    [House Hearing, 109 Congress]
    [From the U.S. Government Publishing Office]

     TERRORIST DEATH PENALTY ENHANCEMENT ACT OF 2005, AND THE STREAMLINED
                             PROCEDURES ACT OF 2005

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                       ON

                            H.R. 3060 and H.R. 3035

                                   __________

                                 JUNE 30, 2005

                                   __________

                               Serial No. 109-46

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
    HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
    HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
    LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
    ELTON GALLEGLY, California           JERROLD NADLER, New York
    BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
    STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
    DANIEL E. LUNGREN, California        ZOE LOFGREN, California
    WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
    CHRIS CANNON, Utah                   MAXINE WATERS, California
    SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
    BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
    JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
    MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
    RIC KELLER, Florida                  ADAM B. SCHIFF, California
    DARRELL ISSA, California             LINDA T. SANCHEZ, California
    JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
    MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
    J. RANDY FORBES, Virginia
    STEVE KING, Iowa
    TOM FEENEY, Florida
    TRENT FRANKS, Arizona
    LOUIE GOHMERT, Texas

                 Philip G. Kiko, General Counsel-Chief of Staff
                   Perry H. Apelbaum, Minority Chief Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                     HOWARD COBLE, North Carolina, Chairman

    DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
    MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
    TOM FEENEY, Florida                  MAXINE WATERS, California
    STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
    RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
    JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
    MIKE PENCE, Indiana
    J. RANDY FORBES, Virginia
    LOUIE GOHMERT, Texas

                          Jay Apperson, Chief Counsel
               Elizabeth Sokul, Special Counsel for Intelligence
                             and Homeland Security
                      Michael Volkov, Deputy Chief Counsel
                     Jason Cervenak, Full Committee Counsel
                         Bobby Vassar, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 JUNE 30, 2005

                               OPENING STATEMENT

                                                                       Page
    The Honorable Howard Coble, a Representative in Congress from the
      State of North Carolina, and Chairman, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     1
    The Honorable Robert C. Scott, a Representative in Congress from
      the State of Virginia, and Ranking Member, Subcommittee on
      Crime, Terrorism, and Homeland Security........................     2
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     4

                                   WITNESSES

    Mr. Barry M. Sabin, Chief of Counterterrorism Section for the
      Criminal Division, U.S. Department of Justice
      Oral Testimony.................................................     7
      Prepared Statement.............................................     9
    The Honorable Joshua K. Marquis, District Attorney, Clatsop
      County, Oregon
      Oral Testimony.................................................    14
      Prepared Statement.............................................    16
    Mr. Ron Eisenberg, Deputy District Attorney, Philadelphia,
      Pennsylvania
      Oral Testimony.................................................    89
      Prepared Statement.............................................    90
    Mr. Bernard E. Harcourt, Professor of Law/Faculty Director of
      Academic Affairs, University of Chicago
      Oral Testimony.................................................    94
      Prepared Statement.............................................    97

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.....................     5

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Letter from Michael Israel, Editor, Criminal Justice Washington
      Letter, to the Honorable Howard Coble, a Representative in
      Congress from the State of North Carolina, and Chairman,
      Subcommittee on Crime, Terrorism, and Homeland Security, and
      the Honorable Robert C. Scott, a Representative in Congress
      from the State of Virginia, and Ranking Member, Subcommittee on
      Crime, Terrorism, and Homeland Security........................   140

     TERRORIST DEATH PENALTY ENHANCEMENT ACT OF 2005, AND THE STREAMLINED
                             PROCEDURES ACT of 2005

                                  ----------

                            THURSDAY, JUNE 30, 2005

                      House of Representatives,
                      Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 1 p.m., in
    Room 2141, Rayburn House Office Building, the Honorable Howard
    Coble (Chair of the Subcommittee) presiding.
        Mr. Coble. Good afternoon, ladies and gentlemen. The
    hearing will come to order.
        I have good news and bad news. The good news is we are all
    here in place. The bad news is, Mr. Scott, I am told that there
    will be a series of votes imminently, so we will play that by
    ear and then play that card which was dealt to us.
        Before I give my opening statement, and before I recognize
    Mr. Scott, much interest has been indicated in this issue, and
    some Members of the Subcommittee have requested a second
    hearing, and we will in fact conduct a second hearing. I'm not
    sure when that will be, but there will be a second hearing
    conducted.
        I want to welcome everyone to this hearing on the death
    penalty in America. The issue of the death penalty in our
    country continues to spark significant debate. The American
    people believe in the death penalty, especially for
    terrorists--strike that. Many American people believe in the
    death penalty, especially for terrorists who have killed
    Americans. I am convinced that we must be vigilant in ensuring
    that capital punishment is meted out fairly against those truly
    guilty criminals.
        In the last session of Congress we enacted the Justice for
    All Act, a far-reaching measure which provided additional
    safeguards of our death penalty system for post-conviction DNA
    testing of evidence and improvements in our capital counsel
    system. This was a matter you all remember that was co-
    sponsored by our Chairman of the full Committee, Mr.
    Sensenbrenner, and Mr. Delahunt. And I think, Bobby, you co-
    sponsored it as well, or did you? The DNA. And Mr. Scott and I
    were co-sponsors of that as well.
        The integrity of our criminal justice system, and in
    particular our death penalty system, has been enhanced by the
    enactment of this measure. Despite these improvements, some
    death penalty opponents continue to argue that the system is
    broken and that the death penalty system is unfair.
        I am concerned about the manner in which the debate is
    being conducted in some instances. Some death penalty opponents
    have, in some cases, used some disinformation or even deceptive
    information on occasion to suggest that the death penalty in
    our country is not accurate. Yet no credible evidence has been
    provided, known to me, to suggest that a single innocent person
    has been executed since the Supreme Court imposed the
    heightened protections in 1976.
        We now have in place greater safeguards and technologies to
    ensure accuracy at the most important phase of a prosecution;
    that is, the trial. Aside from the protection of the public and
    the just punishment of the guilty, our death penalty system
    vindicates the rights of victims and their families to see that
    justice is in fact done.
        Often during the debate of the death penalty the rights of
    victims and their need for closure is minimized, or in some
    instances ignored.
        Today we are also examining two important proposals, the
    first introduced by Representative Carter, the gentleman from
    Texas, a former Member of the Judiciary Committee. H.R. 3060,
    the ``Terrorist Death Penalty Enhancement Act of 2005,'' adds
    the death penalty for a number of terrorist attacks, including
    weapons of mass destruction, atomic bombs, guerrilla violence,
    missiles, and other means of attack. The House passed many of
    these provisions in the last session of Congress, but they were
    dropped during the conference with the Senate on the
    Intelligence Reform bill.
        In addition, Representative Carter's bill proposes to treat
    terrorism crimes similarly under our Federal death penalty
    statute to espionage and treason crimes where a terrorist crime
    creates a grave risk of harm to our country.
        Today we are also examining Representative Lungren's
    proposal, H.R. 3035, the ``Streamlined Procedures Act of
    2005,'' which reforms habeas corpus review of State court
    convictions.
        The Subcommittee in the judicial security hearing, and in
    examining child crimes, and even last Congress during
    consideration of the Justice for All Act, has gathered a
    substantial amount of evidence showing that the Federal court
    habeas review, particularly in the death penalty area, has
    suffered from extraordinary delays, some I am told as long as
    15 years, for a pending habeas petition to be resolved by a
    single Federal judge, a misguided application to precedent to
    frustrate the ends of justice in some instances.
        I look forward to hearing from today's witnesses, and I am
    now pleased to recognize my friend, the distinguished gentleman
    from Virginia, the Ranking Member of the Subcommittee, Mr.
    Bobby Scott.
        Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
    you in convening this hearing. I would want to make one
    comment, though, on the death penalty. When you suggest that no
    innocent people have been executed, it is a fact that some
    people have been executed, and there has been evidence that
    could show whether we executed the right man or not. And in
    some States they will destroy the evidence, in others they will
    refuse to release the evidence, so you can't find whether they
    were correct or not. And furthermore, there are a lot of cases
    where people have been put on death row, and but for DNA
    evidence they would have been executed. DNA evidence not only
    in some cases confirmed innocence, but also pointed to the
    actual perpetrator.
        Mr. Coble. Would the gentleman suspend a moment?
        Mr. Scott. Yes.
        Mr. Coble. Now, are you talking, Mr. Scott, from 1976 or
    prior to 1976? I was going post 1976.
        Mr. Scott. People have been released from death row since
    1976, yes, because they have been found innocent through DNA
    evidence; fair trial, everything else, just had the wrong man.
    And DNA evidence revealed, exposed the fact that not only did
    they not do it but also pointed out the one that did.
        Now, there is no reason to suspect that people for whom
    there is no DNA evidence are innocent at any smaller percentage
    than those for which you lucked out and do have DNA evidence.
    And so those who have suggested no innocent person has not been
    executed I think cannot make that case credibly.
        But I must say, though, Mr. Chairman, that this hearing has
    somewhat evolved from what it started with. It started with a
    hearing where a main focus would be whether or not there was
    any deterrence value on the death penalty. It has changed to
    one in which I found the primary issue to be whether the writ
    of habeas corpus should be essentially eviscerated through H.R.
    3035, the so-called Streamlined Procedures Act.
        Because of the devastating implications of this bill, and
    because I am restricted to calling only one witness for this
    hearing who only has 5 minutes to make his case, the entire
    focus of our witness had to be devoted to this issue, the
    habeas corpus issue. This means that the deterrence issue and
    H.R. 3060, the Terrorist Death Penalty Act, could not be
    addressed. And that is unfortunate because there is valuable
    information that needs to be on the record regarding both of
    these issues, and therefore I feel that we need a separate
    hearing on this issue. And I want to thank you, Mr. Chairman,
    for committing to having that separate hearing.
        From the initial discussions of our counsels on the
    hearing, I fully expect that the future witnesses will be those
    who will be researching the deterrence issue. And I expect one
    of those--I expected one of those witnesses to be Joanna
    Shepard or one of her colleagues who would be an economist. She
    has since qualified her original finding that the death penalty
    reduced crime following a tirade of criticism and challenges
    from social scientists and criminal justice researchers. She
    had stated that executions have an overall deterrent value on
    the national level, but critics pointed out that her analysis
    was failed. She has subsequently concluded, as I understand it,
    that of the 27 States that have had at least one execution
    during their study period, capital punishment deterred murder
    in 6 of those States. However, the study suggested that it
    increased murder in 13 States, or twice as many; in 8 States it
    had apparently no effect. So on 22 percent of the States
    executions had a deterrent effect. In contrast, almost 80
    percent of the States had either no effect or it actually
    increased crime.
        She concluded that her previously established, quote,
    deterrent effect had come from 6 States with high execution
    rates. And if you are going to draw that conclusion, unless you
    go to those high execution rates in a handful of States, you
    are better off with no death penalty at all.
        H.R. 3035 represents a radical restructuring of traditional
    applications of the habeas corpus, one of the founding
    principles of our country. We will hear some issues and
    problems presented by this bill from our witness, Professor
    Harcourt, but we really need to focus more attention on the
    implications of this bill before proceeding further on it.
        And so, Mr. Chairman, I look forward to the testimony of
    our witnesses today and look forward to working with you in our
    next hearing.
        Mr. Coble. I thank you, Mr. Scott.
        We have been joined by the distinguished gentleman from
    Michigan, the Ranking Member of the full Committee Mr. Conyers,
    and the distinguished gentleman from Florida and Ohio,
    respectively, Mr. Feeney and Mr. Chabot, and the gentleman from
    California, Mr. Lungren.
        It is customary to reserve opening statements to Mr. Scott
    and to me, but when the Ranking Member of the full Committee
    attends our hearing, I am pleased to recognize him for an
    opening statement if he has one. Mr. Conyers.
        Mr. Conyers. Thank you, Chairman Coble. I come here to wish
    that these two bills had been the subject of separate hearings
    because they are both complex and both very important.
        Mr. Coble. Would the gentleman suspend?
        Mr. Conyers. With pleasure.
        Mr. Coble. Mr. Conyers, before you came--and you may know
    this--we have also agreed to have a second hearing on these
    issues as well.
        Mr. Conyers. Yes, thank you. I am happy to know that.
        We are dealing with the death penalty, and I have heard the
    Ranking Subcommittee Member make some important points about
    it, with which I associate myself, but in the end, the inherent
    problems with the death penalty is that it sometimes has a
    reverse deterrent effect and may in fact create martyrs,
    especially when terrorist-type cases--the Timothy McVeigh
    situation. There are now over a hundred Americans that have
    been sentenced to death, only later to be exonerated, which
    suggests that many of the people convicted and sentenced to
    death may actually be innocent.
        And then in terms of the habeas corpus and stripping
    Federal courts of their jurisdiction is a very serious matter.
    Single-handedly, this measure would virtually eliminate the
    ability of the Federal courts to determine Federal
    constitutional issues in cases involving prisoners either
    facing death sentences or serving prison terms. And let's see,
    the Supreme Court decisions--one, two, three at least--would be
    overturned, and I think additionally would undermine the
    overall independence of the Federal judiciary.
        I think these matters, both the proposals, contain bad
    policy, and I look forward to the hearings and ask unanimous
    consent to insert my statement into the record.
        Mr. Coble. Without objection, the statement will be
    inserted into the record.
        [The prepared statement of Mr. Conyers follows:]
    Prepared Statement of the Honorable John Conyers, Jr., a Representative
     in Congress from the State of Michigan, and Ranking Member, Committee
                                on the Judiciary
        H.R. 3060 offers a solution for a problem and culture that is
    obviously sorely misunderstood. While it pretends to make us safer, in
    reality it undermines the solid bit of information that we do know.
        For example, we know--thanks to the testimony of the majority's own
    witness last Congress--that there is no scientific evidence indicating
    that terrorists will actually be deterred by the threat of capital
    punishment.
        We also know, that with the addition of each new death penalty, we
    decrease the likelihood of international cooperation and assistance in
    our efforts to bring suspected terrorists to justice.
        Finally, we know--as a result of the events surrounding the
    execution of convicted Oklahoma City bomber Timothy McVeigh that the
    execution of terrorists could actually have a reverse deterrent effect
    through the creation of ``martyrs.''
        In the end, the inherent problems with this bill are the same as
    those found in many other bills involving the death penalty. Namely,
    that the system is flawed, defendants rarely receive adequate legal
    representation and that its application is racially discriminatory.
        There are now over 100 Americans that have been sentenced to death,
    only later to be exonerated. Proving that many of the people convicted
    and sentenced to death are actually innocent.
        Turning attention away from H.R. 3060 and to H.R. 3035, the
    addition of this bill to the scope of today's hearing proves that the
    real issue confronting us is about far more than reducing crime and
    preventing terrorism. As H.R. 3035 clearly demonstrates, it's really
    about undermining the role of habeas corpus and stripping federal
    courts of their jurisdiction to determine many federal issues.
        Singlehandedly, this bill would virtually eliminate the ability of
    federal courts to determine federal constitutional issues in cases
    involving prisoners either facing death sentences or serving prison
    terms. It would overturn a whole series of Supreme Court decisions;
    including Rhines v. Webber (125 S.Ct. 1528)(2005), Artuz v. Bennett
    (531 U.S. 4)(2000), and Carey v. Saffold (593 U.S. 927)(2003). And, it
    would considerably undermine the overall independence of the federal
    judiciary.
        Quite interestingly, proponents of this bill are some of the same
    Members of Congress who advocated for the expansion of federal
    jurisdiction in the case of Terri Schiavo. Now, just a few days later
    they seek to drastically eliminate it for a countless number of
    individuals presently involved in our criminal justice system.
        Bad politics makes for bad policy. These bills are both. I strongly
    urge my colleagues to oppose these two measures.

        Mr. Coble. Gentlemen, it is the practice of the
    Subcommittee to swear in all witnesses appearing before us, so
    if you would please stand and raise your right hands.
        [Witnesses sworn.]
        Mr. Coble. Let the record show that each of the witnesses
    answered in the affirmative. You may be seated.
        We have a very distinguished panel, ladies and gentlemen,
    let me introduce them to you. We have four distinguished
    witnesses today. Our first witness is Mr. Barry Sabin, Chief of
    the Counterterrorism Section of the Criminal Division of the
    Justice Department. Prior to beginning this role Mr. Sabin
    served as a Federal criminal trial attorney in the United
    States Attorney's Office in Miami, Florida, where he held a
    number of supervisory positions, including the Chief of the
    Criminal Division and chief of the major prosecutions in the
    violent crime session.
        Prior to joining the Justice Department, he was a
    litigation associate at Stroock & Stroock & Lavan. Mr. Sabin
    received his Bachelor's and Master's Degrees from the
    University of Pennsylvania and his law degree from the New York
    University School of Law.
        Our second witness is the honorable Joshua Marquis,
    District Attorney General for Clatsop County in Astoria,
    Oregon. If you will permit me a point of personal privilege,
    Mr. Marquis, back in the dark ages I served with the Coast
    Guard at the mouth of the Columbia River, which is your town,
    and I very much enjoyed being there where it rained just about
    every day, but I still enjoyed my time on the Columbia River.
        Mr. Marquis has been a district attorney since 1994 and has
    been elected three times since then. He has worked as a
    prosecutor and defense attorney in Oregon for 20 years. He is
    past President of the Oregon District Attorney Association and
    a member of the board of directors of the National District
    Attorneys Association, where he is chair of that group's
    Capital Litigation Committee. Mr. Marquis received his
    undergraduate and law degrees from the University of Oregon.
        Our third witness today is Mr. Ronald Eisenberg, the Deputy
    District Attorney in the Philadelphia District Attorney's
    Office. Mr. Eisenberg supervises the Law Division, which
    consists of 60 attorneys. From 1986 through 1991 he was chief
    of the Appeals Unit in Philadelphia. Previously Mr. Eisenberg
    served on the Task Force on Death Penalty Litigation of the
    Third Circuit Court of Appeals and has helped to draft Federal
    legislative proposals concerning habeas corpus reform and DNA
    testing. He was awarded his Bachelor's Degree from Haverford
    College and earned his JD at the University of Pennsylvania
    School of Law.
        Our final witness today is Mr. Bernard Harcourt, Professor
    of Law and Faculty Director of Academic Affairs at the
    University of Chicago. Professor Harcourt's scholarship focuses
    on crime and punishment, and he is the author of ``Language of
    the Gun: Youth, Crime and Public Policy.'' Previously he
    practiced law at the Equal Justice Initiative from 1990 to
    1994, where he represented death row inmates.
        Following law school, he clerked for the honorable Charles
    Haight, Jr. of the U.S. District Court for the Southern
    District of New York. Professor Harcourt received his
    undergraduate degree from Princeton and his JD and PhD Degrees
    from Harvard.
        We have now been joined by the distinguished gentleman from
    Massachusetts, Mr. Delahunt. Good to have you with us. And I
    apologize to those in the audience for my lengthy introduction,
    but I think it benefits all of us to know the outstanding
    backgrounds and resumes of these gentlemen who will be
    testifying this afternoon. And the distinguished gentleman from
    Wisconsin, Mr. Green, has joined us as well.
        Gentlemen, as you all have been previously informed, we
    operate under the 5-minute rule here. The panel that appears
    before you, the green light is safe waters for you. That green
    light will turn to amber. And when the red light appears, that
    is your warning that 5 minutes have expired and Mr. Scott and I
    may come down after you. I say that figuratively speaking, of
    course. But if you could confine your remarks to the 5 minutes.
    We impose the 5-minute rule against ourselves as well, so if
    you could keep your responses to our questions as terse as
    possible. Your testimony has been reviewed and will be re-
    reviewed.
        Mr. Sabin, we are happy to recognize you to lead off.

    TESTIMONY OF BARRY M. SABIN, CHIEF OF COUNTERTERRORISM SECTION
         FOR THE CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

        Mr. Sabin. Thank you, Mr. Chairman.
        Mr. Chairman, Ranking Member Scott, Members of the
    Committee, thank you for the opportunity to testify at this
    important hearing.
        I am provided the opportunity to discuss with you the
    Department of Justice's views on this legislative effort to
    strengthen penalties for the commission of grave offenses
    committed by terrorists against the American people and our
    interests.
        The Department of Justice has been committed to the
    investigation of violent crimes carried out by terrorists
    against Americans, both within our borders and overseas, for
    more than a generation. This commitment to the investigation of
    terrorist attacks has resulted in a considerable number of
    prosecutions of those who are responsible for bombings,
    kidnappings, murders and assaults against Americans overseas
    since the 1980's, as the Department has attempted to use all
    available legal tools in the fight against terrorism.
        As the fight continues, prosecutors must be equipped with
    every possible legal weapon to help to prevent and deter
    terrorist conduct before it results in violent action, to
    severely punish such conduct when it does occur, and to help
    victims of terrorist crimes by seeking justice on their behalf.
        Title I of the Terrorist Death Penalty Enhancement Act of
    2005 enhances the existing legal arsenal to ensure that those
    responsible for the most serious criminal conduct against
    Americans, conduct that results in death or creates a grave
    risk of death, will be punished commensurate with the gravity
    of that crime.
        Let me take this opportunity in my oral statement to focus
    generally on section 103 of the bill, death penalty procedures
    for certain air piracy cases. My written statement addresses
    other provisions of the bill under consideration, particularly
    title III. There are also several other significant changes to
    the Federal capital punishment statutes that should be
    considered. The Department stands ready to work with the
    Committee on these matters.
        The Department supports section 103 of the bill, which
    would permit the imposition of the death penalty upon an
    individual convicted of air piracy offenses resulting in death
    where those offenses occurred after enactment of the
    Antihijacking Act of 1974, but before the enactment of the
    Federal Death Penalty Act of 1994. This provision would cover a
    small, but important category of defendants, including those
    responsible for the December 1984 hijacking of Kuwait Airways
    Flight 221 and the murder of two American United States Agency
    for International Development employees, the June 1985
    hijacking of TWA Flight 847 and the murder of a Navy diver, the
    November 1985 hijacking of Egypt Air Flight 648 and the murder
    of an American servicewoman as well as 56 other passengers, and
    the September 1986 hijacking of Pan Am Flight 73 and the murder
    of American citizens Rajesh Kumar and Surendra Patel as well as
    at least 19 other passengers and crew and the injury of over
    one hundred others.
        Section 103 is important to reaffirm the intent of Congress
    to have available the ultimate penalty to use against aircraft
    hijackers whose criminal actions result in death. In 1974,
    Congress enacted the Antihijacking Act in response to Furman v.
    Georgia to ensure that comprehensive procedures were available
    so that the death penalty could be constitutionally enforced.
    Over the years, the crime of air piracy was repeatedly cited by
    Members of Congress and the executive branch as an example of
    crime for which Congress has enacted the necessary
    constitutional provisions to enforce the death penalty.
        In 1994, in an effort to make the death penalty widely
    available for numerous Federal offenses and to enact uniform
    procedures to apply to all Federal capital offenses, Congress
    passed the Federal Death Penalty Act of 1994, explicitly
    including air piracy procedures among the list to which it
    applies, at the same time repealing the former death penalty
    procedures of the Antihijacking Act of 1974. The problem with
    this legal development is that there is a perceived gap in
    legislative intent to maintain the option of a death penalty
    for those who committed air piracy resulting in death before
    enactment of the FDPA.
        Let me briefly discuss the circumstances that brought this
    issue to light. On September 29 of 2001, the United States
    obtained custody of Zaid Hassan Abd Latif Safarini, the
    operational leader of the deadly attempted hijacking of Pan Am
    Flight 73, a crime which occurred on September 5, 1986 in
    Karachi, Pakistan. Safarini personally executed the first
    United States citizen, and after a 16-hour standoff he and his
    fellow hijackers opened fire on approximately 380 passengers
    and crew on board Pan Am 73, attempting to kill all of them
    with grenades and assault rifles. In 1991 Safariniand his co-
    defendants were indicted by a grand jury in the District of
    Columbia, and after being brought to the United States for
    trial in 2001, the prosecutors filed papers stating the
    Government's intention to seek the death penalty against
    Safarini. The district court, however, ruled that the
    Government could not seek the death penalty in this case or by
    implication in any other air piracy case from the pre-FDPA
    period, essentially because Congress had not made clear which
    procedures should apply to such prosecution. In its ruling, the
    court noted that at the time it passed FDPA in 1994 Congress
    does not state any intention as to whether the new capital
    sentencing procedures should be applied to air piracy offenses
    occurring before enactment of the FDPA----
        Mr. Coble. If you would rap up pretty soon, Mr. Sabin.
        Mr. Sabin. Section 103 of this bill addresses the issues
    identified by the district court in the Safarini case by
    explicitly stating that Congress intends for the provisions of
    the FDPA to apply to this category of defendants, while also
    explicitly preserving for such defendants the two provisions of
    the Antihijacking Act.
        I thank the Committee again for holding this hearing and
    considering this legislation. The Department very much wants to
    work with Congress to ensure that those who commit serious
    terrorist crimes are punished to the fullest extent under the
    law no matter how long it takes to see that justice is done.
        [The prepared statement of Mr. Sabin follows:]
                      Prepared Statement of Barry M. Sabin

        Mr. Coble. The gentleman's time has expired.
        Mr. Marquis.

        TESTIMONY OF THE HONORABLE JOSHUA K. MARQUIS, DISTRICT
                    ATTORNEY, CLATSOP COUNTY, OREGON

        Mr. Marquis. Thank you, Mr. Chairman. Thank you for
    inviting me here today.
        As you have indicated, I am from Astoria, the classic
    county. It is where Lewis and Clark ended their trail 200 years
    ago. And my wife's family is from your State, and she
    constantly complains about the rain all the time, so--but you
    are all welcome to come.
        I have been a trial lawyer for 20 years, and I've had the
    unusual experience of having served as lead counsel as both a
    prosecutor and as a defense attorney in capital cases. I have
    co-authored a book on the death penalty, and I debate this
    subject around the United States and Europe. And with all due
    respect to the Chair, I am a lifelong Democrat. I have never
    voted for a Republican for President, and probably won't.
        Mr. Coble. Mr. Marquis, as Mr. Scott will tell you, he and
    I get along--and Mr. Delahunt as well, and Mr. Conyers. We all
    get along pretty well, despite their shortcomings.
        Mr. Delahunt. No apologies here.
        Mr. Marquis. Well, I mention that only to make clear that I
    think this discussion transcends traditional liberal
    conservative or Republican-Democrat issues. There needs to be
    something very vigorous in a discussion as serious as the death
    penalty, and when we're talking about the State taking lives,
    even particularly those of terrorists. And there are people of
    good will on both sides of this issue, but it is very critical
    that we have an honest debate and, as Mr. Scott says, I am here
    to talk today about deterrence primarily.
        In my written statement I detail what I consider a series
    of urban legends that exist about the death penalty in the
    United States. Basically the death penalty is crowded with
    innocent men--mostly men, there's a few women. Nothing could be
    further from the truth. The capital justice system in the
    United States, like all other parts of the system, is not
    without its faults. There is no human endeavor that is not.
        A death sentence is handed down in the United States, since
    1976, in approximately one out of every thousand murders. So we
    are talking about a very rare occasion--and it should be a rare
    occasion. Even Judge Jed Rakoff of the U.S. District Court of
    New York, who ruled the death penalty unconstitutional because
    he claims so many innocent people might be executed, has
    conceded that the number is about 30 of the 8,000 people
    sentenced to death since Gregg in 1976. That would be the error
    rate at about, I think, one-third of 1 percent. And frankly,
    you have a better chance of being killed by your pharmacist or
    elective surgery than you do of a faulty death penalty. And as
    the Chairman mentioned, the number of people who have been
    found innocent, who have later found out to be executed--and
    there were those before
        1976--that number since 1976 is zero, despite very hard
    work by a lot of death penalty opponents to try to prove that.
        Now even more compelling, I think, in the context of this
    hearing, is what will happen if we fail to condemn the worst of
    the worst in our society. There is a study just out by a very
    noted liberal or progressive professor from the University of
    Chicago--I believe, in fact, he is a colleague of Professor
    Harcourt--named Cass Sunstein, who has just published a very
    provocative paper called, ``Is Capital Punishment Morally
    Required?'' and he cites an increasing cluster of studies which
    show a clear deterrent effect between the death penalty and
    reductions in murders, and asks, what will we say to the
    families of murder victims when we could have prevented those
    people's deaths? And he makes the point more eloquently than I
    can that we have about 50 executions a day in the United
    States, and they are conducted very capriciously and they are
    not conducted by the Government.
        Unfortunately, we do know the names of people, innocent
    people killed as a result of our failure to have the death
    penalty. Ask the families of Kenneth McDuff's victims from
    Texas on death row; out again, killed seven people. Or I am
    sure Attorney General Lungren remembers Robert Massey in
    California, on death row, released; he rewards the man who
    gives him a job by killing him. He was eventually put to death.
        In my written testimony, I detail a popular movie and play
    called ``The Exonerated,'' which claims to chronicle the story
    of six people on death row who are now off death row who they
    claim to be innocent. The problem is that two of those two
    people pled guilty, and the third one is not available to do
    press tours right now because he's doing time in New York for a
    murder he pled guilty to, which is identical to the one for
    which he was acquitted, and for that reason he was exonerated.
        There is a very good reason that the opponents of the death
    penalty use words like ``exonerated'' and ``innocent.'' they
    are very powerful words, they mean something very significant,
    and I think to use that word when it is not appropriate
    dishonors the names of the people who really were innocent. And
    Mr. Scott will point out there have been people who have been
    on death row who have been innocent, and that is something we
    need to work very hard against.
        I see that I have very little time remaining. I want to
    briefly touch on the issue of race because I think it is very
    important.
        There is also a very common belief the death penalty is
    inherently racist. And I recommend a study, again by a group of
    academics who are against the death penalty, from Cornell
    University last year who showed that the traditional theories
    that the so-called South is a death belt is simply not true. In
    fact, States of the Confederacy tend to fall below the average.
    Oregon, my State, is just above, and Texas is just below. The
    States with the highest rates of death penalty are Ohio and
    Delaware and Nevada.
        The larger issue is how we can achieve a flawless system,
    and I don't think we're going to be able to do that. Support
    for the death penalty does not mean that you enthusiastically
    support capital punishment. And again, the fear of offending
    perhaps the pro-life members, I am pro-choice, I amfor the
    death penalty in the same way I am for abortion; I would rather
    not see abortions and I would rather not see capital punishment
    but I think it is something that is a necessity.
        Thank you very much for inviting me today.
        [The prepared statement of Mr. Marquis follows:]
                    Prepared Statement of Joshua K. Marquis

        Mr. Coble. Thank you very much, Mr. Marquis. And for my
    geographic edification, Mr. Marquis, from where does your wife
    hail in North Carolina?
        Mr. Marquis. Charlotte, sir.
        Mr. Coble. That is our largest city.
        Mr. Marquis. And my parents went to school at Black
    Mountain.
        Mr. Coble. I know it well.
        Mr. Eisenberg.

         TESTIMONY OF RON EISENBERG, DEPUTY DISTRICT ATTORNEY,
                       PHILADELPHIA, PENNSYLVANIA

        Mr. Eisenberg. Thank you, Mr. Chairman, and Members of the
    Committee. Mr. Chairman, for your information, my wife actually
    lives in Greensboro at this moment, and I hope to be able to
    join her there in the future.
        Mr. Coble. My district, and I will give you all the time
    you want.
        Mr. Eisenberg. Mr. Chairman, I have served as a prosecutor
    for 24 years. I am the supervisor in the law division in the
    Philadelphia District Attorney's Office. It is a group of 60
    lawyers. Many of them handle regular State court appeals, but
    more and more of them have to devote themselves exclusively to
    Federal habeas corpus work. In fact, in the last decade the
    number of lawyers handling just Federal habeas corpus review of
    State court convictions in my office has increased by 400
    percent.
        Now, too often the debate about the proper scope of Federal
    habeas corpus review comes down to disagreement about the value
    of the death penalty and the justice of imprisonment and
    punishment generally. And to be sure, many Federal courts seem
    flatly unwilling to affirm capital sentences. That is certainly
    true of my jurisdiction in Pennsylvania where almost every
    single contested death sentence litigated on habeas corpus
    review has been overturned by Federal courts; over 20 cases,
    only one has been affirmed. But the problem I want to address
    today is not simply one of results, and Federal court intrusion
    to State court convictions cannot be justified either by
    opposition to the death penalty or as vindication of civil
    rights. The truth is that whether or not they actually reverse
    a conviction, Federal habeas corpus courts drag out litigation
    for years of unjustifiable delay, creating exorbitant cost for
    the State and endless pain for the victims.
        We have detailed several of these cases in my written
    testimony, Your Honor. The most prominent and perhaps our most
    prominent death penalty defender from Philadelphia is a cop
    killer named Mumia Abu-Jamal. Now he has become a famous person
    around the world. There is a lot of disagreement about his
    alleged innocence, but we are just trying to get his case
    litigated through the courts.
        This murder occurred in 1981. It was just around the time
    when I started in the DA's office. I helped work on the trial
    of that case, and now I am working on his Federal habeas corpus
    review, and we're not close to done. Several years ago a United
    States District Court judge granted him a new sentencing
    hearing, threw out the death penalty but affirmed the
    conviction, rejecting all of his claims of innocence. That was
    in 2001--that ruling was in 2001. We appealed it, and we
    haven't even gotten close to a ruling yet. In fact, the court
    hasn't even allowed us to file our briefs in that case almost 4
    years later. That is on top of the two decades of delay we had
    before we even got to that ruling in 2001 in this case. Now it
    is closing in on 25 years, haven't been able to file our briefs
    in the Third Circuit Court of Appeals.
        We have several other cases of the same nature where cases
    sit for years waiting for elementary procedural steps to occur
    in Federal court, not just for decisions to be made, not just
    for briefs to be mulled over and carefully considered, but even
    for elementary preliminary decisions to be made about allowing
    the filing of papers. This happens in case after case, and it
    happens even in cases, as we have detailed in the written
    testimony, where the defendant himself doesn't want to
    challenge his conviction. Where even the defendant says, I want
    to give up my Federal habeas corpus appeals, the Federal courts
    will not allow him to, and lengthen and stretch out the
    litigation, despite the wishes of the defendant himself.
        Now, from talking to my colleagues around the country, I
    know that their experiences are similar, and I think that these
    cases demonstrate the inherent imbalance in the exercise of
    Federal habeas corpus review over State criminal convictions.
        Federal courts have great power simply because they're last
    in line when it comes to our cases, but they have little
    responsibility because they're so far removed in time and space
    from the circumstances of the crime and the subtleties of the
    State proceedings. Accordingly, they have small motive to act
    expeditiously or efficiently to give credit to the judgments of
    their brethren in the State courts or to consider the needs of
    crime victims.
        Bill No. 3035, the ``Streamlined Procedures Act of 2005,''
    will address all of those issues and will prevent Federal
    courts from stretching out these cases in ways that no one on
    either side of the underlying questions can really debate, it
    seems to me. Whether you are against the death penalty or for
    it, I don't know how you justify a case like Mumia Abu-Jamal
    sitting waiting for a briefing to occur for 4 years. That is
    the kind of reform that this bill will enact, and we urge your
    support.
        Thank you.
        [The prepared statement of Mr. Eisenberg follows:]
                     Prepared Statement of Ronald Eisenberg
        I am a deputy district attorney in Pennsylvania, and I am here to
    talk about what really happens when state court convictions are
    subjected to habeas corpus review in the federal courts.
        I have served as a prosecutor for 24 years. I am the supervisor of
    the Law Division of the Philadelphia District Attorney's Office, a
    group of 60 lawyers. Many of those lawyers handle regular appeals in
    the Pennsylvania appellate courts. But more and more of our attorneys
    must devote themselves full time to federal habeas corpus litigation.
    In the last decade, the number of lawyers employed exclusively on
    habeas work has increased 400%. The convictions that reach federal
    habeas review are for the most serious crimes that can be committed
    against a human being--murder, rape, violent robberies and burglaries,
    serious beatings and shootings.
        Too often, the debate about the proper scope of federal habeas
    corpus review comes down to disagreement about the value of the death
    penalty, and the justness of imprisonment and punishment generally. To
    be sure, many federal courts seem flatly unwilling to affirm capital
    sentences. In Pennsylvania, for example, almost every single contested
    death sentence litigated on habeas--over 20 cases in the last decade--
    has been thrown out by federal judges; only one has been upheld.
        But the problem is not simply one of results, and federal court
    intrusion into state convictions cannot be justified either by
    opposition to the death penalty or as vindication of civil rights. The
    truth is that, whether or not they actually reverse a conviction,
    federal habeas courts drag out litigation for years of utterly
    unjustifiable delay, creating exorbitant costs for the state and
    endless pain for the victims. Here are just a few examples of what it's
    like.

    Mumia Abu-Jamal

        Over two decades ago, in December 1981, Mumia Abu-Jamal murdered
    Officer Danny Faulkner during a traffic stop. First he shot the officer
    in the back; then, after the officer fell to the ground, he shot him in
    the face. In 2001, after twenty years of litigation, a federal district
    judge upheld the first degree murder conviction but overturned the
    sentence of death. Both sides appealed. And there the matter has sat
    for going on four years. No decision; no oral argument; not even a
    briefing schedule, which is normally the very first step in the
    appellate process.
        The defendant has become famous over all this time; he has managed
    to turn himself into a celebrity. But no matter where one comes down on
    this case, how is it possible to justify a federal habeas process that
    does not even begin to resolve an appeal--let alone actually resolve
    it--after four years' time? Even if one buys Mumia's ever-changing,
    bogus claims of innocence, why does he sit in jail while nothing
    happens? And what about the widow Danny Faulkner left behind?

    William Holland

        This kind of delay is hardly unique to high-profile cases like
    Jamal. William Holland is not famous. Holland broke into the home of a
    woman in 1984. He tied her up, raped her, and stabbed her repeatedly.
    The victim was 71 years old. Holland had two full rounds of appeals in
    state court, but his claims were unsuccessful. A federal court judge
    nonetheless threw out his death sentence in 2001. The prosecution
    immediately appealed. And ever since, the federal appeals court has
    been dallying about what issues it will allow the defendant to raise--
    if and when it ever gets around to looking at any. No briefs have been
    filed, no argument has been held, no decision has been rendered.

    Joseph Kindler

        In 1982, Joseph Kindler kidnapped a witness who was scheduled to
    testify against him in a burglary trial. Kindler beat the man over the
    head with a baseball bat, hit him with an electric prod, put him in the
    trunk of a car, drove him to a river, tied a cinder block around his
    neck, and drowned him. After his conviction and sentence of death,
    Kindler sawed through a barred window and escaped from prison. He fled
    to Canada, which has no death penalty. After his arrest there, he
    escaped from prison again, and was re-apprehended only after his
    appearance on ``America's Most Wanted.'' He then fought extradition for
    several years, until his eventual (and quite involuntary) return to
    this country.
        Once back, Kindler pursued appeals, but the state courts ruled that
    he had forfeited his right to do so by virtue of his escapes from legal
    process. The federal habeas courts, to which Kindler turned in 1999,
    were more indulgent. The district court immediately granted a stay of
    execution, even though the state had not yet scheduled any execution.
    The prosecution appealed the stay, the parties filed briefs--and
    nothing happened. Two years later, after prodding by the prosecution,
    the federal appeals court finally scheduled oral argument in 2001,
    vacated the stay of execution, and sent the case back to the lower
    court to consider the legal claims that had been rejected by the state
    courts.
        True to form, the lower federal court then overturned Kindler's
    death sentence, after two more years of litigation. The state appealed
    this 2003 ruling, and the case has now been pending on appeal for
    another two years.

    Donald Hardcastle

        During a burglary in 1982, Donald Hardcastle murdered an elderly
    couple and set their house on fire. Each victim had been stabbed over
    30 times. Hardcastle unsuccessfully appealed in state court, two
    separate times. He started a federal habeas action in 1998, and three
    years later the federal judge threw out the conviction entirely. We
    challenged that ruling and received a partial victory--after another
    three years of litigation--when the federal appeals court told the
    district judge to start over, ruling that he should at least have
    granted us a hearing before automatically accepting all the defendant's
    factual allegations as true.
        By then it was the year 2004. After yet another adverse ruling by
    the district judge, we appealed again. The appeals court has not yet
    allowed briefing, and there has been no action whatever on this case
    for the past six months--a period of time longer than many appeals take
    from start to finish.

    Brian Thomas

        Brian Thomas sexually assaulted and murdered a woman in 1985, with
    a crutch. The crutch was used to penetrate the victim's body through
    the vagina and rectum, while she was still alive, causing a massive
    tear that extended into the chest cavity. Thomas was convicted and
    sentenced to death, and the sentence was upheld through two separate
    rounds of appeal in state court.
        Thomas filed a federal habeas petition in 2000. There was then
    briefing, counter-briefing, and counter-counter-briefing before the
    federal district judge, which took three years. At that point the
    federal judge took no action on the matter at all for another year and
    a half. Just this month the habeas judge finally issued an order. But
    the order neither grants nor denies the habeas petition. Instead the
    judge has merely scheduled the case for oral argument--18 months after
    the last briefs were filed with him.

    Michael Pierce

        Federal habeas litigation ensures undue delay not only at the
    expense of victims and prosecutors, but even, in many cases, against
    the wishes of the defendants themselves. Michael Pierce is one such
    case. Pierce repeatedly argued with his parents and threatened to kill
    them. After they kicked him out of their house, he set it on fire with
    a can of gasoline while they were inside. His mother and father died,
    along with his 95-year-old grandmother. The crime occurred in 1989.
        From the time of the trial, Pierce declined to make the usual claim
    in capital cases--mental infirmity. He chose not to allow his lawyers
    to secure records or experts for the purpose of creating a
    psychological defense. The state courts upheld his conviction and
    sentence, ruling that Pierce's lawyers did not act improperly by
    accepting rather than overriding his decision.
        On federal habeas corpus review, initiated in 2002, a new set of
    defense lawyers attempted to circumvent Pierce's desires and the ruling
    of the state courts. At the lawyers' request, a federal judge issued an
    order directing state corrections officials to remove Pierce from
    prison and transport him to a hospital chosen by the lawyers, to
    undergo testing by experts hired by the lawyers. The judge thereafter
    required state officials to place Pierce in an involuntary mental
    health commitment.
        All this was done without any previous finding that Pierce was
    incompetent, or any hearing concerning his mental status. Indeed the
    habeas court initially entered its order ex parte--without any notice
    to the prosecution, or even to the defendant. The court explicitly
    directed the state prison officials to keep the whole affair secret
    from prosecutors. We found out about it only after the ex parte order
    was inadvertently placed on the public court docket. We then appealed.
        Shortly after the appeal was filed, the federal court directed the
    parties to address as a preliminary matter whether the timing of the
    appeal was procedurally proper. That was in March 2004. Since then, a
    period of 15 months, the appeal has remained pending; in fact the court
    has been completely silent, making no decision about whether it will
    even let the appeal proceed. If the appeal is dismissed, Pierce will be
    automatically subject to the district judge's orders, and the court
    presumably will, at some point years in the future, rule on the
    sentence.

    Hubert Michael

        Hubert Michael's is another case illustrating the intrusiveness of
    the federal habeas process. In 1993, Michael kidnapped a 16-year-old
    girl and took her to a remote rural area. There he shot her with a .44
    magnum handgun: once in the chest, once in the back, and once in the
    back of the head. His explanation for the killing was that he felt
    resentment toward women generally because he had been charged in an
    unrelated rape case.
        At trial, after an extensive colloquy, Michael chose to plead
    guilty to first degree murder. Later, at a separate sentencing hearing,
    and after consultation with counsel, he elected not to present
    mitigation evidence, and received the death penalty. On his automatic
    direct appeal, he indicated his desire that the sentence be affirmed. A
    collateral petition was subsequently filed in state court on his
    behalf. Michael sought to withdraw it, and after a hearing determined
    that he was fully competent, his request was granted. On appeal the
    state supreme court, in an abundance of caution, addressed and denied
    as meritless all the claims raised by counsel.
        Meanwhile Michael's attorneys filed a federal habeas petition on
    his behalf. He sent letters to the habeas court asking to withdraw the
    petition and dismiss counsel. The federal court insisted on another
    mental health review. After three more years of litigation, the court
    found that Michael was indeed competent, and dismissed his habeas
    petition as requested.
        The federal appeals court refused to accept this result. The court
    appointed counsel for Michael over his objection, and asked him again,
    after warning him of the consequences, whether he wished to withdraw
    his appeals. Michaels said clearly that he did. Apparently that was the
    ``wrong'' answer. The appeals court responded with a ruling that, since
    Michael had a lawyer, his own desires must be disregarded, and his
    habeas corpus petition had to proceed. For good measure the appeals
    court told the district judge to ignore any future similar assertions
    by Michael. That is where the matter stands, after 12 years of
    insistence by Michael that he does not wish to challenge his
    conviction.

    Lisa Lambert

        The case that perhaps best epitomizes intrusiveness and delay by
    federal habeas corpus courts is not even a death penalty. Lisa Lambert
    was a high school teenager whose former boyfriend had transferred his
    attentions to another girl. Lambert was furious. She began to stalk and
    harass the other girl. Finally, just before Christmas in 1991, Lambert
    entered the victim's home with two cohorts in tow and confronted her.
    Then she slit her throat. Lambert was convicted of first degree murder.
    Her appeal in state court was denied.
        Lambert filed a federal habeas petition in 1996, and the federal
    judge promptly appointed her a high-powered law firm. Within days of
    the filing of an amended petition, the court ordered a conference and
    scheduled an evidentiary hearing--even though none of the legal claims
    had yet been raised in state court, as required by law. Within three
    months (an amazing speed record in a habeas case) the judge had
    overturned Lambert's murder conviction and released her onto the
    street. In doing so he declared her actually ``innocent''--even though
    she admitted that she had participated in the crime, and merely
    quibbled about the degree of her culpability. The habeas judge also
    explicitly condemned the state prosecutor and police, accused them of
    gross misconduct, and attempted to initiate a federal criminal
    investigation against them.
        On appeal, the federal appellate court reversed, ruling that
    Lambert had to go back to state court first. The state trial judge--who
    is now himself a federal judge--then held a months-long evidentiary
    hearing, and wrote a 200-page opinion. In it he meticulously examined
    and debunked the various assertions that had been put forth by Lambert
    and so easily accepted by the federal habeas judge. The state judge's
    conclusions were in turn upheld in an 80-page opinion of the
    Pennsylvania appellate court.
        Lambert then came right back to federal habeas court. There the
    previously assigned judge announced his intention to ignore everything
    that had happened in state court, and to release the ``innocent''
    defendant all over again. In the end, however, the judge was compelled
    to disqualify himself. Another judge was assigned. This judge upheld
    the conclusions of the state court, and the federal appeals court
    followed suit. Four weeks ago, the United States Supreme Court denied
    review--finally bringing the 1996 habeas action to a close.
        The result was the right one in the end--but it took nine years,
    thousands of attorney hours, and unimaginable anguish to the victim's
    parents and family to undue the damage caused by the original federal
    habeas judge.
        These cases--and they are typical of my colleagues' experiences in
    other parts of the country--demonstrate the inherent imbalance in the
    exercise of federal habeas review over state criminal convictions.
    Federal habeas courts have great power, simply because they are last in
    line. But they have little responsibility, because they are so far
    removed in time and space from the circumstances of the crime and the
    subtleties of the state proceedings. Accordingly, they have small
    motive to act expeditiously or efficiently, to give credit to the
    judgments of their brethren in state courts, or to consider the needs
    of crime victims.
        The only way that balance can be restored is by Congressional
    statute. H.R. 3035, the Streamlined Procedures Act, will do much to
    limit overreaching by federal habeas courts, while still providing an
    appropriate forum for criminal defendants raising legitimate
    constitutional challenges to their convictions. Section 2 of the bill,
    for example, requiring dismissal with prejudice of claims that have not
    been ``exhausted'' in state court, will help prevent another Lisa
    Lambert abuse, where the federal judge improperly granted relief on the
    basis of claims that the state courts had never had a chance to
    consider.
        Similarly, Section 4 of the bill, concerning claims that were
    procedurally defaulted in state court, will address cases like Joseph
    Kindler, who was readily able to secure relief in federal court despite
    forfeiting his right to review by escaping from prison every chance he
    got.
        Section 8, establishing time limits for federal habeas appeals,
    would address the indefensible delay that routinely occurs during the
    appellate process in cases like Mumia Abu-Jamal and William Holland.
    And Section 9, which effectively reactivates the special provisions for
    capital sentences that were first put in place by the 1995 AEDPA
    legislation, will provide at least a semblance of judiciousness when
    death penalties are challenged in federal habeas court, as in the Brian
    Thomas case.
        Other notable provisions of the bill include Section 11, which
    would prohibit the kind of secret, back-door rulings that occurred in
    the Michael Pierce case, and Section 12, which will require federal
    courts to afford the same rights to victims of state crimes that are
    now statutorily mandated for victims of federal crimes.
        These and the other sections of the Streamlined Procedures Act
    address distortions of the habeas litigation process that cannot be
    justified under the central principle of federal habeas review: comity
    between the state and federal judicial systems. The substance of H.R.
    3035 has been endorsed by the Pennsylvania District Attorneys
    Association, the Attorney General of Pennsylvania, and the Pennsylvania
    Chiefs of Police Association. I am sure it will receive similar support
    in other jurisdictions. The bill merits the support of this Committee
    as well. Thank you.

        Mr. Coble. Thank you, Mr. Eisenberg.
        Professor Harcourt, you are going to be our clean-up
    hitter, but I am going to ask you to suspend for a moment. We
    have this series of votes on the floor. And gentlemen, I hate
    to inconvenience you all and those in the audience, but I think
    it is going to take close to an hour. We have one 15-minute
    vote, and I am told six 5-minute votes. So if you all will just
    rest easy, and we will be back as soon as we can. We will
    momentarily be in recess.
        [Whereupon, at 1:40 p.m., the Subcommittee was recessed,
    subject to the call of the Chair.]
        [2:55 p.m.]
        Mr. Coble. Professor, you are recognized for 5 minutes.

      TESTIMONY OF BERNARD E. HARCOURT, PROFESSOR OF LAW/FACULTY
          DIRECTOR OF ACADEMIC AFFAIRS, UNIVERSITY OF CHICAGO

        Mr. Harcourt. Thank you, Chairman Coble, Ranking Member
    Scott, and Members of the Committee for inviting me to comment
    on H.R. 3035, the ``Streamlined Procedures Act of 2005.'' I
    have submitted a full statement that addresses in detail the
    specific problems with the provision of this bill. I have also
    prepared a statement. But before I begin, let me refocus our
    attention on what precisely we are talking about here.
        H.R. 3035, the bill under consideration today, strips
    jurisdiction from all Federal courts to review all Federal
    habeas corpus claims in State death penalty cases. Now there is
    one precondition and there is one limited exception. The
    precondition is that the United States Attorney General
    certifies that the State provides competent counsel in State
    post-conviction. And the one limited exception is a claim of
    innocence. And I say it's extremely limited because it's only
    for claims of DNA evidence. It is only in cases where no
    reasonable fact finder would find the petitioner guilty of the
    offense. So with that precondition and with that limited
    exception, there's no more Federal habeas corpus in State death
    penalty cases.
        In addition, the provision has a number of other provisions
    that are equally radical and that apply to all criminal cases,
    not just death penalty cases, but ordinary drug offenses, white
    collar crime and any other criminal case.
        Now I would like to emphasize today three central problems
    with this bill.
        First, contrary to the title of the legislation, the
    Streamlined Procedures Act will do nothing to streamline the
    Federal appeals process, but will bog down the Federal courts,
    actually delaying justice to victims of crime. This is a
    radical measure that would overturn a whole series of Supreme
    Court cases.
        Congressman Conyers mentioned three cases earlier. When I
    go through the bill, I see five Supreme Court cases that are
    overturned by this bill: Rhines v. Weber; Wainwright v. Sykes;
    Carey v. Saffold; Lindh v. Murphy; and Ohio Adult Parole
    Authority v. Woodard. That is going to trigger spawn a huge
    round of Constitution litigation about Federal habeas corpus
    that will consume the Federal courts and the United States
    Supreme Court for at least a decade. It's going to complicate
    and delay the litigation and it's going to invite
    constitutional challenges. The reason very simply is that the
    bill strips Federal Court jurisdiction to determine many
    Federal issues and undercuts the Supreme Court's efforts to
    clear up uncertainties regarding the reform package that
    Congress enacted in 1996, the Antiterrorism and Effective Death
    Penalty Act, the AEDPA.
        Now it's taken approximately a decade for the Federal
    courts and for the United States Supreme Court to begin to iron
    out what Congress did in the AEDPA and to render it somewhat
    functional, well understood, and applied. Just this term, just
    this week, we have had a number of decisions from the United
    States Supreme Court trying to interpret the AEDPA from 1996.
    It has literally taken a decade. And this legislation is going
    to do the same thing and provoke the same decade-long round of
    interpretive schedules and constitutional challenges.
        Second, the Streamlined Procedures Act undermines the
    recent bipartisan action by Congress to address inaccuracies in
    the criminal justice system. I'm referring specifically to the
    Innocence Protection Act, which was enacted as part of the
    Justice for All Act, and which was a bipartisan 5-year effort
    that was voted 393 to 14 in this House. It passed by voice vote
    in the Senate before being signed by President Bush in October
    of 2004. The passage of the Innocence Protection Act was
    significant because it demonstrated the sense of Congress that
    we must provide additional safeguards to protect against
    inaccuracies and injustice in our criminal justice system, not
    to eliminate long-established principles concerning Federal
    review of criminal cases.
        And it's important to note also that some of the provisions
    in the bill H.R. 3035 are in direct conflict with the IPA. For
    instance, in the IPA, a petitioner is entitled to DNA testing
    if it may produce new evidence that would raise, quote, ``a
    reasonable probability of innocence.'' In contrast, under the
    SPA, the bill we're looking at today, if the Attorney General
    approves the State system for post-conviction representation, a
    petitioner can't get relief unless he establishes by clear and
    convincing evidence a different kind of standard, his
    innocence. So there are conflicts between those two bills.
        Third, the Streamlined Procedures Act would increase the
    risk that wrongfully convicted petitioners would be executed or
    languish in prison. Many of the proposals in this bill would
    preclude claims brought by wrongfully convicted prisoners. By
    closing the door on the underlying Federal claims that support
    evidence of actual innocence, this legislation effectively
    closes the door on habeas corpus to actual innocent prisoners,
    possibly some on death row.
        Now the stringent provisions of the Streamlined Procedures
    Act will result in serious harm to ordinary criminal
    defendants, especially those without lawyers who are unable to
    properly navigate the law.
        In summing up, I would like to make this critical point
    clear about the legislation. Opposition to this bill does not
    represent opposition to the death penalty. And the two issues
    should not be confused here. This bill goes much further than
    dealing just with the death penalty. It deals with all State
    crimes from ordinary drug possession all the way to accounting
    practices, and it strikes at the very heart of the checks and
    balances that makes our criminal justice system unique in this
    country and the world.
        [The prepared statement of Mr. Harcourt follows:]
                   Prepared Statement of Bernard E. Harcourt

        Mr. Coble. Thank you, Professor. And I thank each of the
    panelists. As I told you previously, we impose the 5-minute
    rule against us as well, so if you could keep your responses as
    terse as possible. And I suspect we will have a second round
    because of the interest that this matter has generated.
        Mr. Marquis, in your testimony you attach a critique of the
    Death Penalty Information Center list of persons freed from
    death row. Describe in general what the analysis shows. How
    does the analysis of the DPIC position further the debate on
    the death penalty in America? And what is meant by the term
    ``false exonerations?''
        Mr. Marquis. That summary needs to be credited to Ward
    Campbell, who is the supervising assistant attorney general in
    California who has been working on it for years. And the Death
    Penalty Information Center is a very neutral sounding group
    that is an anti-death penalty group that puts out a list, and
    it is the one that's generally acknowledged, with 115 names of
    people supposedly exonerated. What Ward did is go through every
    single case to see whether or not there really was evidence of
    innocence. And what it turns up is that in a majority, if not a
    very large number of the cases, that there is very little
    evidence of actual innocence. And that in fact, many other
    cases, there is considerable evidence of guilt.
        My personal favorite is a guy named Jay Smith from
    Pennsylvania, who was off death row and his case thrown out. He
    then sues the Pennsylvania State Police. And the Third Circuit
    Court of Appeals, not known for its conservatism, throws out
    his case and says, even if the prosecutor misconducted himself,
    we are still convinced you are guilty. It goes to the issue I
    spoke of, using the word ``innocent'' and ``exonerated'' when
    you are talking about people really has to be done very
    carefully. And Mr. Scott talked about people exonerated by DNA.
    We need to know how many that is. It's 12 people.
        Mr. Coble. Mr. Eisenberg, in Professor Harcourt's
    testimony, he asserted that the Streamlined Procedures Act
    would complicate the litigation of all criminal cases,
    especially death penalty cases, and delay resolution of these
    cases at the expense of victims and their families. Do you
    agree with this assessment?
        Mr. Eisenberg. Mr. Chairman, I am heartened that we
    recognize that this delay is a concern because of the
    difficulties it causes for victims and their families. I wish
    that more Federal courts were cognizant of that. It's certainly
    not true that this bill will delay things, because in the
    absence of this bill we face endless delay. Nothing has been
    resolved. Nothing has been ended. The delays that we face are
    only growing, because it's not a question of the Supreme Court
    cleaning up this or that little area of law.
        I argued in the Supreme Court just a few months ago--and
    again I did last year, and we expect to see more cases go there
    in the future, whether or not the law is changed--we are going
    to be facing lengthy rounds of litigation in the lower courts
    that then apply those Supreme Court cases. And judges who want
    to use those cases, however many precedents there are, in order
    to drag things out in the lower courts, they are going to be
    able to do that no matter what the statute is. That is the
    lesson of the AEDPA.
        Mr. Coble. Mr. Sabin, in addition to the provisions
    contained in this bill, are there any additional death penalty
    legislative recommendations that the Justice Department would
    like for our Committee to consider?
        Mr. Sabin. The answer is yes, Mr. Chairman. I have had a
    chance to discuss with some of the experts at the Justice
    Department. For example, under Atkins v. Virginia, where the
    Supreme Court held that the execution of a mentally retarded
    offender would violate the eighth amendment, we would recommend
    that a procedure be put into place legislatively to determine
    whether a capital defendant's mental capacity is such that a
    death sentence would be appropriate or would be foreclosed
    under the Atkins decision. There are certain notice of intent
    provisions that are required to be filed a reasonable time
    before trial, and we believe that a statutory clarification
    regarding that notice of intent, based upon a Fourth Circuit
    case, would be helpful.
        There is also certain clarification regarding the meaning
    of specific statutory aggravating factors; for example, the
    pecuniary gain aggravating factor, that I think legislation
    would be helpful. And the Justice Department on those and other
    matters would work with the Committee to make sure that the
    Committee understood the Justice Department's recommendations,
    if appropriate, are enacted.
        Mr. Coble. Have you all conveyed that information to our
    Committee or Subcommittee?
        Mr. Sabin. I believe the discussions have occurred. I can
    follow up and make sure that some of those are specifically
    forwarded to the Subcommittee.
        Mr. Coble. I thank you, sir. My 5 minutes have expired, but
    I didn't see the red light. But I will recognize the
    distinguished gentleman from Michigan, Mr. Conyers, for 5
    minutes.
        Mr. Conyers. Thank you very much, Mr. Chairman. We seem to
    have three witnesses that are, I think, in agreement with each
    other. So I turn to Professor Harcourt. Will we face endless
    delay if we don't enact this--one of these two measures that
    are before us? Could you give us your views on that, sir?
        Mr. Harcourt. We are in the process of having ironed out
    basically the provisions of the AEDPA. The Supreme Court has
    resolved most of the questions that are outstanding. And at
    this point, the Federal death penalty and ordinary criminal
    cases that are going through habeas corpus should be proceeding
    at a much more rapid pace as a result of the AEDPA. It appears
    that there are, in fact, less cases that are being overturned
    by Federal courts as a result of the reforms that--the package
    of reforms that were passed in 1996. And so I think it's pretty
    clear there is less and less delay as a result of that reform.
        Mr. Conyers. Thank you very much. Now let's get back to the
    constant debate that will probably not be resolved in this
    Subcommittee today. But is the death penalty a deterrent from
    your studies?
        Mr. Harcourt. Well, on the question of deterrence, I think
    it's far too early to make any conclusions about the validity
    of the studies, of the new econometric studies.
        Mr. Conyers. Sorry to hear that, because I had thought I
    was able to say that there is no deterrent effect.
        Mr. Harcourt. The new studies that have come out from the
    economists, et cetera, are kind of divided on the issue of
    deterrence. There are some that suggest there is a deterrent
    effect to the death penalty and there are others that suggest
    that if you cut it in different ways, there isn't a deterrent
    effect to the death penalty and, in fact, there is a
    brutalizing effect to executions. We have had cycles of social
    science debates about issues such as deterrence. In the 1970's,
    there was significant debate over the Ehrlich study, which
    resulted in the National Academy of Science report that
    essentially said there is no evidence of deterrence.
        What we have right now is a new series of studies. And
    frankly, the honest truth is that it is much too early to form
    any conclusions based on those studies. The death penalty is a
    highly ideological and political debate and that extends into
    the social sciences.
        Mr. Conyers. Counsel--our counsel, Bobby Vassar, has handed
    me a letter from assistant Federal Defender John Rhodes, sent
    to him this month from Montana, Federal Defenders of Montana,
    in which I will read the operative sentence: The 159 cases to
    which I referred were those in which post-conviction DNA
    testing has yielded conclusive proof of innocence. Of these 159
    people, 14 have been sentenced to death, 39 to life
    imprisonment, and others to various terms.
        And I was wondering, does that comport with your
    understanding of how these statistics are falling out?
        Mr. Harcourt. Yes, Congressman Conyers. My number is 156. I
    have 156 DNA exonerations around the country. 156. We are
    talking about proof based on DNA that this wasn't the right
    person. Of those, my numbers were 12 death penalty DNA
    exonerations. I think you mentioned 14. We might be off by a
    year or so. I have approximately 12 death penalty DNA
    exonerations. The important point to understand here, of
    course, is in the exoneration context, you have to distinguish
    DNA exonerations from non-DNA exonerations. And when you don't
    have DNA exonerating someone, then it's practically impossible
    to get everybody on board to agree that the person was actually
    innocent. There are going to be very few cases where there
    isn't--there was evidence that resulted in a conviction
    originally and there is going to be recantation, Brady evidence
    that reveals new suspects, et cetera. But those are the
    difficult cases where, in fact, there is proof beyond a
    reasonable doubt of innocence. But there is going to be
    possibly lingering doubt, particularly like someone like Mr.
    Marquis. If you look at the list, the ones that are going to be
    challenged are the ones where there isn't a clear case of DNA
    evidence, but you are going to see that actually beyond a
    reasonable doubt that there's evidence in the case.
        I represented someone myself who was innocent. It wasn't a
    DNA case. And I can tell you, I sat there with the two
    investigators from the Alabama Bureau of Investigation and we
    were trying to resolve, after we had proven his innocence to
    their satisfaction, were trying to resolve who had committed
    this crime. I had the ABI with me working on this case. I can
    assure you there are still people who are going to have
    questions about that case because there wasn't DNA.
        Mr. Coble. If you could wrap up so we can move along. The
    gentleman's time has expired.
        Mr. Harcourt. If you look at the list, you need to go
    through them case by case. In the case of Ronnie Burrell, it
    suggests there wasn't evidence. In fact, the motion that the
    prosecutor filed in that case said there was a total lack of
    credible evidence linking Graham and/or Burrell to the crime.
    So it's always when there isn't DNA evidence, there's always a
    way to say that it's not a case of innocence. But we have had
    over 160 of those cases as well.
        Mr. Conyers. Thank you, Chairman Coble, for your unusual
    generosity.
        Mr. Coble. Thank you, Mr. Conyers. I appreciate that.
        In order of appearance, the gentleman from California, Mr.
    Lungren, is recognized for 5 minutes.
        Mr. Lungren. Thank you, Mr. Chairman, for your customary
    courtesy. And----
        Mr. Coble. And I thank you for that.
        Mr. Lungren. I was Attorney General for 8 years. We did as
    much habeas corpus as any office in the country would. Ward
    Campbell worked for me for 8 years. I hope we put this in
    proper context.
        The suggestion has been made that somehow habeas corpus is
    the only way we protect defendants' rights. Capital cases, you
    extend more rights to the defendant than any other type of case
    you've got. You have bifurcated trials. You have to prove guilt
    or innocence. Then you go to the sentence. That sentence can be
    overturned by the judge. At least in California, you have
    immediate appeal, combined appeal, both direct appeal and
    habeas to the Supreme Court automatically. Whether the
    defendant wants it or not, it is done.
        Then you go into the Federal system. And let us remember
    what we are talking about. As Chief Justice Rehnquist once said
    in a dissent, the trial should be the main event unless we are
    willing to give up the trial by jury as the essence of our
    criminal justice system. Frankly, the Federal habeas corpus is
    the most removed process that comes in after the fact. By and
    large, they don't have an opportunity to see the witnesses to
    judge their demeanor to see whether or not they are credible.
        And I never could understand why folks believe that when a
    particular judge who happened to be sitting on a Federal
    District Court in Los Angeles, named Judge Lucas, became the
    chief justice of the California Supreme Court, suddenly he lost
    all wisdom and direction because he no longer dressed in a
    Federal Court but now dressed in the California Supreme Court.
        Carol Fornoff testified before this Subcommittee that her
    13-year-old daughter was murdered in 1984 and the last State
    court appeal was in 1992. The killer filed his first habeas
    petition in U.S. District Court, where it remained for 7 years
    before it was dismissed. Then the Ninth Circuit sent the case
    back to the district court for more hearings, where it remains
    today. Someone--Professor Harcourt mentioned the brutalizing
    effect of this. What about the brutalizing effect on the
    families? The Supreme Court told us in the Turpin case that it
    was up to Congress to write the procedures for habeas corpus
    and to make any changes. They invited the Congress to look at
    it and make changes. Contrary to any suggestion that this is
    out of our area of expertise, I would cite the Turpin case
    which recognized it's exactly in there.
        I don't know about all the studies you are talking about. I
    can talk about a case that I argued before the United States
    Supreme Court. It was called the Sandoval case and involved a
    murderer who killed four people, two in a gang-related
    incident, and then later on two people who had overheard what
    he talked about, who were going to be witnesses, and he killed
    them. We won the case in the Supreme Court. It went back. And,
    ultimately, the death penalty was set aside for other reasons.
    It had nothing to do with exoneration. The guy killed four
    people. Four people.
        I guess my question, Mr. Eisenberg, to you would be, there
    has been a suggestion we don't need this. There has been the
    suggestion that you know, if we do this, the courts are going
    to screw it up again and going to take time to interpret it.
    The suggestion is that we in Congress ought to tie our hands
    and not do anything because it's going to add more delay. I
    know the Ninth Circuit. That is one of the reasons I introduced
    this bill.
        The Ninth Circuit, despite what we did in 1996--and my
    office wrote the language which was adopted by the Congress at
    that time--the Ninth Circuit has managed to, in exhaustion
    cases and procedural default cases, to get around what I think
    was the intent of the law to have these interminable delays. So
    I am familiar with the Ninth Circuit.
        Could you tell me in your experience, even though we passed
    that law in 1996 to try and take care of that, why would we
    need something such as suggested in the bill?
        Mr. Eisenberg. Because there were some judges, Congressman,
    who didn't like what was in that bill. I'm sure they won't like
    what is in this one. It is the job of the Congress to channel
    the law in the direction you think it ought to go.
        Procedural default, for example, well established concept.
    We have thrown it around. It's a habeas term. What a Federal
    judge in my neck of the woods does with it is to say, well,
    there was a State procedural default where the defendant didn't
    comply with some rulings in State court, but I don't like that
    rule so I'm going to call it inadequate or insufficient in some
    way, and then I get to ignore--and therefore I get to ignore
    what the State court did, and I get to make my own decision
    about the legal questions here. And that kind of litigation
    sounds simple describing it. That kind of litigation takes
    years in my part of the country and from my discussion with
    others.
        The same is true around the United States. It is not a
    question of whether the concept can be simply uncontroversial,
    described between habeas lawyers. It is a question of what the
    courts then do with that in order to apply it in particular
    cases. And however well established the concept is, if the
    court wants to use it as a means of delay and as a means of
    getting around a State court, it can. If Congress takes that
    away, that has a positive impact.
        Mr. Lungren. Sounds like a war of attrition.
        Mr. Coble. Gentleman's time has expired.
        After we adjourn this hearing, we are planning to mark up
    the Secure Access to Justice and Court Protection Act of 2005.
    So if you all could remain while we do that, I would be
    appreciative.
        The distinguished gentleman from Massachusetts. And I want
    to say to him that prior to your arrival, I spoke favorably
    about your work on the DNA legislation the last session. You,
    and Chairman Sensenbrenner was involved, as was Mr. Scott and
    I. Good work, and I'm pleased to recognize you.
        Mr. Delahunt. Thank you very much, Mr. Chairman. I would be
    interested in whether Mr. Sabin, Mr. Marquis, and I can't see
    that far, Mr. Eisenberg. You are familiar with the Justice for
    All Act?
        Mr. Sabin. Yes, sir. Generally.
        Mr. Delahunt. Did you support it?
        Mr. Sabin. Personally, I didn't have a chance to weigh in.
    Justice Department supported it, and we are implementing the
    victim's provision.
        Mr. Marquis. I am very familiar with it. And the National
    District Attorneys Association supported most of the parts.
        Mr. Delahunt. I am speaking about yourself.
        Mr. Marquis. Senator Smith was one of the cosponsors.
        Mr. Delahunt. I'm asking about Marquis, not about Smith.
        Mr. Marquis. I had some problems about some of the issues
    about when you describe innocence. But for the most part, yes.
        Mr. Eisenberg. Congressman, what we did in Pennsylvania is
    actually go ahead and draft our own before the Federal version
    was passed. I participated in the drafting of that. Much of it
    was modeled on the legislation that was originally introduced
    in the Congress, and I'm very glad we passed that in the
    States. In fact, while discussions were going on in Washington,
    many States passed their own DNA legislation.
        Mr. Delahunt. I noted that. And I applaud the States for
    their efforts.
        Let me just say this, Mr. Chairman. This is a very--I'm
    referring to the Streamlined Procedures Act of 2005, offered by
    my good friend and someone who I have profound respect for from
    California. But I do have very serious concerns about this.
        I guess I agree with Senator Specter who posed a question,
    why the rush, particularly when this week it was announced that
    there be a case in the fall to determine whether there is a
    constitutional right to stop an execution based upon a claim of
    innocence. And also this week, the Supreme Court ruled the
    competency of legal counsel is perhaps the most significant
    unresolved death penalty issue.
        But I would hope, Mr. Chairman, that we could have a series
    of hearings on discrete issues surrounding the Streamlined
    Procedures Act, focusing in on the issues of harmless error,
    exhaustion issues, et cetera, because this is a dramatic
    departure from the current status of the law.
        I'm not going to belabor the point. I think one point that
    really has to be stressed, you know, people--there are a few
    people that are probably watching these proceedings, and the
    reality is--and it sounds simple, of course, to the panel--what
    we are talking about are people who are incarcerated. These
    people are not out on the street wreaking mayhem on the
    community at large. So I think to assuage any unfounded
    concerns that the American people might have in terms of when
    they listen to our Subcommittees and your answers, should be
    reassured about that.
        Mr. Lungren. Would the gentleman yield?
        Mr. Delahunt. Sure.
        Mr. Lungren. I can give examples of people who were the
    subject of habeas corpus cases with death penalties or life
    imprisonment in California who did commit murders while in
    prison. They might not have been on the street; we did see
    that.
        Mr. Delahunt. I happen to have--when I was a State
    prosecutor, I had the major penal institutions in my
    jurisdiction, and we obviously had a problem with homicides
    within our correctional facilities. But I think there's another
    point, too, that we have to be cognizant of, is that there are
    maybe 12, 13 DNA exonerations in capital cases.
        But as Professor Harcourt--I mean, how many cases are there
    when DNA is unavailable, 80 percent, 85 percent? It's in that
    neighborhood. You are all seasoned prosecutors. I think what we
    learned from the advent of DNA is it has given us a window into
    exactly what the Supreme Court is saying. The great unresolved
    issue is competency of counsel. And yes, the States have made
    progress. But I daresay anybody who has tried a lot of felony
    cases in a State court is aware of situations where it was
    clear during the course of the trial that counsel for the
    defendant just didn't have it. Just didn't have it.
        And I think we've all been--at least my experience has
    been, I indicted individuals and charged them with serious
    crimes, and subsequently found out that they, in fact, were
    innocent in very real terms.
        You know, what sets the United States apart from other
    democracies, even, is the fact that it is the main event--I
    think I heard that before, maybe it was from Mr. Lungren. It's
    not the trial. The main event really is the search for the
    truth. The search for the truth. And if there is doubt and if
    there are grounds where a habeas petition will lie, it's
    important for us to recognize that. That's just some
    observations that I would make.
        And Mr. Marquis, I always found it interesting that in
    those jurisdictions, those States that did not have--noncapital
    States, their incidents of violence, often homicide rates were
    significantly lower.
        Mr. Coble. The gentleman's time has expired, but you may
    answer the question.
        Mr. Marquis. With all due respect, Mr. Delahunt, I don't
    think that's actually correct. The two jurisdictions that come
    to mind are Michigan and the District of Columbia, none of
    which have capital punishment and both of which, Detroit and
    the District, have a terrible murder rate. I don't think there
    is a direct correlation. But this goes to the issue of
    deterrence. And there is a substantial body of study that shows
    differently.
        Mr. Delahunt. It is my understanding--and we can exchange
    correspondence on this--that of the 12 or 13 noncapital cases,
    their incidence of violence, their rate of violent crime is
    less than those States that impose the death penalty. But we
    can have that conversation via correspondence. But that has
    always been a problem that I have had. And in fact, I think I
    mentioned that once to my friend from Texas, Mr. Gohmert, who
    will have a reply.
        Mr. Coble. Information for all of you. The record will
    remain open for seven days.
        The distinguished gentleman from Florida will be recognized
    for 5 minutes, Mr. Feeney.
        Mr. Feeney. Thank you, Mr. Chairman. And as the gentleman
    from Massachusetts indicated, the search for truth is something
    we are all interested in, but hopefully the search for truth
    eventually has some finality to it.
        One of the problems with the death penalty is the extremely
    lengthy and collateral processes that go on forever. Professor
    Harcourt testified that it's his hunch that based on the last
    10 years or so of jurisprudence, that the tremendous delays are
    going to be less and less. But as I look at Justice
    Department's statistics going back to 1984, the average time
    between sentence and execution was about 73 months. As of 2003,
    that had almost doubled to 132 months.
        And for Mr. Eisenberg and for Mr. Sabin, have you seen any
    dramatic change in the length of time between sentence and
    execution in the last several years?
        Mr. Eisenberg. I will begin, Congressman.
        Yes, it's getting longer. And as far as I can tell, the
    largest limiting factor is the length of life of the defendant.
    In my State, for example, we have had three defendants who
    waived their appeals and were executed, but we have had 15 who
    died of natural causes on death row. Their cases came to an
    end. But that seems to be the only way that contested capital
    cases come to an end in some areas of the country is when the
    defendant on death row dies of natural causes. Otherwise, the
    delays are increasing, and certainly nothing about any
    resolution of any questions under the AEDPA is shortening the
    time.
        Mr. Feeney. Mr. Sabin?
        Mr. Sabin. I can't speak to specific numbers, Mr. Feeney.
    But as a general proposition, the point that Mr. Lungren made
    for closure for victims, that the process would extend on
    unnecessarily. And that if an injustice has occurred, I would
    think the offender would want that to be resolved sooner rather
    than later, so that the streamlining of the process, with
    appropriate review, would be in the interest of all.
        Mr. Feeney. Mr. Eisenberg, very quickly, you indicate that
    of the 20 cases in the last decade from Pennsylvania to go to a
    Federal court in habeas, 19 were tossed out and only 1 was
    upheld?
        Mr. Eisenberg. It is roughly along those lines,
    Congressman. And that's not to say that no cases have been
    reversed by the State courts. On the contrary, many cases have
    been reversed by the State courts, perhaps more than the number
    that have finally reached ultimate decisions in the Federal
    courts.
        Our State courts are extremely vigilant in reviewing death
    penalty cases, and many of those cases have been reversed, not
    even having to go up to the State Supreme Court, but by lower
    level State judges. Even cases that clear that complete hurdle
    of 10 or 20 years of litigation in State court and then get to
    Federal court are certainly going to be thrown out as well. We
    just don't have a realistic process.
        Mr. Feeney. Ninety-five percent of the time, the judge, the
    jury, and the entire State appellate process is simply tossed
    out on habeas by the Federal Court.
        Mr. Marquis, if you would summarize the econometric
    deterrence studies that you talked about. And by the way, maybe
    you ought to mention, theoretically deterrence may work; but if
    it's going to take us 15 years before we have an execution of a
    sentence, there may be some diminishment of the potential
    deterrent effect of a death penalty; that this bill would bring
    back some real deterrence. And I would leave it with that.
        I would like to get into the constitutional issue that has
    not been addressed. There is nothing in the Constitution that
    guarantees a collateral Federal right of habeas, which nobody
    has mentioned. But Mr. Marquis, I would let you finish.
        Mr. Marquis. Yes, the studies. I think one of the other
    Congressmen mentioned--I'm sorry, Professor Harcourt--there is
    a whole cluster that have come up in the last 5 years; one from
    Emory University, another from the University of Houston,
    University of Colorado. They're mostly by economists and
    academics. And mostly all of the people that do the studies are
    opposed to the death penalty, and they studied whether or not
    there was deterrent from actual executions. Whether moratoriums
    or pardons have an effect on murders. And all of the studies,
    literally all of them thus far, show a significant deterrence.
        And to put it in a very real sense, because I have been
    accused by defense experts of being too concrete a thinker, 17
    murders are deterred, plus or minus 7, for every death penalty
    that is imposed in the United States. That's very real to me.
        Mr. Feeney. I still have a little bit of time.
        The constitutional issue, Mr. Eisenberg. Anything in our
    Constitution guarantee any collateral, additional right of
    habeas corpus in Federal court?
        Mr. Eisenberg. No, Congressman. The words appear--the words
    ``habeas corpus'' appear in the Constitution, but they never
    contemplated anything like the 10 and 20 years' worth of
    appeals that we're talking about. There weren't even 2 years of
    appeals when those words were put into the Constitution, and in
    some cases no appeals, you had a trial. That was the main event
    because it was the only event. And I think that--it is
    inconceivable that any founder or any lawyer in the early days
    of this Republic would have imagined that appeals in criminal
    cases could go from court to court to court and take decades
    long.
        Mr. Coble. The gentleman's time has expired.
        The distinguished gentleman from Virginia, Mr. Scott, is
    recognized for 5 minutes.
        Mr. Scott. Thank you very much.
        Mr. Marquis, you indicated that one death penalty saves 18
    murders; is that from the Shepherd study?
        Mr. Marquis. Yes, it is. The main author of the study--
    sorry, I can't pronounce the person's name; but yes, it's that
    study.
        Mr. Scott. Did Professor Shepherd review her conclusions
    and conclude after that, that in the 27 States in which one
    execution occurred during the sample period, capital
    punishment, in her judgment, deterred murder in six States and
    increased murder in 13 States and had no effect in the others?
    Is that a subsequent finding of hers?
        Mr. Marquis. My understanding of what happened is that
    there was a blizzard of criticism of the study, and that--the
    argument was made that they were concentrating too much on
    States that had high execution rates, and if you took them out,
    that the rate would in fact decrease. So, I'm not sure if that
    answers your question.
        Mr. Scott. Okay. In twice as many States, the murder rate
    went up than went down because of the death penalty.
        Mr. Sabin, one of the--I'm going back and forth on these
    bills, and I didn't separate these questions by bill, but one
    of the bills has a death penalty for cases in which death does
    not occur.
        Mr. Sabin. A grave risk of death, but not death under----
        Mr. Scott. Has the constitutionality of the death penalty
    when a death does not occur--has the Supreme Court ruled on
    that?
        Mr. Sabin. I don't believe the Supreme Court has ruled, but
    it's equally applicable in treason and espionage cases under
    the statutory provisions presently in place.
        Mr. Scott. And death penalty, without a death occurring, is
    constitutional in those cases?
        Mr. Sabin. I don't know if there has been a specific
    Supreme Court case that has addressed it in the treason or
    espionage case. But the theory behind the legislation, as I
    understand it in section 104 of H.R. 3060, is that theory, sir.
        Mr. Scott. You have a retroactive application of the
    procedure. Are there cases pre-1994 for which this death
    penalty may apply?
        Mr. Sabin. If you're referring to the quote-unquote
    ``Safarini fix'' under section 103, the answer is yes, sir.
    There are a number of terrorism cases that have been charged
    where there are defendants under indictment, that it would
    directly affect where United States citizens were killed.
        Mr. Scott. You have people under indictment today that are
    not subject to the death penalty, and if we pass this bill, on
    a pending case we will allow the death penalty.
        Mr. Sabin. No, sir. In 1974 the Antihijacking Act was
    passed; in 1994 the Federal Death Penalty Act was passed. There
    were specific death penalty procedures during the time period
    of 1974 to 1994, but in the passage of the Act in 1994,
    Congress did not articulate, as interpreted by the district
    court judge in the District of Columbia, that those provisions
    specifically apply and were not extinguished with the passage
    of the new legislation.
        Mr. Scott. I understand the procedural; the procedural, you
    can do it. But I just want to know the effect of the
    legislation. You have people under indictment today that you
    cannot impose the death penalty on.
        Mr. Sabin. As the district court decision was found, yes.
        Mr. Scott. Well, you have people under indictment today
    that are not subject to the death penalty. If we pass this
    bill, you will be able to subject them to the death penalty.
        Mr. Sabin. Correct.
        Mr. Scott. Pending cases.
        Mr. Sabin. Yes.
        Mr. Scott. In the middle of the case.
        Mr. Sabin. No. They're under indictment. They're either
    in--fugitives from justice that are not in United States
    custody, or they have been apprehended and are serving a
    sentence in a foreign country, that the United States has
    sought to obtain the custody of them in order to process----
        Mr. Scott. Now, I just want to make sure we know what we've
    got before us. We have defendants in pending cases that are not
    subject to the death penalty, and we will pass legislation that
    would subject them to the death penalty. That may not
    technically be a violation of ex post facto because it's
    procedural, but procedural and substantive--I think it would be
    substantive to the ones it applied to.
        Mr. Sabin. I understand your point, sir. But the point was
    that I believe Congress had unequivocally, and the executive
    branch and congressional leaders had said that those
    individuals were subject to the death penalty during that
    period of 74 to 94, so they were clearly on notice. It's not
    like we're changing the rules after the offense has been
    committed.
        Mr. Scott. Well, if we don't pass this bill, they won't be
    subject to the death penalty; is that----
        Mr. Sabin. District court in the District of Columbia has
    interpreted congressional inaction or silence in 1994 by not
    incorporating those provisions, such that we would not be able
    to seek the death penalty.
        Mr. Scott. Was that case appealed? Is that a final
    judgment?
        Mr. Sabin. He pled guilty to three life terms, plus 25
    years, and is serving that now in a Federal penitentiary.
        Mr. Scott. And the decision of the district court was not
    appealed?
        Mr. Sabin. Correct.
        Mr. Scott. So that's the only place that's been ruled.
        Mr. Sabin. Correct.
        Mr. Scott. So in other cases, you could go try for the
    death penalty and see what happens.
        Mr. Sabin. We could. We're seeking congressional explicit
    recognition of that fact--which we believe Congress had
    previously done--but just to make sure that it is done----
        Mr. Scott. You're seeking your own alternative court of
    appeals. Okay.
        Mr. Coble. The gentleman's time has expired.
        We have been joined by the gentlelady from Texas. Good to
    have you with us, Ms. Jackson Lee. In order of appearance, the
    distinguished gentleman from Texas, Mr. Gohmert.
        Mr. Gohmert. Thank you, Mr. Chairman. Thank you,
    witnesses----
        Mr. Coble. Would the gentleman suspend? Were you here
    earlier, Mr. Chabot?
        Mr. Chabot. I was. But I will defer.
        Mr. Coble. If you were here earlier, that's my mistake; but
    I recognize the distinguished gentleman from Ohio, Mr. Chabot.
        Mr. Gohmert. I appreciated being recognized.
        Mr. Chabot. But he was a judge, I was just a lowly trial
    lawyer.
        Mr. Coble. And I will get to the Texan subsequently.
        Mr. Chabot. Okay. I want to first thank the Chairman for
    his leadership in this area. I want to thank the witnesses. I
    think we've had really excellent witnesses here today. I also
    want to thank Congressman Lungren for introducing H.R. 3035,
    which attempts to streamline the procedures relative to death
    penalty cases.
        As a longtime advocate for victims rights, I've been very
    disturbed by the length of time that it takes for a lawfully
    convicted person to go from sentencing to execution in this
    country. The average length of time between sentencing and
    execution has risen from 74 months, or 6 years and 2 months in
    1984, to a high of 143 months, or just shy of 12 years in 1999.
    And as we know, 20 years is not that rare a case in this
    country nowadays.
        Why does it take so long for these murderers to meet their
    fate? All too often the delay is a result of lengthy and often
    meritless appeals by the convicted person. In some cases, the
    convicts have had the audacity to suggest that their extended
    incarceration on death row is, in and of itself, cruel and
    unusual punishment; and, as such, that their sentences should
    be commuted. Fortunately, this so called ``lackey'' defense has
    failed in most cases, but it shows how opponents of the death
    penalty, including those sentenced to death, have attempted to
    use and abuse the court system to achieve something that they
    cannot achieve in the legislature, and that is the abolition,
    essentially, of the death penalty.
        The reason for their failure to effect change through the
    normal legislative process is obviously they lack the public
    support. Public support for the death penalty has remained
    relatively constant, with approximately 69 percent of Americans
    in favor of the death penalty and only 24 percent opposed.
        My concern here, however, is not for abstract numbers
    representing the average number of months between sentencing
    and execution; my concern is for what those numbers mean for
    the families that have already endured the loss of a loved one
    and who are forced to endure years and years of prolonged agony
    as they wait for the justice that the jury has said that they
    are due.
        Three weeks ago, this Committee heard testimony from Mrs.
    Carol Fornoff, whose 13-year-old daughter Christy was murdered
    by the maintenance man at an apartment complex near their home
    in Arizona. The maintenance man was convicted in 1985 of the
    crime and was sentenced to death. That was 20 years ago. He is
    still on death row today, having used extensive appeals at both
    the State and Federal court level to prolong this ordeal for
    Mrs. Fornoff and her family. I mean, your heart just went out
    to these people.
        Or take the case of a constituent in my district in
    Cincinnati, Mrs. Sharon Tewskberry. Her husband Monte was
    stabbed in a convenience store robbery in 1983. Mr. Tewskberry,
    who was working at the store to make a little extra money to
    send their daughter to college, managed to crawl outside the
    store to call his wife from a pay phone after he had been
    stabbed. She arrived in time to hold him in her arms while he
    died.
        The following year John Byrd, Jr. was convicted of
    murdering Mr. Tewskberry and was sentenced to die. Nineteen
    years later, after Byrd had finally exhausted every appeal at
    both the State and Federal level, including what amounted to a
    retrial in Federal court of the State law case, John Byrd was
    finally executed. Nineteen years.
        Mr. Chairman, these cases and so many others affirm that
    justice delayed is justice denied. And there are many, many
    other cases that I could cite, unfortunately I'm running out of
    time here. But this is one of the things, since I've been here
    in Congress, that has been so frustrating. And we passed the
    Antiterrorism and Effective Death Penalty Act back in 1996,
    which was supposed to make it a little easier to carry out
    these sentences, but in practice it's just not worked.
        And I would strongly encourage this Committee and the
    Congress to be serious about this issue, because there are
    families whose lives have been ripped apart, and they wait and
    they wait and they wait, and oftentimes 20 years, for justice
    to be carried out. And we have to make sure that we have an
    effective enforcement of the death penalty in this country.
        And I yield back the balance of my time.
        Mr. Coble. I thank the distinguished gentleman from Ohio.
        The Chair recognizes the distinguished gentlelady from
    Texas, Ms. Jackson Lee, for 5 minutes.
        Ms. Jackson Lee. I thank the distinguished gentleman. To
    the witnesses, thank you for your presentation. And thank you
    for the indulgence of other meetings that I had, that I may
    have not heard the entirety of your testimony. But I do want to
    acknowledge that this is a very serious issue. And I know that
    victims are disproportionately sometimes impacted by the system
    that confuses them that we call justice.
        I would only say, without making any frivolous statement,
    that the alternative to this is to simply take them out and
    shoot them. We are not that kind of society--that would be
    expedited, whether we use a firing line, whether we hang them--
    but that is not the society in which we live.
        And so I would just simply say, with the understanding of
    how we abhor the violent acts that my colleagues have spoken
    about and the victims that have suffered the rash of sexual
    predators and killers of children over the last couple of
    years, however we abhor that, the alternative to a system that
    we have that allows those charged and convicted the opportunity
    to pursue their innocence or to pursue their rights in court is
    a system by which we call democracy and constitutional, I
    believe.
        So it is interesting that we have these discussions about
    justice being delayed by a period of time. I don't know what
    the alternative would actually be.
        I do want to say to Mr. Marquis that you had in your
    testimony that you did not believe that one person--or no one
    could point to one person, single case of a demonstratively
    innocent person that has been executed in the modern era of
    American capital punishment. We know that a number of
    defendants over the years have been proven innocent by DNA.
        I would also say by the odds, that we might imagine that
    there are a number of those in the course of our history, which
    we would account for the 20th century, particularly knowing the
    number of African Americans that sit on death row that have
    gone to their death that certainly have the possibility of
    being innocent with the proper defense and resources; are you
    trying to suggest that you can't count one person that you
    believe was demonstrably innocent that had been executed in
    modern era?
        Mr. Marquis. Congresswoman Jackson Lee, if you're talking
    about post-1976, that is exactly my statement. If you're
    talking about the 20th century, there is no doubt that innocent
    people were executed in this country. But we're talking about
    the post-Gregg era. And more in particularly the last 15 years,
    because the kinds of due process protections, the kind of
    counsel--even particularly in your State, as well as others,
    that have been accorded just in the last 10 or 12 years
    represent a major improvement.
        Ms. Jackson Lee. Well, I would beg to differ with you. And
    I'm glad you cited my State.
        And Mr. Harcourt, I'm going to ask you a question before
    the light goes out, so you will be able to answer it before I
    respond to Mr. Marquis.
        In your remarks you said that you answer the proposed bill,
    the Streamlined Procedures Act of 2005, radical. If I turn the
    tables on you, they would--opponents of such would presume your
    statement to be radical. My question to you is, are you radical
    or are you right? And give us why you assess this bill to be
    radical, and why you would propose your view to be right.
        Let me just comment to him, and I would let you--yield to
    you to answer.
        I really disagree with you on that, because I do live in a
    State that is notorious for having the highest number of
    individuals on death row. I venture to say that they have the
    highest number of executions, and I would venture to say they
    are predominately minority members, since we happen to
    predominate on death row anyhow. And we've had a number of
    cases that have failed as it relates to appropriate counsel,
    the pardon process--or not the pardon process, but the process
    of review by our board of review for death penalty cases.
        So I would vigorously argue with you whether or not we have
    complied with due process procedures post-1976. And modern era,
    as far as I'm concerned, could be considered the 20th century,
    and certainly could be considered the last half of the 20th
    century, 1950 and after; and I don't think you can count your
    comments as accurate.
        Mr. Harcourt, could you answer my question about your
    assessment of the radicalness of this particular bill, and why
    you're not being radical?
        Mr. Harcourt. Yes----
        Mr. Coble. Professor, the gentlelady's time has expired,
    but you may answer the question.
        Ms. Jackson Lee. I thank the Chairman for his indulgence.
        Mr. Harcourt. We have to understand that what this bill
    does is it eliminates Federal habeas corpus in State death
    penalty cases. That's a--that wasn't done in the AEDPA
    explicitly. And it eliminates it on one precondition: that the
    Attorney General of the United States has to certify a State as
    having competent defense in State post-conviction, and with one
    extremely narrow elimination, which is slam-dunk evidence of
    innocence. Basically only DNA would satisfy that.
        So what we're talking about is in State death penalty
    cases, there will not be Federal habeas corpus, okay. I
    consider that somewhat extreme. It's not what the Congress
    envisioned with the AEDPA, and I don't think that--I think that
    it is what one could consider radical.
        In addition, eliminating procedural--eliminating cause and
    prejudice standard for procedural due process in Federal habeas
    corpus across the board, not just in death penalty cases, but
    across every single criminal case, you're eliminating the cause
    and prejudice standard which was created by Chief Justice
    William Rehnquist in 1977. It was a significant narrowing of
    the Faye v. Noya standard from 1963, which was deliberate
    bypass, okay, but it was a standard that has been in place, in
    fact, so much--in place based on federalism and comity
    concerns, so well engrained in our system of Federal habeas
    corpus jurisprudence that the AEDPA did not even address
    procedural due process.
        Mr. Coble. Professor, if you can wrap up. We're all going
    to have a second round, so you can move along.
        Mr. Harcourt. Thank you, Chairman.
        Mr. Coble. Prior to recognizing the gentleman from Texas,
    let me remind the Members again that after we adjourn this
    hearing we will mark up the Secure Access to Justice Bill. So
    if you all could remain, I would be appreciative.
        The Chair recognizes the distinguished gentleman from
    Texas, Mr. Gohmert, for 5 minutes.
        Mr. Gohmert. Thank you, Mr. Chairman.
        With regard to the State of Texas, I do have some
    experience both as a prosecutor, as a district judge, our
    highest trial court, and then as an intermediate chief justice
    of the appellate court.
        I had a guy who was nominated for the Federal court by a
    Democratic President back in the seventies, was nominated for
    the Fifth Circuit of Appeals, and took that position--by
    President Clinton. I had him speak to a Rotary Club some years
    back and he said, on being asked during question and answer
    what do you think about the death penalty in Texas, and his
    words were--and he's much more moderate than I am--but he said,
    you don't have the death penalty in Texas. And people began to
    get all ruffled. And he said, if you're waiting 10 to 20 years
    to put somebody to death, and do it in the middle of the night
    when nobody can see and nobody can be around, you don't really
    have the death penalty.
        Interestingly enough, there's something to his comments. We
    have put people to death. I do challenge anybody to show since
    1976--I don't know about before then, I wasn't licensed before
    then--but anyone who had been executed since that time who was
    innocent.
        I know there were a lot of people who have been guilty who
    have had cases reversed. I get sick and tired of hearing people
    say that, well, you know, we know in Texas they didn't get
    proper representation because defense attorneys are not on the
    proper level with the seasoned prosecutors.
        I had never tried a murder, I had never tried a death
    penalty case, and yet in 1986 I was appointed to appeal a
    capital murder conviction, and I did one fantastic job because
    I worked my tail off. And there was not proper due process in
    the trial and it was reversed.
        So I get a little sick of saying that somebody like me was
    not competent in the appeal of a death penalty case. I have
    tried them as a trial judge. And for those who don't know, it's
    not enough to be convicted of capital murder, as Mr. Lungren
    pointed out, you have a bifurcated trial, and then go into--in
    Texas it's basically three questions that in essence say,
    number one, did you commit the murder or know that the murder
    was going to be committed; number two, are you a future danger;
    and number three, is there anything whatsoever that mitigates
    against getting the death penalty? And man, that opens the door
    to all kinds of testimony. And only if you get a yes, yes, no
    is the judge in a position to pronounce a death penalty.
        Also in the issue of race, my anecdotal situation, I
    understand what the numbers are statewide. I had three people
    convicted of capital murder in my court in a decade, and two of
    them got the death penalty. They were both white, and the one
    that didn't was an African American.
        With regard to this issue of studies, I'd like to ask, do
    any of the four of you know of any studies about recidivism or
    the deterrence effect of capital murder sentences that were
    done before the modern era of habeas corpus in cases taking 10
    to 20 years? Do any of you know of any studies before we
    started dragging death penalty 10 to 20 years----
        Mr. Harcourt. Your Honor----
        Mr. Coble. The red light is about to illuminate, but you
    all may answer.
        Mr. Harcourt. Thank you.
        The original studies about deterrence were done in the
    early 1970's, and that was the Erlich study, which had
    originally suggested that there was deterrence, but it was
    subjected to a lot of review; and ultimately an expert panel of
    the National Academy of Sciences issued a strong criticism of
    the early study. And I think that that would cover a period of
    where it was not prolonged death penalty appeals and processes.
    So the evidence there suggested no deterrence.
        Mr. Gohmert. Okay. Let me just ask you--and I appreciate
    what I believe is your great candor, Mr. Harcourt. You
    mentioned 12 death penalty cases in a discussion about proof
    beyond a reasonable doubt of innocence. In those 12 cases, was
    there proof beyond a reasonable doubt of innocence, or just
    some procedural flaw or reasonable doubt such that created no
    additional trial after reversal?
        Mr. Harcourt. Those 12 cases were referring to 12 DNA
    exonerations in death penalty cases; exonerations, meaning
    wrong person. The blood--the blood or semen or whatever other
    human cells that were obtained and checked for DNA purposes
    were a different person. So those would be 12 DNA exonerations.
        Of course the other cases of approximately more than 100
    exonerations or cases of actual innocence don't involve DNA.
    And so as a result of that, what I'm suggesting is, of course,
    there is always lingering debate because you don't have rock-
    solid proof, and it's----
        Mr. Gohmert. And is it possible that the DNA, the so-called
    exoneration may just have raised such doubt that that person
    could have been there, knowing the crime was going to be
    committed, but it's just that with the DNA evidence it created
    a reasonable doubt that wasn't worth trying?
        Mr. Harcourt. Well----
        Mr. Coble. The gentleman's time has expired. You can
    respond tersely.
        Mr. Harcourt. Right. Well, these are cases where Governors
    in most cases have exonerated individuals on the belief, firm
    belief, that they were not the individuals who committed the
    crime.
        Mr. Gohmert. Thank you. Thank you, Mr. Chairman.
        Mr. Coble. I thank the gentleman. Now we are coming up to
    another vote before too long, but I think a second vote is
    warranted, so we will move along. And I appreciate the
    panelists hanging tough as you have.
        I'll start the second round.
        Mr. Sabin, since 9/11 the impact of terrorism has become a
    regular experience with most Americans now that was virtually
    unknown prior to 9/11. But in the death penalty framework, Mr.
    Sabin, why are terrorist offenses treated not unlike treason
    and espionage cases rather than traditional homicides?
        Mr. Sabin. The threat and harm to society that is prevalent
    in the present statutory framework for treason and espionage
    cases is in the same vein as would be in terrorism cases; the
    fact, as we have discussed earlier, that there is a grave risk
    to society based upon the threat that thousands, tens of
    thousands of people could be killed by that act of treason or
    by that act of espionage or by that act of terrorism, rather
    than a specific murder that occurs. So under section 101 of the
    proposed legislation, you would have terrorist offenses that
    result in death.
        And the other section of the proposed legislation, you
    would have terrorism put on that same playing field as treason
    or espionage cases because of the widespread impact upon
    society.
        Mr. Coble. I thank you, Mr. Sabin.
        Mr. Marquis, with the passage--we may have gotten into this
    previously, but I want to extend it one more time.
        With the passage of the Justice for All Act and creation of
    post-conviction DNA testing procedures, what impact will that
    have upon addressing concerns of innocent defendants on death
    row?
        Mr. Marquis. In response to, I think, one of the comments
    by--I think it may have been the Congresswoman from Texas, the
    idea that we are conducting summary proceedings could not be
    farther from the truth. I have one person that I have put on
    death row. He committed his murders in 1987; we're about to
    have the fourth trial for him.
        To be blunt, in the United States, defendants are--in death
    penalty cases, are drowned in due process. And that probably is
    the way it should be; if we're seeking to take someone's life,
    that's very important. The reason that these cases go on at
    such length is because almost universally now, a very high
    level of lawyer is provided.
        In my State, which is not atypical, there have to be at
    least two; you have to be death qualified, you have to have
    previously tried a murder case. And I did death penalty
    defense, and I was able to do it because I had previously tried
    a murder case.
        In my State we spend more money on indigent defense all
    over, not just in capital cases, than we do on prosecution.
    That's not the case everywhere in the United States. But I
    think it's important to note that, particularly with the
    passage of Justice for All Act, one of the concerns was, well,
    what if somebody--if there is a new DNA case and it comes up
    later?
        As a prosecutor it is my worst nightmare that I would
    prosecute an innocent person. And I don't believe there should
    be any block against bringing up evidence at any point in a
    proceeding, no matter where you are procedurally, if the person
    really didn't do it.
        Mr. Coble. And I concur with that.
        Mr. Eisenberg, this may be duplicating. I don't think we've
    addressed this specifically. What is your view of a proposal to
    scale back Federal review at the district court and appellate
    levels? And how well situated are State judges in vindicating
    Federal constitutional rights?
        Mr. Eisenberg. Mr. Chairman, we are certainly facing delays
    at both of those levels of the Federal courts. The only level
    in which cases move at a reasonable predictable pace is if and
    when they ever get to the United States Supreme Court, which is
    extremely rare.
        In the district courts, I mentioned one case in my written
    testimony, hasn't gotten an appeal yet, it's still in the
    district court where it has been kicking around for I think 4
    years now. And just a couple of weeks ago the judge issued an
    order in the case, but the order is not a decision on the case;
    that's just an order setting oral argument about all the briefs
    that had been filed so far.
        So it has taken us 4 years to get to the point where the
    district judge ordered oral argument, which is supposed to take
    place next month--who knows how many years until he finally
    rules? And only then will we even start the appeals.
        In State court, of course, these cases are getting judicial
    attention much earlier. And as I mentioned previously, there
    are many State courts that have reversed many death penalty
    cases. Now, that's been argued by some as proving that there
    are all these errors in these cases. But if that's true, if we
    can rely on those State court judgments, we can certainly rely
    on the State court judgments that affirm death penalty cases as
    well.
        Mr. Coble. Well, when you said district court, you meant
    Federal district court?
        Mr. Eisenberg. Yes. I meant the lower level of the Federal
    courts, which happens after all the State court appeals; the
    first thing that happens in Federal court.
        Mr. Coble. I thank you, sir.
        The distinguished gentleman from Virginia is recognized for
    5 minutes.
        Mr. Scott. Thank you.
        Mr. Marquis, you indicated if someone has evidence that
    they're innocent, they ought to be heard and have that
    opportunity. If it's--if you have evidence that's not DNA
    evidence, what kind of chance would you have if you were
    factually innocent?
        Mr. Marquis. Well, there are--in addition to the various
    direct appeals, Federal appeals, habeas appeals, if there is
    evidence of innocence. This is where there is something, some
    amount of the human factor. Evidence is brought to prosecutors
    and to Governors, and it is not uncommon in this country for
    prosecutors----
        Mr. Scott. If you can convince the prosecutor. But if the
    prosecutor doesn't want to go along, what can you present to a
    judge under these bills that will allow you to be heard?
        Mr. Marquis. I can't speak to what can be provided under
    these bills----
        Mr. Scott. Well, under present law you don't have much
    because you've got to have evidence of--clear and convincing
    evidence to get past a motion, frivolous charge. I mean, you've
    got to show clear and convincing evidence. If all you've got is
    evidence that you're probably innocent, do you get a hearing?
        Mr. Marquis. I think it requires more than that.
        Mr. Scott. Right, okay.
        If under H.R. 3035, Professor Harcourt, if a State court
    has ruled that the evidence--that the error was harmless, can
    the Federal court review that finding?
        Mr. Harcourt. Not on a sentencing issue, Congressman Scott.
    One of the provisions of H.R. 3035--I think it's specifically
    provision 6, section 6--suggests that if a State court, in
    post-conviction or on direct appeal, finds that a claim
    regarding a sentence or a sentencing process--this applies
    whether it's a death penalty case or an ordinary criminal
    case--if the sentencing claim is harmless or that they found
    out it was not prejudicial in some way, then the claim cannot
    be reviewed in Federal habeas corpus.
        Mr. Scott. Is that the same for ineffective counsel?
        Mr. Harcourt. Well, that's precisely the point. Ineffective
    assistance of counsel is a two-prong standard that requires
    inadequate--or performance that's not up to par. And then
    prejudice. It's a two-prong standard which has a prejudice
    prong in it. So effectively, any kinds of claims of ineffective
    assistance of counsel regarding sentencing--which, of course,
    some of the most significant kind of cases that we see--in
    fact, the United States Supreme Court has just reversed a few
    cases because of inadequate counsel at the sentencing phase--
    would be barred by this legislation.
        Mr. Scott. Now, if you haven't exhausted State remedies and
    you file your petition in Federal court, do I understand this
    bill to say it is dismissed with prejudice?
        Mr. Harcourt. Correct.
        Mr. Scott. That means when you go back to State court, you
    can't come back.
        Mr. Harcourt. That's correct. Under present AEDPA law--
    actually in a ruling just issued this year by the United States
    Supreme Court in Ryans v. Webber, and under the AEDPA, there is
    essentially some discretion provided to Federal judges in cases
    of unexhausted claims. It's a very limited discretion.
        Mr. Scott. They can dismiss it without prejudice, or they
    can hold it until you've been there.
        Mr. Harcourt. Correct. Although it's very limited. I mean,
    you have to show that you're likely to prevail, et cetera. It's
    not as if it would apply to all unexhausted----
        Mr. Scott. But if they dismiss it, it wouldn't be with
    prejudice, so you could never bring it back.
        Mr. Harcourt. Correct, yes.
        Mr. Scott. My time is almost over. I had a couple of quick
    questions.
        Under H.R. 3060, when a jury has found someone guilty but
    can't decide on the--or is hung on the question of guilt, the
    bill provides for a new jury to come in on the question of
    death--a new jury to come in.
        Has a court ever reviewed what happens if a jury cannot
    unanimously decide death? I thought the rule was that you have
    to impose life, is it----
        Mr. Eisenberg. May I address that, Congressman? We did have
    a case from my State that I believe touched on this issue and
    went up to the United States Supreme Court. And the United
    States Supreme Court held that, in fact, if the sentencing jury
    can't decide on death, that's not a double jeopardy bar to
    retrying the issue.
        There are some States which by statute don't allow another
    sentencing hearing, which automatically impose a life sentence
    in the event of a hung jury.
        Mr. Scott. Do you have a case on that specific point? Could
    we get the name of that?
        Mr. Sabin. I believe it's the Jones case.
        Mr. Scott. Which said if the jury is hung on that question,
    it is not double jeopardy to come back. So if we change the
    statute, then that case would answer the question on
    constitutionality of that provision.
        Mr. Sabin. I don't think it quite held that that was the
    holding. I believe there was not unanimity. There were
    questions about the jury instructions and whether you had to
    impose death, life sentence, or another sentence that would be
    less than death. And the confusion that was suggested created
    in the jury by those instructions impacted upon the court's
    decision.
        Mr. Scott. Okay. And the other question is, there is a
    provision to proceed with less than 12 jurors in H.R. 3060.
    Does anybody want to comment on that, and whether courts have
    reviewed going forward on a death penalty case with less than
    12 jurors over the objection of the defense?
        Mr. Coble. The gentleman's time has expired, but you may
    answer.
        Mr. Sabin. I don't believe a court has held in that regard;
    that is correct. If good cause is found, a judge under this
    proposed bill can proceed with a jury of less than 12 without
    the defendant's stipulation.
        Mr. Scott. And has any court--and no court has ruled on
    that as a denial of due process; is that right?
        Mr. Sabin. I am not aware of court proceedings. We can get
    back to you on that of any specific court, if the Supreme Court
    or lower level has reviewed that.
        Mr. Coble. The gentleman's time has expired. The
    distinguished gentleman from California is recognized for 5
    minutes.
        Mr. Lungren. Thank you, Mr. Chairman.
        Mr. Harcourt, you correctly noted in your testimony that
    the current law allows a State to trigger a special set of more
    advantageous, as you say, to the State procedural rules for
    Federal habeas corpus proceedings if the State establishes an
    effective system providing competent counsel to indigents in
    State post-conviction proceedings. You also note that Federal
    courts determine whether a State scheme for supplying counsel
    meets the statutory criteria, and this is the so-called opt-in
    feature of AEDPA. But then you then criticized the bill I have
    introduced for placing the decision of whether the State
    qualifies for chapter 154 treatment in the hands of the U.S.
    Attorney General. You contend this: A State that gets
    something, advantageous procedural rules in Federal court in
    exchange for doing something, providing good lawyers to
    indigents in State proceedings, this section would change both
    ends of that quid pro quo equation.
        Look, I know that many States, including my own, have
    devoted great effort and expense toward providing the type of
    counsel that chapter 154 requires. As a matter of fact, when we
    drafted the law California was used as the model. But it has
    now been 9 years since the passage of the law, can you name me
    one State that has been permitted by the Federal Courts of
    Appeals to qualify for chapter 154? And hasn't the quid pro quo
    equation under current law that you celebrate effectively
    always meant a zero for the State side of the equation?
        Mr. Harcourt. If I'm not mistaken, I believe that Arizona
    qualified for the opt-in provisions under the Ninth Circuit
    review. And I believe that's the--I believe that is the only
    State that has qualified for the opt-in procedures.
        Mr. Lungren. Does it sound like it's working?
        Mr. Harcourt. Well, the question is whether adequate
    counsel is being provided in State post-conviction proceedings.
        Mr. Lungren. That's true. And it's interesting that we
    modeled that section after the California experience, and yet
    the courts have not found that to be appropriate; thereby, it
    looks like, ignoring what we tried to suggest was appropriate.
        I have so many questions here. Let me ask you this. You
    criticize section 14 of the bill, which you say would overrule
    the U.S. Supreme Court's interpretation of the 1996 act as not
    applying to pending claims. And today, 9 years after the law
    was enacted, a small but significant number of habeas corpus
    petitions still remain that were not governed by it and are
    still subject to the pre-1996 standards. You state in your
    testimony that legislatively overruling the Supreme Court's
    interpretation and applying it to all current cases would
    trigger massive litigation over whether the U.S. Constitution
    allows Congress to do this.
        Now, the Lynn case, 1997, the Supreme Court that held that
    the 1996 law did not apply to pending cases, was a 5-4
    decision. Are you aware of any passage in either the majority
    decision or the dissent in that case, that suggests that
    Congress could not have applied AEDPA to pending claims? And if
    applying them to pending petitions would have raised such
    constitutional concerns, don't you think that at least one
    justice would have mentioned this?
        Mr. Harcourt. Congressman, I don't have the Lynn decision
    right in front of me, so I can't quote any language from it,
    but I believe there was a claim raised as to the retroactive
    application of new procedures in that case, which would be
    precisely the kind of constitutional claim that would be raised
    as a result of this H.R. 3035, if the--part of the bill
    provides that it applies to cases that are pending right now.
        Mr. Lungren. You also suggest that many sections of the
    legislation would raise significant constitutional questions
    about the prior Congress to restrict Federal court review of
    habeas claims, including whether or not the bill violates the
    suspension clause of the United States Constitution. You later
    assert that the bill would arguably suspend the writ of habeas
    corpus.
        In the Lynn case, the court of appeals described the
    constitutionally guaranteed writ of habeas corpus this way: The
    writ known in 1789 was the pretrial contest of the Executive's
    power to hold a person captive, the device that prevents
    arbitrary detention without trial. The power thus enshrined did
    not include the ability to reexamine judgments rendered by
    courts possessing jurisdiction. Under the original practice,
    the judgment of conviction rendered by the court of general
    criminal jurisdiction was the conclusive proof that confinement
    was legal and prevented issuance of a writ. The founding area
    of historical evidence suggests a prevailing view that State
    courts were adequate fora for protecting Federal rights. Based
    on this assumption, there was, and is, no constitutionally
    enshrined right to mount a collateral attack on a State court's
    judgment in the inferior article 3 courts, and, a fortiori, no
    mandate that State court judgments embracing questionable or
    even erroneous interpretations of the Federal Constitution be
    reviewed by the interior article 3 courts.
        The Seventh Circuit then concluded: Any suggestion that the
    Constitution forbids every contraction of the habeas power
    bestowed by the Congress in 1885 and expanded by the 1948 and
    1996 amendments is untenable.
        My question is, do you think that the Ninth Circuit got it
    wrong?
        Mr. Coble. The gentleman's time has expired.
        Mr. Lungren. I talked as fast as I could.
        Mr. Coble. I'm not admonishing you, but you may respond to
    that, Professor.
        Mr. Harcourt. Thank you, Chairman.
        The question of constitutionality here has to do with
    whether or not you can grant Federal jurisdiction to a Federal
    court up to a certain point where a violation of Federal law
    would be discovered, okay, but at which point the jurisdiction
    would be stripped, and so the court couldn't do anything. So
    that's probably the most complicated constitutional issue that
    this statute presents. In other words, it would be a situation
    where a Federal district court would be able to--would see a
    violation of Federal law, but would not be able to--but then
    jurisdiction would be stripped right at that point because the
    lower court found it harmless or because there is no procedural
    default rules in place anymore, et cetera.
        What really becomes questionable with H.R. 3035 is that
    point where jurisdiction is stripped after a Federal court
    would have found a substantive violation of a Federal
    constitutional right.
        Mr. Lungren. So you think the Seventh Circuit got it wrong.
        Mr. Harcourt. You were talking about the Ninth Circuit.
        Mr. Lungren. Seventh Circuit. I agree with you, the Ninth
    Circuit gets it wrong often, but I'm talking about the Seventh
    Circuit in this case.
        Mr. Harcourt. Right. I don't think that in that particular
    case, the Seventh Circuit was addressing the constitutional
    issue that H.R. 3035 raises.
        Mr. Coble. The gentleman's time is expired. And I say to my
    friend from California, I was not admonishing you because you
    were speaking at an accelerated rate, you were trying to beat
    that red light.
        Mr. Lungren. It may be difficult for you to understand from
    North Carolina, but we do talk a little faster out where I come
    from. Thank you.
        Mr. Coble. We have been joined by the distinguished
    gentleman from Florida, Mr. Keller.
        Now I ask my friends on the majority side, does anyone have
    any question on the second round?
        Mr. Keller, the gentleman from Florida.
        Mr. Keller. Thank you, Mr. Chairman. And I apologize for
    not being here on the first round.
        Having read the powerful testimony, I just wonder if our
    Ranking Member, Mr. Scott, is now persuaded to be in support of
    the death penalty. And I will yield.
        Mr. Scott. Nice try, Mr.----
        Mr. Keller. I will yield back the balance of my time then.
        Mr. Coble. The gentleman yields back the balance of his
    time.
        And I want to thank the Members who have stayed with us
    throughout the entire hearing. And I want to express my thanks
    to the very distinguished panelists and those in the audience
    who have attended very dutifully. The Subcommittee appreciates
    your contribution.
        In order to ensure a full record and adequate consideration
    of this important issue, the record will be left open for
    additional submissions for seven days. Also, any written
    questions that a Member wants to submit should be submitted
    within the same seven-day period.
        This concludes the legislative hearing on, ``Does an
    Accurate and Swift Death Penalty Deter Crime And Save Lives:
    H.R. 3060, the ``Terrorist Death Penalty Enhancement Act of
    2005;'' and H.R. 3035, the ``Streamlined Procedures Act of
    2005.''
        We will now proceed with the markup--without objection, the
    hearing is adjourned and we will proceed with the markup of
    H.R. 1751, the ``Secure Access to Justice and Court Protection
    Act of 2005.''
        Again, I say to the panelists, thank you so much,
    gentlemen, for being with us.
        [Whereupon, at 4:20 p.m., the Subcommittee proceeded to
    other business.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Letter from Michael Israel, Editor, Criminal Justice Washington Letter,
     to the Honorable Howard Coble, a Representative in Congress from the
         State of North Carolina, and Chairman, Subcommittee on Crime,
    Terrorism, and Homeland Security, and the Honorable Robert C. Scott, a
      Representative in Congress from the State of Virginia, and Ranking
        Member, Subcommittee on Crime, Terrorism, and Homeland Security