtain the maximum penalty allowable by law for the senseless and cowardly killings. Not only is it in the interest of the State, it is my sworn duty to seek those sanctions, and I intend to fully carry out my responsibilities. The reform measures contained in the Spector, Hatch, Dole Habeas Corpus Reform measures contained in S735 will in my judgment significantly curb the abuse and delays inherent in current habeas practice. Every day of delay represents a victory for these cowardly cold blooded killers and another day of defeat and suffering for the victims and all other Americans who cry out for justice. Secondly, your reform provisions will also create significant time savings during appeals from federal convictions as well. Examples of this include: Time limitations on when habeas petitions may be filed; time deadlines on when federal courts must rule on habeas petitions; a requirement that federal courts prioritize consideration of capital appeals; reform of the abuses inherent in the probable cause process; limitations on second and successive petitions. As Chairman of the Board of Directors of the National District Attorney's Association I am proud to inform you that America's prosecutors speak with one voice and that we are calling upon you and your colleagues to set your priorities and enact reforms which will provide to every convicted murderer the rights guaranteed by the constitution, but absolutely no further consideration or delay than is constitutionally required. Respectfully, Robert H. Macy, District Attorney. Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very clear that he intends to prosecute these terrorists under State law who caused the Oklahoma City bombing. If he does, the Biden amendment will not apply to them. So they can be on death row, even though we want swift, secure, and fast judgment, they would be on death row for anywhere up to 50 years, which is the case of one person in our society [[Page S7808]] today still sitting on death row almost 50 years later. So, first, it does not take care of those Federal employees who were killed outside the building should the State of Oklahoma choose to prosecute those responsible--as Robert Macy has stated will occur. Second, we do not want piecemeal reform. If a robber kills one of the Federal employees the night before the bombing in Oklahoma City or anywhere else, why should we treat that killer any differently from the Oklahoma terrorists simply because he would be tried in a State court rather than a Federal court? We need to have it apply across the board, and the vast majority of murders are committed in the States and prosecuted by the State courts, and they would not be affected by the Biden amendment. Third, let us say that the Federal Government prosecutors, for some reason or other, blow the prosecution. Assume we are unable to get a conviction against these terrorists in the Federal courts. The double jeopardy clause still allows the State to prosecute those terrorists or those murderers in State court under State law. But if they do prosecute them and we do not reform Federal habeas corpus review of State cases, then we will have the same incessant, frivolous appeals ad hominem, day and night, from that point on because this amendment would not take care of that problem. If we are going to pass habeas reform, let us pass real habeas reform. Let us do it straight up. Let us protect the constitutional rights, which our amendment does do in the bill. Let us protect civil liberties, but let us get some finality into the law so that the frivolous appeal game will be over. Basically, those are the three things: People killed who are not Federal employees outside the building, those prosecutions will be brought in State court. And the Biden amendment would not apply to the benefit of habeas reform to that case. We do not want piecemeal reform. If a robber kills a Federal employee the night before the bombing in Oklahoma City, just to give a hypothetical, and the State has to bring the murder action against that individual, then why should that person not be subject to the same rules as the murderers in the Oklahoma City bombing? And if the Federal prosecutor blows the prosecution, why should not the State prosecutor be able to bring action under the State laws and under those circumstances prosecute the killers and have the same rule apply under those circumstances as well? Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment. Mr. HATCH. I am prepared to yield. Let me just make a point that a State prosecutor--a Democrat--is going to prosecute these terrorists, and this habeas reform, if the Biden amendment passes, will not apply to them. And that, in a nutshell, is the problem with this amendment. We ought to make our habeas reform apply to both Federal and State convictions. Mr. President, I move to table the amendment and ask for the yeas and nays. The PRESIDING OFFICER. Do Senators yield back their time? Mr. HATCH. I yield back the time. Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time. Mr. HATCH. I yield back my time. The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered. The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. The yeas and nays have been ordered. The clerk will call the roll. Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania [Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are necessarily absent. I further announce that, if present and voting, the Senator from Wyoming [Mr. Simpson], would vote ``yea.'' Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote? The result was announced--yeas 67, nays 28, as follows: [Rollcall Vote No. 237 Leg.] YEAS--67 Abraham Ashcroft Baucus Bennett Bingaman Bond Breaux Brown Bryan Burns Byrd Campbell Chafee Coats Cochran Cohen Coverdell Craig D'Amato DeWine Dole Domenici Exon Faircloth Feinstein Ford Frist Gorton Graham Grams Grassley Hatch Heflin Helms Hollings Hutchison Inhofe Jeffords Johnston Kassebaum Kempthorne Kerrey Kyl Lieberman Lott Lugar Mack McCain McConnell Murkowski Nickles Nunn Pressler Pryor Reid Robb Rockefeller Roth Shelby Smith Snowe Specter Stevens Thomas Thompson Thurmond Warner NAYS--28 Akaka Biden Boxer Bradley Bumpers Daschle Dodd Dorgan Feingold Glenn Harkin Hatfield Inouye Kennedy Kerry Kohl Lautenberg Leahy Levin Mikulski Moseley-Braun Moynihan Murray Packwood Pell Sarbanes Simon Wellstone NOT VOTING--5 Conrad Gramm Gregg Santorum Simpson So the motion to table the amendment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It was my intention to vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to change my vote. This will in no way change the outcome of the vote. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. (The foregoing tally has been changed to reflect the above order.) Mr. KENNEDY. Mr. President, I rise to speak generally on the subject of habeas corpus and in support of the amendments by Senators Biden and Levin that will be offered to the bill. At the outset, I want to emphasize my support for passage of a strong antiterrorism bill that gives law enforcement agencies the tools they need to combat crimes of terror at home and abroad. I commend President Clinton and the Senators who brought in legislation expeditiously before the Senate. There is much in this legislation that deserves to be enacted into law as soon as possible. It is unfortunate, therefore, that the proponents of the bill have injected into it an unrelated and highly controversial subject; namely, drastic changes to longstanding law relating to habeas corpus. The manager of the bill says that habeas corpus is relevant because the suspects charged in the Oklahoma City [[Page S7809]] bombings are charged with a capital offense. But that fact presents absolutely no justification for changing the rules with regard to State prisoners. The inclusion of sweeping habeas corpus reform in this bill is the worst kind of opportunism, and I regret that it has occurred in the wake of this national tragedy. When, and if, capital punishment is imposed, it must be imposed in a constitutional manner. That is accomplished through the writ of habeas corpus--a process so central to our constitutional system of Government that it is often called the ``Great Writ.'' Clearly, some form of habeas corpus is needed to avoid excessive litigation, repetitive reviews, and the delays that sometimes characterize the present system. In a series of decisions over the past 10 years, the Supreme Court itself has imposed certain restrictions on the ability of death row inmates to obtain review through habeas corpus, and the issue has brought heated controversy to our congressional debates on crime bills in recent years. In the past, Senator Biden, among others, has proposed legislation to limit the number and length of death row appeals, but at the same time to make sure that post-conviction review in the Federal courts is meaningful. But he adhered to the sensible conclusion of former Justice Lewis Powell, who in a landmark report commissioned by Chief Justice Rehnquist said the following: Capital cases should be subject to one fair and complete course of collateral review through the State and Federal system. Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence. But the bill before us today does not strike a fair balance. It actually precludes the meaningful review that Justice Powell said was necessary, and it increases the likelihood that innocent people will be executed in this country. A principal problem is that this bill does nothing to ensure that death penalty defendants receive adequate legal representation at their original trial. As many as 20 percent of all death sentences are overturned after Federal habeas corpus review, very often because a defendant has been inadequately represented at trial. This bill also eliminates the current requirement that poor defendants receive appointed counsel in Federal habeas corpus proceedings. I reject that view. The appointment of attorneys for death row inmates is not a question of sympathy, it is a question of fundamental fairness. In addition, the bill limits the circumstances under which a death row inmate may raise a claim of innocence based on newly discovered evidence. The proposal to limit inmates to one bite at the apple is sound in principle, but surely our interest in swift executions must give way in the face of new evidence that an innocent person is about to be put to death. At any time prior to the execution there must be a forum in which non-frivolous claims of innocence can be heard. As Supreme Court Justice Potter Stewart once wrote, ``swift justice demands more than just swiftness.'' Finally, the bill might be read to require Federal courts to defer to State courts on issues of Federal constitutional law. In part the bill states that a Federal court cannot grant a writ of habeas corpus based on Federal constitutional claims unless the State court judgment was an ``unreasonable application of Federal law.'' No one thinks that under current law the Federal courts just ignore State court decisions, even on questions of Federal constitutional law. The federal courts respect the State courts and give their decisions a great deal of attention. The specialists I have talked to tell me that the Federal courts, even now, grant relief on constitutional claims only when it is pretty clear that a prisoner's constitutional rights were violated. This being true, a bill that tells the Federal courts that they should not grant relief unless they are satisfied that a prisoner's clearly established rights were violated may not change things very much. I do not see the need for this kind of language in the bill, but to the extent it allows the Federal courts to do what they are doing now, it may do no great harm. I just hope that, if the bill is adopted, it will be interpreted correctly. A contrary interpretation would stand our Federal system on its head. Why should a Federal court defer to the judgment of a State court on a matter of Federal constitutional law? The notion that a Federal court would be rendered incapable of correcting a constitutional error because it was not an unreasonable constitutional error is unacceptable, especially in capital cases. Ever since the days of the great Chief Justice John Marshall, the Federal courts have historically served as the great defenders of constitutional protections. They must remain so. Whatever the merits of this sweeping habeas corpus reform, such drastic changes should not be adopted on this bill. Nothing in this legislation would be more detrimental to the values of the Nation and our Constitution than for Congress, in its rush to combat terrorism, to strip away venerable constitutional questions. The perpetrators of the Oklahoma City tragedy will have triumphed if their actions promote us to short-circuit the Constitution. This bill goes far beyond terrorism and far beyond Federal prisoners. It severely limits the ability of any State prisoner--not just terrorists, but any State prisoner--to seek Federal court review of constitutional rights. This is an extremely controversial, very complicated proposal. It is wrong to try to sneak it into an antiterrorism bill that we all want to pass as quickly as we reasonably can. The debate on comprehensive habeas corpus reform should take place when we take up the omnibus crime bill. The attempt to jam it into the pending bill is a cynical attempt to manipulate public concern about terrorism, and the Congress should reject it. I urge the Senate to act responsibly on this critical issue. We should adopt the Biden and Levin amendments on the subject, and if necessary resume the rest of the debate on habeas corpus when the crime bill comes before the Senate. (Mr. KYL assumed the chair.) Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose of the Biden amendment No. 1217. My understanding is that the Senator from Delaware is prepared to offer a second. Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side. Mr. DOLE. We have one, and we have 30 minutes equally divided on this amendment. Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided. Mr. DOLE. Mr. President, I make that request. The PRESIDING OFFICER. Without objection, it is so ordered. Amendment No. 1226 to Amendment No. 1199 (Purpose: To amend the bill with respect to requiring counsel for federal habeas proceedings) Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. The bill clerk read as follows: The Senator from Delaware [Mr. Biden], proposes an amendment numbered 1226 to amendment No. 1199. Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]] The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Delete from page 106, line 20 through all of page 125 and insert the following: ``(h) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.''. SEC. 605. SECTION 2255 AMENDMENTS. Section 2255 of title 28, United States Code, is amended-- (1) by striking the second and fifth undesignated paragraphs; and (2) by adding at the end the following new undesignated paragraphs: ``A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-- ``(1) the date on which the judgment of conviction becomes final; ``(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; ``(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ``(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. ``In all proceedings brought under this section, and any subsequent proceedings on review, appointment of counsel for a movant who is or becomes financially unable to afford counsel shall be in the discretion of the court, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. ``A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- ``(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ``(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.''. SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. (a) Conforming Amendment to Section 2244(a).--Section 2244(a) of title 28, United States Code, is amended by striking ``and the petition'' and all that follows through ``by such inquiry.'' and inserting ``, except as provided in section 2255.''. (b) Limits on Second or Successive Applications.--Section 2244(b) of title 28, United States Code, is amended to read as follows: ``(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. ``(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- ``(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or ``(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and ``(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. ``(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. ``(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. ``(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. ``(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. ``(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. ``(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.''. SEC. 607. DEATH PENALTY LITIGATION PROCEDURES. (a) Addition of Chapter to Title 28, United States Code.-- Title 28, United States Code, is amended by inserting after chapter 153 the following new chapter: ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES ``Sec. ``2261. Prisoners in State custody subject t

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