COMPREHENSIVE TERRORISM PREVENTION ACT
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COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)
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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
Major Actions:
All articles in Senate section
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
Amendments:
Cosponsors:
COMPREHENSIVE TERRORISM PREVENTION ACT
Sponsor:
Summary:
All articles in Senate section
COMPREHENSIVE TERRORISM PREVENTION ACT
(Senate - June 07, 1995)
Text of this article available as:
TXT
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[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
Major Actions:
All articles in Senate section
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
Amendments:
Cosponsors: