[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

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               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




                                 
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