[Senate Hearing 109-366]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 109-366

             HABEAS REFORM: THE STREAMLINED PROCEDURES ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 16, 2005

                               __________

                          Serial No. J-109-52

                               __________

         Printed for the use of the Committee on the Judiciary



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                             WASHINGTON: 2006        

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................    62
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    27
    prepared statement...........................................    83
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2
    prepared statement...........................................    94
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Eisenberg, Ronald, Deputy District Attorney, Philadelphia 
  District Attorney's Office, Philadelphia, Pennsylvania.........     5
McKibben, Howard D., Senior United States District Judge for the 
  District of Nevada, and Chairman, Committee on Federal-State 
  Jurisdiction, Judicial Conference of the United States, Reno, 
  Nevada.........................................................    13
Waxman, Seth P., former Solicitor General of the United States, 
  and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, 
  Washington, D.C................................................     7

                         QUESTIONS AND ANSWERS

Responses of Howard D. McKibben to questions submitted by Senator 
  Leahy..........................................................    37

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Eric M. Freedman, Maurice A. Deane 
  Distinguished Professor of Constitutional Law, Hofstra Law 
  School, Washington, D.C., prepared statement...................    44
American Judicature Society, Judicature, September-October 2005, 
  Des Moines, Iowa, editorial....................................    57
Arizona Daily Star, Tucson, Arizona, July 9, 2005, editorial.....    58
Concord Monitor, Concord, New Hampshire, July 17, 2005, editorial    60
Denver Post, Denver Colorado, August 9, 2005, editorial..........    63
Detroit Free Press, Detroit, Michigan, July 19, 2005, editorial..    64
Eisenberg, Ronald, Deputy District Attorney, Philadelphia 
  District Attorney's Office, Philadelphia, Pennsylvania, 
  prepared statement.............................................    65
Federal Public and Community Defenders, Thomas W. Hillier, II, 
  Federal Public Defender, Chair, Legislative Expert Panel, 
  letter.........................................................    76
Hartford Courant, Hartford, Connecticut, October 25, 2005, 
  editorial......................................................    85
Journal Gazette, Fort Wayne, Indiana, August 2, 2005, editorial..    86
Kansas City Star, Kansas City, Missouri:
    July 15, 2005, editorial.....................................    87
    October 6, 2005, editorial...................................    90
Keene Sentinel, Keene, New Hampshire, July 23, 2005, editorial...    91
Knight-Ridder News Wire, Philadelphia, Pennsylvania, July 23, 
  2005, editorial................................................    92
Los Angeles Times, Los Angeles, California, July 13, 2005, 
  editorial......................................................    96
McKibben, Howard D., Senior United States District Judge for the 
  District of Nevada, and Chairman, Committee on Federal-State 
  Jurisdiction, Judicial Conference of the United States, Reno, 
  Nevada, prepared statement.....................................    97
New York Times, New York, New York, July 16, 2005, editorial.....   113
Philadelphia Inquirer, Philadelphia, Pennsylvania, October 28, 
  2005, editorial................................................   114
St. Louis Post Dispatch, St. Louis, Missouri, July 13, 2005, 
  editorial......................................................   115
St. Petersburg Times, St. Petersburg, Florida:
    August 26, 2005, editorial...................................   117
    October 31, 2005, editorial..................................   118
San Francisco Chronicle, San Francisco, California, July 14, 
  2005, editorial................................................   119
San Jose Mercury News, San Jose, California, August 19, 2005, 
  editorial......................................................   120
Tennessean, Nashville, Tennessee, July 22, 2005, editorial.......   121
Washington Post, Washington, D.C.:
    July 10, 2005, editorial.....................................   122
    August 19, 2005, editorial...................................   123
    September 29, 2005, editorial................................   124
Waxman, Seth P., former Solicitor General of the United States, 
  and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, 
  Washington, D.C., prepared statement...........................   125

 
             HABEAS REFORM: THE STREAMLINED PROCEDURES ACT

                              ----------                              


                      WEDNESDAY, NOVEMBER 16, 2005

                                       U.S. Senate,

                                Committee on the Judiciary,

                                                    Washington, DC.

    The Committee met, pursuant to notice, at 9:44 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.

    Present: Senators Specter, Kyl, Cornyn, Leahy, Feinstein, 
and Feingold.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. The Judiciary Committee will proceed with 
this hearing on habeas corpus reform. We have been awaiting the 
arrival of other Committee members, but at this time we will 
move forward.

    This is the second hearing on the legislation introduced by 
Senator Kyl. It is an effort to balance some very complex 
considerations on death penalty cases to be sure that the 
constitutional rights of those convicted are observed with the 
collateral proceedings in habeas corpus, but at the same time 
to do what is fair to move ahead the conclusion of these 
proceedings.

    This is an area that I have been very familiar with over 
the years since my days as district attorney of Philadelphia 
and litigating many habeas corpus proceedings in the State 
courts and in the Federal courts. There is an overhang of 
opposition, I think fairly stated, to put a time limit on these 
proceedings because of people who are opposed to the death 
penalty. And I can understand that. It is a complicated 
subject, and people of good will and good faith are on both 
sides of the issue.

    I think it is important to note that in this legislation, 
we have expanded the DNA to do what is scientifically possible 
to exonerate the innocent. I note just the recent statistics 
released about a reduction in the number of death penalty 
cases, executions, and I think that is occasioned by public 
doubts as to the guilt of some who are under the death penalty 
and the growing concern about the death penalty. But as long as 
it is on the books and the States are moving ahead to enforce 
it, we ought to do what is practical to avoid enormous delays.
    The scheduling of this hearing has been very difficult 
because we cannot seem to get all the witnesses together at the 
same time, and only this morning I found that we do not have 
the representatives from the Chief Justices here, and I regret 
that. But we have the Judicial Conference here and we have 
former Solicitor General Seth Waxman, who appeared at an 
earlier hearing and has been very helpful in trying to work out 
some of the intricacies. And we have an astute representative 
of the prosecutors here, somebody from the Philadelphia 
District Attorney's Office. He did not serve at the right time, 
but he is serving now.
    Senator Kyl. It gets better all the time.
    Chairman Specter. And they are getting much better all the 
time. They relegate need ex-D.A.'s to who knows where.
    I had made a commitment to Senator Kyl to try to move this 
along. He has been very cooperative on the first substitute 
which my staff prepared under my name and the second 
substitute. And I think we have gone a long, long way. And 
Senator Feingold has been appropriately urging a hearing. I 
have been filibustering, Patrick--
    Senator Leahy. Thank you. I showed up.
    Chairman Specter [continuing]. To make sure that you were 
here on time to make your opening statement. I have still got a 
minute and 15 seconds left. I ordinarily want to take 2 
minutes.
    But as I was saying, Senator Feingold has been 
appropriately insistent on these hearings, and that is right. 
We ought to consider them. I was tempted at one point to move 
the bill out of Committee and decided not to, to give another 
hearing and to make every conceivable effort to meet all of the 
objections and to try to move ahead so that we do not get hung 
up on some claims which are exhausted and some which are 
unexhausted in the State court, which has an interminable 
tennis match, and to do what we could to provide effective 
assistance of counsel. And the 1996 legislation goes a long way 
there, but it has not been implemented because it has been so 
complicated, and we are working on that collaterally in other 
legislation which is being considered.
    I am delighted to yield now to our distinguished Ranking 
Member, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman, and I know your 
penchant--which I happen to agree with, and what I have 
followed the various times I have been Chairman--of starting on 
time and I appreciate your--I know you held up while I tried to 
get through unbelievable traffic jams. And I am glad you are 
holding this hearing. It is our second hearing. Since our first 
hearing back on July 13th, I believe, the bill has been 
strongly opposed by a wide range of experts and practitioners, 
and it has twice been rewritten.
    Yesterday, the Senate voted to strip Federal courts of the 
authority to consider habeas petitions from detainees being 
held in U.S. custody as enemy combatants, demonstrating once 
again to the rest of the world our great commitment to the rule 
of law, I guess. At no time before in our Nation's history have 
habeas rights been permanently cutoff from a group of 
prisoners. I found it interesting we are doing it at the same 
time when the President is abroad telling other countries that 
they must improve their commitment to the rule of law and to 
people's rights. And with the support of the White House, we 
are moving here to cutoff people's rights. It is fascinating 
double-talk. And we did it without even holding a Committee 
hearing on issues so fundamental to basic precepts and basic 
rights under our system of Government.
    I am glad to see our witnesses today. I am glad to see my 
friend Seth Waxman, a former Solicitor General. When we adopted 
the current version of the bill in October, it was claimed that 
this version addressed, or at least substantially addressed, 
all the concerns that Mr. Waxman had raised, and I do not 
believe that is the case. I will let him speak for himself on 
it.
    This version has a number of problems. The bill seeks to 
impose radical and unprecedented restrictions on the Great Writ 
of habeas corpus. I think it injects confusion into settled 
law. That only increases litigation. It does not decrease it. 
It would eliminate essential protections against wrongful 
convictions without making any kind of provisions for claims of 
innocence.
    If it is passed, it would preclude Federal courts from 
enforcing Federal constitutional rights. Just think about it. 
It would preclude them. Amazing court-stripping.
    The legal community recognizes this. The American Bar 
Association calls the bill before us ``a significant setback 
for justice.'' Both the U.S. Judicial Conference and the 
Conference of Chief Justices, who normally take a pretty 
conservative attitude on such things, have expressed grave 
concerns with this bill. They have urged further study and 
analysis before we start tearing apart the complex edifice that 
is Federal habeas law. The State Chief Justices cautioned us 
against passing a bill with ``unknown consequences for the 
State courts.'' The Judicial Conference reported the vast 
majority of habeas cases are already moving expeditiously 
through the system. We will hear more from them this morning.
    I know the bill has its defenders. But not one defender of 
the bill has offered systemic evidence of a real national 
problem with Federal habeas corpus under the current, post-
AEDPA regime. This bill I think is a crude, partisan solution 
to an unproven and largely non-existent problem, and no amount 
of tinkering is going to improve that.
    If we want to reform the system, improve the quality, 
efficiency, and finality of criminal justice, there is a 
different solution. Unlike the SPA, it is a solution that would 
solve problems in the criminal justice system before they 
arise, rather than complicating the process of responding to 
problems via habeas. Unlike the SPA, it is a solution supported 
by the legal community and the public at large. And it is a 
solution to which the President and both Houses of Congress 
have previously committed on a bipartisan basis. It is a 
promise we made to the American people--a promise we made--and 
I think we have a duty not to renege on that promise.
    I speak, of course, of the Innocence Protection Act. We 
passed the Act 1 year ago in response to the shameful, 
widespread evidence of hopelessly underfunded, too often 
incompetent, and even drunk and sleeping defense counsel in 
some State capital trials. We did so because we saw only too 
well the costs of that systemic failure: innocent men on death 
row, and repeated, fundamental violations of constitutional 
rights.
    The Act established a new grant program to improve the 
quality of legal representation. This program would greatly 
reduce the risk of error in those cases. It would reduce the 
frequency of the most expensive and drawn-out post-conviction 
proceedings. If we are truly committed to improving the 
criminal justice system, let's not let Congress's check bounce 
by failing to fund something that we and the President and the 
other body all agreed to last year.
    We all agree that the trial should be the main event and 
abuses of habeas corpus should not be tolerated. I was a 
prosecutor. I believe that very strongly. But let's remember 
the trial process itself is flawed and it will remain flawed if 
we continue to skimp on essential funding. And wrongful 
convictions do occur. As Justice O'Connor has told us, the 
death penalty system is so flawed in America today we probably 
already have executed an innocent person. So let's not pass 
ill-conceived, unnecessary legislation that would only make an 
unacceptable situation far worse.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    Our first witness is--
    Senator Kyl. Mr. Chairman, might I, as a matter of personal 
privilege, ask Senator Leahy, if I heard him correctly, that he 
described my legislation as a ``crude, partisan solution.'' Is 
that what you said, Senator Leahy?
    Senator Leahy. I believe this legislation is, yes. I 
believe this legislation is not addressing--especially after we 
passed the Innocence Protection Act--
    Senator Kyl. The question is whether you said ``crude, 
partisan solution.'' If so, I resent that, Mr. Chairman and 
Senator Leahy. I have tried to work in a bipartisan way. We 
have taken 6 months now. I have worked with the Chairman. We 
have tried very hard to do something that responds to a real 
problem here, and I think that we ought to be discussing this 
in a sensible, careful, constructive way, and not turn it into 
some kind of a partisan attack and get into name-calling.
    Senator Leahy. What I said was--let's put it all in 
context. I said that I know the bill has its defenders, but not 
one defender of the bill has offered systemic evidence of a 
real national problem with Federal habeas corpus under the 
current, post-AEDPA regime, and the bill remains a crude, 
partisan solution to an unproven, largely non-existent problem, 
and no amount of tinkering will solve that.
    I have a great deal of respect for the Senator from 
Arizona. We have worked together on a number of issues. My 
feeling about this bill remains the same.
    Chairman Specter. Senator Kyl, would you care to respond 
further?
    Senator Kyl. Mr. Chairman, I will just note that there are 
organizations that believe that this is a proper response to a 
Federal problem. The National District Attorneys' Association 
at their national convention recently endorsed generally this 
legislation, and there are others. And I will put a statement 
in the record, with your approval, that--
    Chairman Specter. Without objection it will be made a part 
of the record.
    Senator Kyl [continuing]. Represents some more recent 
evidence of this phenomenon than was presented at the first 
hearing that we held.
    Chairman Specter. Thank you, Senator Kyl.
    We now turn to Deputy District Attorney Ronald Eisenberg of 
the Philadelphia District Attorney's Office. He is the head of 
the Law Division, which has responsibility for direct appeals, 
post-conviction matters, Federal litigation, and legislation. 
He comes from a very busy office which has hundreds of 
homicides, 500 during my tenure there some time ago; tens of 
thousands of cases, 30,000 during my tenure some time ago; and 
is very experienced, of necessity, in habeas corpus matters.
    Mr. Eisenberg, we thank you for coming back again, and to 
the extent you could focus on the length of time and the time 
lapses occasioned by the matters being referred to the Federal 
court and being remanded because of the failure to exhaust 
State remedies, and another round in the State courts, as to 
how long that takes, and then back to the district court, in 
the Eastern District and the Third Circuit, we would be 
appreciative.

   STATEMENT OF RONALD EISENBERG, DEPUTY DISTRICT ATTORNEY, 
     PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA 
                          PENNSYLVANIA

    Mr. Eisenberg. Mr. Chairman and members of the Committee, 
thank you for the opportunity to testify before you today.
    I am the supervisor of the Law Division in the Philadelphia 
District Attorney's Office. We handle now hundreds of Federal 
habeas corpus petitions each year, although many of those drag 
on in litigation for several years, and many in crimes that 
occurred when I first joined the office 24 years ago.
    I would like to address some of the challenges that have 
been raised to the Streamlined Procedures Act. I am aware of 
the view preliminarily that the Federal habeas corpus review 
process is not in need of reform, that problems, if any, are 
localized in jurisdictions like the Ninth Circuit Court of 
Appeals.
    Of course, the Ninth Circuit is quite a large locality and 
worthy of Congressional attention in and of itself, but it is 
by no means unique when it comes to the gyrations imposed by 
current Federal helicopter practice.
    My experience has been in the Third Circuit, where we face 
almost exactly the same issues as my colleagues in States such 
as Arizona and California. I also serve on the board of a 
national capital prosecutors organization, and I meet regularly 
with lawyers from all over the country. We are all fighting the 
same habeas battles--over procedural default and exhaustion and 
filing deadlines and certificates of appealability and a dozen 
other habeas concepts that ought to be straightforwardly 
resolved but seldom are.
    Most habeas questions never reach the Supreme Court, so 
when circuit court decisions slow down the application of the 
habeas statute, we are generally stuck with them.
    Now, I am aware of the argument against habeas reforms 
that, to the extent problems exist in the administration of the 
statute, they are limited to the litigation of capital cases. 
But that, again, is not my experience. To be sure, capital 
habeas litigation consumes a hugely disproportionate share of 
habeas resources, and it is the engine that drives the 
development of convoluted, circuitous application of the habeas 
statute. Once these extra-statutory interpretations are 
developed, however, they cannot be confined to the capital 
context.
    For example, the doctrine of stay and abey, which was 
developed by the courts to deal with eve-of-execution cases, 
where the defendant wished to go back to State court and raise 
new claims without jeopardizing his Federal habeas corpus 1-
year filing deadline. The Supreme Court has recently attempted 
to place some limitation on stay and abey, but now that the 
procedure exists, it cannot be restricted to capital cases. Any 
defendant, capital or non-, is free to engage in such stay 
litigation; and if he is successful, he can put his habeas 
petition on hold indefinitely while he files yet another appeal 
in State court. This will usually be at least his third appeal 
in state court, all the while holding his Federal habeas 
petition.
    Now, of the arguments against habeas reform perhaps the 
most ironic to me is that we do not need any more because AEDPA 
has fixed everything. The reasoning is that AEDPA, when it was 
originally enacted, disrupted settled law and required years 
for the courts to re-establish the status quo. Now that the 
statute has been ``shaken out,'' the law is stable again, and 
habeas litigation will move along rapidly, unless new reform 
upsets the apple cart.
    What matters most, however, is how questions under AEDPA 
are resolved, not how long it takes to resolve them. Take, for 
example, the doctrine of equitable tolling. In AEDPA, Congress 
created a 1-year filing deadline for habeas petitions, with 
various exceptions spelled out specifically in the statute. The 
Federal courts then decided that they could create their own 
exceptions that they call ``equitable tolling.''
    Now, that equitable tolling as a general principle is well 
settled in the circuits, but it would be fiction to suggest 
that equitable tolling has, therefore, streamlined habeas 
corpus review. Just the opposite is true. There is absolutely 
no certainty in application of what was intended as a clear-cut 
deadline because at any moment the court might decide to invent 
a new equitable tolling exception. And, even worse, these new 
exceptions often require extensive factual inquiry in 
individual cases. A whole cottage industry of equitable tolling 
evidentiary hearings has now been born. Thus was the time bar 
transformed from a limitation on litigation into an invitation 
to litigate.
    AEDPA jurisprudence reveals many similar developments. In 
additional to stay and abey, proper filing, and equitable 
tolling issues, as I have discussed, we have seen for example, 
the growth of inadequacy review to undermine procedural 
default, the indulgence of excessive litigation on certificates 
of appealability, and the use of claim-splitting and other 
means of avoid the statutory deference requirement.
    I do not believe that Congress is stuck with these 
applications of the original habeas reform effort, and further 
legislation is appropriate.
    To take just one glaring example, a case that I have been 
working on where the crime was committed in 1981, the defendant 
was named Mumia Abu-Jamal. It is still on habeas review now. 
Four years ago, we filed a notice of appeal to the United 
States Court of Appeals for the Third Circuit. We still do not 
even have a briefing schedule in that case. We have not been 
allowed to file briefs, let alone hold arguments, let alone 
await a decision from the Third Circuit.
    Thank you.
    [The prepared statement of Mr. Eisenberg appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Eisenberg.
    Our next witness is the former Solicitor General of the 
United States, Seth Waxman, partner at the prestigious firm of 
Wilmer, Cutler; an extraordinary academic background, summa cum 
laude at Harvard, a 1977 graduate of the Yale Law School, where 
he was managing editor--mostly those credentials bring you to 
the Supreme Court, Mr. Waxman. I don't know why you are here 
only for this hearing.
    [Laughter.]
    Chairman Specter. Has had numerous awards, they will be 
made part of the record, perhaps most notable the FBI installed 
him as a permanent honorary agent a few years back.
    I don't know if that disqualifies you from testifying, Mr. 
Waxman, but on a serious note, thank you for coming in again 
and thank you for all the work you have been doing as we have 
been laboring with the first substitute and the second 
substitute and now this hearing to address all of the issues we 
can in the most forthright and direct way we can to make sure 
that constitutional rights are not abrogated.
    The floor is yours.

 STATEMENT OF SETH P. WAXMAN, FORMER SOLICITOR GENERAL OF THE 
UNITED STATES, AND PARTNER, WILMER, CUTLER, PICKERING, HALE AND 
                     DORR, WASHINGTON, D.C.

    Mr. Waxman. Thank you very much, Mr. Chairman. I am very 
grateful for the opportunity to come back. I did make a rash 
offer the last time I was here that I very much wanted to work 
with Senator Kyl and with you, Mr. Chairman, and the members of 
the staff and to get at the data and ascertain the extent to 
which there are problems in the system that AEDPA did not 
correct or, as I believe may be the case, there are problems in 
the system that AEDPA has introduced. And I believe I offered 
to charge you the same rate that I was charging for my 
testimony last time, and I have faithfully continued that pro 
bono representation. And I am very, very honored to be able to 
do it. I have met with Senator Kyl's staff. I have met with 
your staff. I have met with Senator Leahy's staff.
    There is nothing more important that I am involved in doing 
than what this Committee is all about right now. I am reminded, 
2 weeks ago I went to see that wonderful movie that is out 
about Edward Murrow, ``Good Night, and Good Luck,'' about the 
bravery of Mr. Murrow during the regrettable period of the 
McCarthy hearings. And what struck me most about the film was 
the very last scene--I hope I do not have this wrong--where 
President Eisenhower is speaking, and he says what is important 
about this country, what is wonderful about this is that we 
have the writ of helicopter, and the writ of helicopter is 
there as a historic safeguard.
    And I thought immediately to the hearing that this 
Committee had and the work that I have been doing, and it is 
why I am looking forward to testifying and answering questions 
this morning.
    I will spare the previous introduction. I am not a 
philosophical opponent of the death penalty. I have recommended 
seeking the death penalty dozens of times. I have less patience 
with delays than anybody that I know, and I am fully in favor 
of expedited proceedings in my professional life and in my 
personal life.
    I think that the substitute bill that we are looking at now 
does eliminate some of the problems that I identified in my 
last testimony. I still think that there are provisions of this 
law that are very problematic. I don't think in 2 minutes and 
30 seconds in my opening statement I will be able to address 
them, but perhaps I can explicate them.
    I am most concerned about--
    Chairman Specter. Mr. Waxman, take the time you need. We 
will give you extra time.
    Mr. Waxman. I appreciate it. I am most concerned about 
Sections 2, 3, 4, 5, 8, and 10. But my overriding concern with 
this is I think that this legislation in very large part 
represents a good-faith effort to address problems that have 
not been documented to exist in any systematic way, and based 
on my experience and looking at the data that I have looked at, 
do not, in fact, exist in any serious way.
    And I wouldn't be as troubled by that alone as I am by the 
fact that I know that, if enacted, these provisions will deny 
relief and, indeed, will deny access to the courts to people 
whose fundamental constitutional rights have been violated, 
some of whom are actually innocent.
    Now, I will be talking a little bit about innocence in the 
course of my remarks because it is a prominent feature in a 
number of these provisions. Let me just turn first to Section 4 
of the bill, which deals with procedural default.
    Procedural default is a doctrine that provides that even if 
there is a constitutional violation, if there was an adequate 
and independent State ground for the court to rule, that is 
sufficient, and Federal habeas corpus courts in an exercise of 
federalism don't have the authority to second-guess what the 
highest court of the State has said on an adequate State ground 
justifies the detention.
    There was a doctrine in place for many, many years called 
``the deliberate bypass doctrine'' that basically precluded 
people, prisoners, from coming to Federal court if they had 
deliberately bypassed their remedies in State court. In 1979, I 
think it was, the Supreme Court in a landmark decision issued 
by Chief Justice/then Justice Rehnquist, Wainwright v. Sykes, 
established a very, very high bar to overcome a procedural 
default--that is, an instance in which an adequate and 
independent State ground had not been availed. And that is the 
so-called cause and prejudice test. The cause and prejudice 
test of Wainwright v. Sykes is one of the most settled 
doctrines in the law, and recognize that in habeas corpus law 
there is almost nothing that is settled. It is the most 
esoteric--it has become the most esoteric area of the law in 
existence.
    The cause and prejudice standard, though, is a notable 
exception. It is settled. It is very stringent, and it only 
allows the most extreme cases through. In my testimony, my 
written testimony, I give the example of Strickler v. Greene, a 
Supreme Court decision a few years ago where the Supreme Court 
found cause--that is, there had been an egregious--there had 
been a very good reason for the failure to bring to the State 
courts a meritorious constitutional claim, but because the 
Supreme Court wasn't satisfied beyond any reasonable--to a 
reasonable degree that the constitutional error would have 
changed the death sentence, defendant's sentence, it denied 
relief. It wasn't enough under cause and prejudice to show that 
there was a constitutional violation, and there was very good 
cause not to have brought it to the attention of the State 
courts. But, nonetheless, he was denied relief and executed.
    Now, Section 4--I should say also that the cause and 
prejudice standard was so settled and, in my opinion, so 
satisfactory to both the community of prosecutors and, I 
suppose, the courts, that it wasn't even considered in the 
context of amending AEDPA that any change be made in the 
procedural defaults rules. There wasn't a procedural default 
provision in AEDPA because, in my experience, the procedural 
default standard under Wainwright v. Sykes is so stringent that 
there aren't any systematic abuses.
    Now, Section 4 of this bill does alter the cause and 
prejudice standard. It denies Federal courts, strips Federal 
courts of jurisdiction of any case in which a State court, 
rightly or wrongly, post hoc or otherwise, says that there was 
a rule of procedure that was not complied with, except in an 
instance in which you can demonstrate not just cause and not 
just that the substance of your claim is not only correct but, 
if denied, would constitute an unreasonable application of 
settled Supreme Court precedent, but also that you can prove on 
a going-in basis that you had no involvement in the crime at 
all, not simply that you are legally innocent of the crime of 
which you were convicted, not simply that you are legally 
innocent of any other activity in connection with the crime, 
but that a court, but for the error, would have found that you 
did not participate in any way in the underlying offense.
    Now, let me address first whether there should be a 
safeguard for the rare case in which there is an excusable 
procedural default. The last time I was here, I discussed with 
the Committee the case of Lee v. Kemna. It is described at 
length in my written testimony. The court asked all of the 
other members of the panel with whom I was sitting whether in 
writing they could dispute that the Supreme Court had, in fact, 
decided what I decided. And I do not believe that anybody did 
dispute it. But that was a case in which in the middle of a 
trial in which the witnesses were sequestered, when the defense 
lawyer in the middle of the day came to call his witnesses, he 
discovered that somebody--likely, the court held, a court 
official--told his witnesses, who had come all the way from 
California to, I think, Missouri, that they would not be called 
that day and they could go home. He then asked for a 
continuance until the next day so that he could obtain his 
subpoenaed witnesses. The court denied it because the court had 
other pressing matters.
    He took an appeal, and on appeal, the court of appeals 
said, well, that may not have been a sufficient reason, but 
there is a rule in this State that all motions be in writing, 
and his motion to continue the trial because his witnesses had 
gone home was not in writing, and that is an adequate and 
independent State ground. And a substantial majority of the 
Supreme Court said that that rule, which was applied not at the 
request of the prosecution at trial and not by the trial judge 
at the time, but by the court of appeals after the fact, cannot 
eliminate the ability to get relief in Federal court.
    Similarly, another Supreme Court case, Ford v. Georgia, the 
rule that was allegedly defaulted was announced after the 
alleged default took place. Amadeo v. Zant, which I also 
discussed in my written testimony, a case in which there was 
deliberate, despicable misconduct by the State prosecutor with 
respect to the jury pool that was concealed, that was not 
revealed until discovery many years later in Federal court, 
there was a procedural default in that case because the claim 
was not raised in State court because it had been concealed. I 
do not believe that it is consistent with the Writ to strip 
Federal courts of jurisdiction to consider cases like that. And 
I particularly think that it is inadvisable in the absence of 
any demonstration that there really is a systemic problem with 
the cause and prejudice standard.
    Now, the innocence prong of this, the innocence exception 
that this substitute legislation includes, as I said, requires 
that you show up front not only that you have a claim so 
meritorious that denying it would be unreasonable in light of 
settled Supreme Court precedent and that you had sufficient 
cause not to have brought it to--not to have complied with the 
State rule, but that you had no involvement in the underlying 
offense. And I want to just spend a minute to express my 
understanding of what exactly that means.
    First of all, it means that there would be no sentencing 
errors at all ever considered by a Federal court in the context 
of one of these procedural defaults, whatever caused it, and 
that is because if the constitutional error related to the 
sentence, that, ipso facto, deprives you of the ability to show 
that you had no involvement whatsoever in the underlying 
offense.
    Now, it may well be that we as a society have little 
sympathy for claims about whether a sentence was too long or 
not too long, or too long because of constitutional error. But 
a fundamental premise of our capital punishment system is that 
not everybody who is guilty of a crime deserves to be executed. 
We have a whole edifice that the Supreme Court has said the 
Constitution requires to separate out among those premeditated 
murderers those who are, as the court has said, ``the worst of 
the worst.'' And yet there would be no sentencing claims 
allowed under Section 4 because you need as a threshold matter 
to prove that you had no involvement in the conduct that formed 
the basis of the crime.
    A good example would be, let's say, the prosecution seeks 
the death penalty against somebody under Edmonds v. Florida 
because they were the trigger man of a cold-blooded murderer. 
And Edmonds says that if you are actually the trigger man, you 
can get the death penalty.
    Well, let's assume that there is egregious Brady violation 
that is discovered, as was the case in Banks v. Dretke, decided 
by the Supreme Court 2 years ago, in Federal court because the 
evidence had been concealed by the prosecutor in State court, 
which did not order discovery. So you come to Federal court, 
you are in Federal court, and you say, look, there is 
irrefutable evidence that was in the prosecutor's file that I 
did not pull the trigger, but you cannot prove that, consistent 
with principles of felony murder, that you either were not 
there or out in the getaway car or something like that, you 
cannot get that--you cannot get in the door. The Federal court 
does not have jurisdiction to consider that claim.
    Now, let's look at guilt/innocence, which is, you know, 
after all, the main event here. Innocence claims do not arrive 
in Federal court as fully formed claims of actual innocence. 
What happens is that the fear here is and what habeas corpus 
protects is instances in which there is something fundamentally 
unfair, not just somewhat unfair but constitutionally unfair in 
the procedures that took place. There are instances, there are 
many instances in which as a result of those fundamentally 
unfair procedures, innocent people are convicted even though 
they do not have fully formed proof of their innocence at the 
outset.
    There are many, many instances in which in Federal habeas 
corpus and in State habeas corpus prisoners prevail on claims 
of fundamental constitutional violations and are thereafter, 
when the violation is corrected, acquitted or exonerated. There 
was a report in yesterday's newspaper about a case in 
Philadelphia in which this happened. But looking at reported 
cases, Kyles v. Whitley, which I mentioned in my testimony, 
there was--in Federal court it was discovered that there was an 
egregious Brady violation with respect to the testimony of the 
prosecution's main witness. The writ was granted. He was 
retried. Three times the prosecution failed to obtain a 
conviction when--
    Chairman Specter. Mr. Waxman, how much longer do you think?
    Mr. Waxman. I can be shut off at any time, Mr. Chairman.
    Chairman Specter. No, I do not want to. I think what you 
said is very informative, and you are still on Section 4.
    [Laughter.]
    Mr. Waxman. I want to go back to Section 2 and 3.
    Chairman Specter. Well, I think you made a pretty good case 
as to Section 4, and I would urge you to move to a new section. 
But you spent a lot of time with staff and you have a lot to 
say, and I think we want to hear it.
    Senator Leahy. Mr. Chairman?
    Chairman Specter. But we want to get some idea as to how 
long it will take.
    Senator Leahy. Mr. Chairman, I just wonder, if I might, as 
I am listening to this, I reread my statement, and I think the 
Senator from Arizona makes a good point. This is probably going 
to ruin his reputation back home if he finds out that I might 
agree with him on something. I would change my sentence to 
read--and ask consent to change it in the statement so that the 
statement reads, ``This bill remains a solution to an unproven 
and largely non-existent problem, and no amount of tinkering 
would solve that''--which is my feeling. I would strike the 
words ``crude and partisan.'' The Senator from Arizona is 
correct.
    Senator Kyl. I appreciate it.
    Chairman Specter. Thank you for that, Senator Leahy.
    Mr. Waxman. Mr. Chairman, I will just take a few minutes on 
each of the remaining sections, and I invite questions. I am 
really only here to answer the Committee's questions, not to 
make a stump speech, and I realize that--
    Chairman Specter. It is not a stump speech. It is very 
profound, and you are obviously very knowledgeable, and it is 
very helpful.
    Senator Leahy. Trust me, we know stump speeches up here.
    [Laughter.]
    Mr. Waxman. My daughter was very fond of saying, before she 
went off to be an undergraduate at the University of 
Pennsylvania, her stump speech was that there is nothing more 
dangerous in this country than her father in front of a 
microphone without a red light.
    [Laughter.]
    Mr. Waxman. Which is what they have in the Supreme Court 
that tells you to stop. I was, you know, very respectful of the 
timer in front of me until the Chair gave me permission that he 
probably did not realize would have such a dramatic effect. But 
let me just trip through my objections on--my concerns about 
the other provisions.
    Chairman Specter. Go ahead.
    Mr. Waxman. And then solicit questions.
    Much of what I had to say about Section 4 on procedural 
default is also the case for Section 2 on exhaustion of mixed 
petitions. In my written testimony, I went through how the 
exhaustion doctrine is one of timing and not one of extinction 
or not one of preclusion, but this exhaustion remedy does 
change that.
    In a perfect world, all constitutional claims would be 
raised in State courts before they go to Federal court. That is 
the comity rule that the exhaustion doctrine respects. And in 
very large part, the existing doctrines with respect to 
requirements for exhaustion and the requirement that mixed 
petitions be dismissed has enforced that rule, but we do not 
live in a perfect world. We have to have a failsafe for those 
instances in which there is a darn good reason why there has 
not previously been exhaustion.
    We have a world in which many, many, many, many, many 
prisoners appear pro se. Many of them who do not appear pro se 
have lawyers that can only be charitably called incompetent. We 
have instances--Brian Stevenson was here last time talking 
about instances in which State courts on post-conviction have 
refused to rule for years and decades. And we have instances, 
regrettable but documented, in which an errant prosecutor will 
stonewall legitimate discovery requests, the State court will 
not order it, and like in Banks v. Dretke, the information only 
comes out in Federal court.
    And there are plenty of instances--Mr. Eisenberg talked 
about stay and abey and how it is abused. Well, first of all, 
the Supreme Court just decided a case this year, Rhines v. 
Weber, that puts very stringent restrictions on the ability to 
go back and exhaust unexhausted claims. And we have not seen--
there is no reason to think that that will not solve whatever 
problem exists. But more to the point, there are many instances 
in which it is the State, not the defense, that in the instance 
of an unexhausted claim, with good cause, the State refuses to 
waive and insists that the prisoner go back into State court 
and exhaust. And in Pennsylvania itself, the case of Aaron 
Jones, which Mr. Dolgenos testified about last week at the 
House Judiciary Committee hearing, and the Brinson case, which 
I can discuss in detail and I am sure Mr. Eisenberg is familiar 
with, are instances in which, in one case a Brady violation, in 
another a Batson violation, came to light while in Federal 
court. The defense in the Jones case by defense counsel and in 
the Brinson case by a pro se prisoner implored the prosecution 
and the Federal court not to send them back to what the 
prisoner in Brinson called ``the morass'' of the State post-
conviction proceedings, but just address the merits. And in 
both instances, it was the prosecution that insisted on stay 
and abey so that there would be exhaustion.
    But, in short, I don't think that there is, particularly in 
light of Rhines v. Weber, a significant problem or a problem of 
any dimensions at all with abuse of the existing law on the 
exhaustion requirement on mixed petitions, and all of the 
things that I said about the no-involvement standard of 
innocence, proof requirement up front, also apply here.
    Chairman Specter. Mr. Waxman, are the other sections 
covered in your written statement?
    Mr. Waxman. Yes, they are.
    Chairman Specter. I think we will move on then. Thank you 
very much for that.
    [The prepared statement of Mr. Waxman appears as a 
submission for the record.]
    Chairman Specter. We are going to come back to you, Mr. 
Eisenberg, before questions to give you a chance to offer any 
comments or rebuttal to what Mr. Waxman has said.
    Our next witness is Judge Howard McKibben from the District 
of Nevada, appointed to the Federal bench in 1984, had served 
on the State court for 7 years before that, was a district 
attorney, a very outstanding academic record.
    Thank you very much for joining us, Judge McKibben, to 
testify on behalf of the Judicial Conference.

STATEMENT OF HOWARD D. MCKIBBEN, SENIOR UNITED STATES DISTRICT 
 JUDGE FOR THE DISTRICT OF NEVADA, AND CHAIRMAN, COMMITTEE ON 
 FEDERAL-STATE JURISDICTION, JUDICIAL CONFERENCE OF THE UNITED 
                      STATES, RENO, NEVADA

    Judge McKibben. Thank you very much, Mr. Chairman, Senator 
Leahy, and members of the Judiciary Committee. It is always a 
little daunting to go after someone like Seth Waxman. I must 
say, in court I am always delighted to have attorneys like Mr. 
Waxman appear. It makes the judge's job a lot easier when they 
can articulate issues as clearly and concisely as he does, and 
so I am delighted to join this panel.
    I will make my remarks brief, and I would ask that a copy, 
Mr. Chairman, of my remarks be made a part of the record.
    The Judicial Conference Committee on Federal-State 
Jurisdiction, which I chair, is one of the few committees of 
the Judicial Conference that includes State court judges as 
members. We have four chief justices of the supreme courts on 
our committee, and they have provided substantial input in 
connection with the issues that have been raised in the bill 
that is before you.
    Our Committee serves as a conduit for communication of 
matters of mutual concern between the Federal and State courts, 
and I have a special affinity for State courts, having formerly 
been a State trial judge and a State prosecutor.
    Let me say to the members of the Committee, the judiciary 
hears your concerns about delay in processing some habeas cases 
in the Federal courts. We support the elimination of any 
unwarranted delays in the fair resolution of habeas cases by 
State prisoners in the Federal courts. And, Senator Kyl, I know 
that you have provided the Committee with information that 
shows that some cases, capital cases, have been pending in the 
Federal courts for a significant period of time. Our 
preliminary statistical data--and we have requested that--does 
not appear to show a significant delay in the processing of 
non-capital cases. The information with respect to capital 
cases is, at this point, what I would call inconclusive and 
does, in fact, suggest the need for further analysis.
    As you know, the Judicial Conference has urged in previous 
communications to this Committee that a careful analysis be 
undertaken to determine if, in fact, there is any unwarranted 
delay and, if so, the causes of such delay before Congress 
further amends the habeas corpus statute. And I would indicate 
that it is very difficult--having handled capital cases and 
non-capital cases over the years I have been on the Federal 
bench--it is very difficult to take the statistics and look at 
them and say it took X number of months or X number of years to 
resolve this case and know what actually happened in the case 
as to whether or not what, in fact, happened was reasonable. 
Was it a reasonable period of time? Were there reasons for the 
delay and the ultimate disposition of the case? And that 
requires a fairly systematic review of those cases to make that 
determination.
    Second, the Judicial Conference opposes provisions in the 
Streamlined Procedures Act that would shift from the Federal 
courts to the Attorney General the decision for determining 
whether a State has met the requirements to opt in to the 
provisions of Chapter 154, those provisions that would impose 
specific time deadlines on the courts of appeals for deciding 
habeas petitions, those provisions that would change the 
procedures by which the Federal courts consider applications 
for expert services, and those provisions that would apply the 
provisions of AEDPA and the Streamlined Procedures Act 
retroactively.
    Third, with respect to limiting Federal court review of 
habeas claims, in September of this year, as you will recall, 
the Conference expressed its opposition to certain provisions 
of S. 1088, as adopted by the Senate Judiciary Committee in 
July, that have the potential to undermine the traditional role 
of the Federal courts to hear and decide constitutional claims, 
with appropriate deference to State court proceedings, and to 
prevent the Federal courts from reaching the merits of habeas 
corpus petitions by adding procedural requirements that would 
complicate the resolution of those cases and, in the opinion of 
the Conference, lead to protracted litigation.
    We recognize that this Committee has continued to make 
changes in the legislation through the adoption of a second 
substitute amendment in October. We are, however, concerned 
that the legislation may still limit Federal court review of 
meritorious constitutional claims inappropriately.
    Fourth, the October substitute recasts the cause and 
prejudice standard defined and developed by the Supreme Court--
and as Mr. Waxman has eloquently indicated to you, that is an 
extremely well-settled doctrine in our jurisprudence, which we 
rely on all the time. And that has been in existence, I think 
for about 27 years, 28 years. And it recasts the cause and 
prejudice standard in mixed petitions, procedurally defaulted 
claims, and amendments to claims in a manner that we have not 
seen before. These revised standards have never before applied 
in this manner. They create complexity and could further delay, 
not expedite, the resolution of Federal claims. And I think 
that is an important point. Complying with such standards may 
be even more problematic in cases where the applicant did not 
have counsel in the State post-conviction proceeding.
    Now, the October substitute would redefine prejudice, as we 
understand it, as a ``reasonable probability'' that, but for 
the alleged error, the fact finder would not have found that 
the applicant ``participated in the underlying offense.'' The 
reference to the underlying offense changes the focus of the 
traditional role of habeas from whether an error infected the 
entire trial, with error of constitutional dimension--and not 
every error clearly would be cognizable, but those that infect 
the entire trial with error of constitutional dimension are--to 
whether the error would cast doubt on the claimant's 
participation in the underlying offense; not just if the 
individual is guilty of the underlying offense. Constitutional 
errors that affect whether a person should be sentenced to 
death may not be reviewable under such a standard because such 
errors may have no bearing whatsoever on whether the applicant 
participated in the underlying offense.
    There is a similar concern with the modification of the 
actual innocence standard. As with the revised cause and 
prejudice standard, this provision could foreclose review of 
sentencing errors, and it appears that it would and, thus, is 
inconsistent with Conference policy.
    Fifth, the October substitute takes the restrictive 
standards of Section 2254(e)(2) and for the first time, as we 
understand it, uses them to limit a person's access to Federal 
court review of unexhausted and procedurally defaulted claims 
and amendments to petitions in capital cases under Chapter 154.
    And, finally, AEDPA already sets a very high bar when 
Federal courts consider claims that a habeas petitioner failed 
to raise in State court, and, as such, appropriately recognizes 
the deference that Federal courts should give to State court 
proceedings. In just the past 3 years, the Supreme Court has 
considered over 19 cases addressing issues raised by the 
passage of AEDPA, and that is a very large number of cases for 
the Supreme Court to consider and decide. Nine of those 
decisions were handed down this past year. Only now is the law 
becoming somewhat settled with respect to AEDPA. If Congress 
substantially revises the procedures in habeas corpus cases, 
there is a concern that it most certainly would invite a new 
round of litigation on statutory and constitutional issues, 
complicating and protracting, not expediting, we believe, the 
consideration of habeas petitions in Federal courts.
    In closing, Mr. Chairman, I thank you for the invitation to 
address the Committee. I know that the members of the Committee 
and the judiciary share a common goal to preserve and protect 
the fundamental fairness and integrity of our criminal justice 
system. I thank you very much for your time.
    [The prepared statement of Judge McKibben appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge McKibben.
    Mr. Eisenberg, would you care to offer some additional 
comments at this time in response to what either Mr. Waxman or 
Judge McKibben said.
    Mr. Eisenberg. Thank you, Mr. Chairman. Just a couple of 
points, if I may.
    The argument is made that the existing cause and prejudice 
standard for procedural default is so settled and so 
satisfactory that Congress did not even consider a need to 
address the issue when it passed AEDPA. And it is true that 
AEDPA does not address that issue.
    The problem is what has happened since AEDPA. Since AEDPA 
tightened up on other aspects of habeas review, cause and 
prejudice and procedural default has been used as a means of 
essentially circumventing those limitations.
    Now, as to the cause and prejudice standard itself, our 
problem is that we cannot even get to it in some many cases 
because the doctrines in habeas corpus allow the Federal court 
first to decide under the label of ``adequate and independent'' 
whether the State court rule should be given any effect at all 
in Federal court. And unless and until you pass that threshold, 
the court in Federal habeas review does not even have to 
consider cause and prejudice. So that is our initial roadblock 
and one of the main things that the current legislation 
addresses, is the power of the Federal court to simply throw 
out the State procedural rule without any reference to cause 
and prejudice, to simply say it does not count. And when the 
court says that, it is not just for that case. It is for all 
cases to which that rule might apply.
    We have in Pennsylvania, for example, enacted a post-
conviction review statute that had some similar provisions to 
the AEDPA. We did it around the same time, guided in part by 
the provisions in AEDPA, and we imposed a 1-year deadline for 
filing State post-conviction petitions. We made it clear at the 
beginning of the statute that it applied to all cases, capital 
and non-capital cases.
    The Third Circuit has held that that statute was not an 
adequate ground for finding petitions filed more than a year to 
be untimely, and the reason it was not is because the statute 
did not specifically--the courts had not yet said whether that 
statute really meant what it said or whether the courts might 
create exceptions to the statute along the lines of some of 
their previous court-made doctrine.
    So even a statute whose words were not in any way in 
dispute, whose words were clear on their face--there was no 
dispute from the Federal court about the clarity of the 
language or the consistency of the application, once the issue 
reached the State courts, even that statute was not considered 
to be an adequate ground for a default because the Federal 
court said, well, there was all this time before the State 
courts first started interpreting it, and, yes, once they did, 
they applied it exactly as it was written, and they have 
consistently done so ever since; but, hey, how were we supposed 
to know what they would do until they addressed it?
    And so no procedural default there for an entire class of 
cases. All capital cases for several years--we do not know how 
many yet--for several years after the statute was passed, which 
were defaulted in State court because they were found untimely, 
are now being allowed review in Federal court, which will mean 
complete review, no deference standard to the decisions in 
State court because the State courts did not reach the merits. 
They applied their statute and found those cases time-barred. 
The Federal court is now going to get to review those cases 
despite the default.
    Now, when we get there and they apply that default, of 
course, it is going to apply to all sorts of claims. The 
argument has been made that the new statute will limit cause 
and prejudice to prejudice going to the underlying offense. 
Well, that is the argument that we keep hearing about the need 
for expansive Federal habeas corpus review, that we have to 
protect innocence. And, clearly, this standard does so.
    But let's keep in mind when it comes to considering 
limitations to the cause and prejudice standard and the 
innocence provision of those exceptions that we are talking 
about cases that were supposed to be defaulted to begin with. 
We are not saying that you cannot raise constitutional 
violations in Federal court. We are saying you have to follow 
the rules to do so. And the question in this area is the 
breadth of the exceptions that we will make if you do not 
follow the rules.
    The argument essentially is being made that we cannot limit 
those exceptions, that even if you default your claims in State 
court, even if you try to get into Federal court through one of 
these exceptions, you should have essentially as broad review 
as if you had not defaulted your claim in State court. And that 
is not going to ensure any sort of compliance with the 
procedural rules that the habeas corpus statute establishes and 
that the courts have been developing for decades, even before 
AEDPA was passed.
    There have to be narrower standards for the consideration 
of claims that are not really properly before the Federal court 
at all than for those claims that are in order to hope for any 
sort of compliance by the petitioner in State court with the 
rules that we are entitled to apply. The Federal courts have 
their procedural rules, we have our procedural rules, and they 
are entitled to deference in Federal court as well. And I think 
that that is what the case law and what this legislation tried 
to establish.
    Let me speak very quickly to the Rhines point because I 
think that is a significant one, the recent case concerning 
stay and abey.
    The Supreme Court, because it is a court and not a 
legislature, established in Rhines exactly the kind of 
amorphous judicial standard that invites rather than limits 
further litigation. The lower courts are now going to have to 
go back and look at what Rhines said and they are going to have 
to decide, well, what is good cause in a particular case, what 
are the underlying merits of the claim, and a whole body of 
case law will be developed, and even once it is developed, 
there will still be litigation about the application of those 
amorphous standards to the facts of individual cases. That is 
exactly the kind of problem that we are talking about, is the 
existence of these kinds of generalized standards that require 
years, add on years to the process of litigating these claims.
    I would like to look in that respect at the bottom line 
with reference to the statistics that Judge McKibben mentioned 
from the Administrative Office of United States Courts. He 
referred to statistics that I believe are mentioned on pages 2 
and 3 of the attachment to the letter that was filed with the 
Committee by the Judicial Conference in September of this year, 
and those statistics shows that over the last 6 years, the time 
to dispose of a capital case on Federal habeas corpus review 
has increased--increased--by 50 percent just over the last 6 
years, and it has nearly doubled in the district courts. The 
time from filing to disposition in the district courts went 
from 13 months in 1998 to 25.3 months in 2004, and the time 
from filing of the notice of appeal to disposition of a capital 
appeal in the Federal courts of appeal went from 10 months in 
1998 to 15 months in the year 2004.
    Now, I cannot vouch for the accuracy of those statistics, 
but I can certainly tell you that they are consistent with my 
experience and with the experience of my colleagues and that 
they show that the problem is not getting better as the result 
of AEDPA, as Congress intended. It is getting worse.
    The statistics also refer to delays in non-capital cases, 
and the point is made that according to those statistics, the 
disposition rates for non-capital cases have not increased in 
the way that they have for capital cases. What those statistics 
also show, however, is that the disposition rates for non-
capital cases have not decreased despite AEDPA, despite the 
reforms that Congress put in place 10 years ago, there has been 
no movement, even in the disposition rates for non-capital 
cases.
    Now, AEDPA was supposed to help speed things up. 
Significant new provisions like the time bar, if fairly applied 
I think, should have reduced disposition times even for non-
capital cases--
    Chairman Specter. Mr. Eisenberg, how much more time do you 
think you need on this round?
    Mr. Eisenberg. Thank you for the opportunity, your honor, 
and that would be my last sentence. That times are increasing 
for capital cases, not decreasing for non-capital cases.
    Chairman Specter. Thank you very much. I am going to yield 
my opening round of questions. Senators have 5 minutes to 
question. I am going to yield my opening round of questions to 
Judge Kyl, and then we will come to Judge Leahy for 5 minutes, 
and then we will go back to Judge Kyl for five minutes.
    [Laughter.]
    Senator Kyl.

  STATEMENT OF HON. JON KYL A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. I am still enough--

    Chairman Specter. I am just trying to promote you a little.

    Senator Kyl. Yes, and I appreciate that. I am still enough 
in awe of judges, I begin by, ``May it please the Court.''

    I want to begin by saying thank you, Mr. Chairman, for 
holding this hearing and for all of your cooperation and your 
staff's significant cooperation as well. They have spent 
hundreds of hours on this.

    To all three witnesses, very much appreciate your being 
here, and particularly, Mr. Waxman, with I suspect what you 
charge per hour. I was moved by your point at the beginning of 
your testimony that this is important work and you are willing 
to devote your abilities to this work. I appreciate that very 
much. For somebody like Mr. Eisenberg on the front lines of 
this battle to relate to us the kind of experience that you 
have I think is very, very important to our deliberations.

    Obviously, we have started a great debate here and I think 
it is a debate worth having. I think the fact that the debate 
has occurred has made the legislation better. I still think we 
have a problem to address, and in the relatively brief period 
of time that I have, I would like to begin with that, but 
preliminarily to make this general observation. It seems to me 
that what we have started here is a debate about those on one 
side who are really reluctant in any way to reduce the 
potential impact of a habeas petition on the one hand, and 
those on the other hand, Mr. Eisenberg, represented by what you 
characterized as your bottom line here, which is that because 
of the delays and the difficulties in dealing with all of these 
habeas positions, there has to be a difference between those 
cases in which the procedural rules in the State courts have 
been complied with and those that have not, and if that is the 
intent of our legislation here, to draw that distinction and 
try to speed that process. We had tried to do it in AEDPA, and 
I think the point is that with respect to capital cases at 
least the situation has gotten a lot worse. That is really what 
I would like to begin with and then ask for your comments.

    We have adduced evidence in previous hearings and in 
written submissions that relate nationally, but I just wanted 
to have you consider what the Arizona Attorney General's Office 
came up with since our last hearing. These are primarily 
capital case statistics, so they relate to our most serious 
issues.

    The Arizona study examined the appeals of all of the 
prisoners currently on death row, over 100. There are 76 
capital cases pending in Federal Court, which represents over 
two-thirds of Arizona's pending capital cases. And although 
some were filed recently, over half of the cases have been 
pending in Federal Court 5 years or more. This is in Federal 
Court now. Of those, 13 cases have been pending for 7 years; 10 
cases have been pending for 8 years; five cases have been 
pending for more than 15 years. I suspect that all of you would 
agree that that is far too long, that that suggests that 
something has to be done, not only for the citizens who have to 
pay for all of this, and the judges whose time it takes up, the 
prosecutors who are dealing with it, but also the victims.

    The study of the Arizona Attorney General's Office further 
found that only one of the 63 Arizona death penalty cases filed 
under the AEDPA standards has moved from Federal District Court 
to the Ninth Circuit, only one. That case has been in the Ninth 
Circuit for over 5 years. 28 of Arizona's capital cases have 
been pending in District Court for between six and 8 years. One 
of the Arizona death penalty cases has been on Federal habeas 
review for over 19 years. There is no justification for that. 
Two of the cases for over 18 years, one for over 16, one for 
over 14, another for over 12. Clearly there is a problem, so I 
think we have to decide how are we going to try to address the 
problem.

    Now, AEDPA tried to set up a method by which States, if 
they provide a lot of resources and good counsel, could 
presumably get around one of the issues which was the lack of 
good counsel, and therefore, could be held to a higher 
standard, and to compliance with State procedural rules. I 
would appreciate your views as to whether that general approach 
is generally a good approach? Is that an approach worth working 
on?

    Mr. Waxman, in that context, I think you may have misspoken 
slightly. You said that AEDPA did not seek to change Wainwright 
because it is so subtle, but in fact, Section 154 does adopt a 
more stringent test, does it not? In other words, that is what 
we are trying to get at, is if you really provide good counsel 
and other resources, then we are entitled to provide some 
limitations, some speedier access to the courts.

    I will just ask all of you to comment on what I have said 
here since I am done with this first 5-minute presentation. 
Please, all of you take a crack at what I have just said, which 
will enable you to also talk about anything else you probably 
wanted to talk about, starting, Judge McKibben, with you, and 
then Mr. Waxman and Mr. Eisenberg.

    Judge McKibben. Thank you, Senator Kyl. I appreciate the 
concern that you have expressed about the cases in Arizona. I 
know that there are cases in other districts where they have 
been on the dockets for a substantial period of time. This 
bill, as I understand it, addresses all habeas, capital and 
non-capital cases. As I indicated earlier--and the Conferences 
looked at this--there is no indication in the non-capital cases 
that there is any significant delay. I have heard Mr. Eisenberg 
refer to the fact that there should be a decrease, perhaps 
since AEDPA, in the time on non-capital cases for disposition, 
but an average 6-month turnaround time on non-capital cases is 
about as short a time as you are going to have in the Federal 
Court from the time of a filing. If the case is one where 
counsel will be assigned, to have the State come in, usually 
with some continuances and request an additional period of time 
to file a response, and for the Court then, if there is any 
discovery--normally you would not have discovery--but if there 
is some discovery, to dispose of a case like that on average in 
6 months is even a faster disposition of the case than you 
would have in virtually all of your other civil cases.

    So it does not appear, when we look at the statistics, that 
there is any problem with respect to the timely disposition of 
cases when they are non-capital cases. And yet this bill 
applies to the non-capital cases too and sets some very severe 
restrictions on how a non-capital defendant is able to secure 
any relief, even in the sentencing area. Certainly if there are 
substantial problems in the trial process or selection of 
juries, then not being able to enter the Federal Court unless 
you meet this very high standard of showing that the factfinder 
would not have found the defendant participated in the 
underlying offense is a significant problem.

    Putting that aside and addressing the capital cases, the 
preliminary data that we have suggests, at least in some 
districts in the country, that there should be a systematic 
analysis of what caused delay. You cited one case that lasted 
for around 18 years without being disposed of. I do not know 
what the facts or circumstances of that case are. It would have 
to be analyzed. I know there are cases where people have been 
determined to be incompetent. That case remains on the court 
docket. It is not a closed file until there is ultimately a 
disposition, and you would not have a disposition if the 
individual is incompetent. I have no way of knowing if that is 
that particular case, but there are reasons why cases can 
remain on the docket a relatively long period of time. The 
Conference is recommending--and I think it is a prudent 
recommendation--that there be a study to determine whether 
there are systemic problems in our system or if there are some 
isolated cases which require better case management by the 
judge that handles the case.

    That basically, Senator Kyl, would be my response to the 
question. Until that study is undertaken and the facts are 
determined on an individual basis in those cases--and I think 
we can isolate those cases, whether they amount to 100 cases 
throughout the country or whatever, and closely analyze them 
and see the reasons for the delays--we can't draw any 
conclusions. Many of those delays are as a result of the case 
going back to State court for exhaustion.

    Senator Kyl. Mr. Chairman, since I have the next round, and 
I do want you to go ahead and run the clock and so on so I do 
not take too much time, but could I do a quick followup just on 
that last point?

    Chairman Specter. Certainly.

    Senator Kyl. Our bill sets only two limits. One is a 300-
day limit on issuing Court of Appeals opinion after briefing is 
done, and then a 90-day period to rule on a petition for 
rehearing in the Court of Appeals. Are those periods 
unreasonable in your view?

    Judge McKibben. The Conference has consistently taken a 
position that time limits should not be established.

    Senator Kyl. So no time limit would be reasonable then.

    Judge McKibben. I would not say that no time limit is 
reasonable. In the statute you already have provisions for 
expeditious consideration of habeas cases, and the court 
obviously considers those to be important cases.

    Senator Kyl. Thanks.

    Mr. Waxman.

    Mr. Waxman. Thank you very much, Senator Kyl.

    I have never seen, or for that matter heard of the Arizona 
study. The statistics you cited were quite interesting, and on 
their face quite perplexing and troubling. For me the question 
that I really have is, why? What is it that is causing these 
cases to lag in State courts or in Federal courts, both the 
trial courts or the appellate courts.

    Senator Kyl. Excuse me. By the way, I will get that written 
study to all of you so you can take a look at it.

    Mr. Waxman. Very much appreciated. But I want to make a 
couple of points. First of all, the statute of limitations 
provision that AEDPA introduced, and Mr. Eisenberg referred to, 
and most of the provisions of the law that we are considering 
now, Section 2 and Section 4, for example, do not deal with how 
long cases pend in State courts or Federal courts. They talk 
about what claims Federal courts will be able to hear and how 
soon you have to get to Federal court, but they do not address 
the problem of lapses of time either in State court and Federal 
court, and you could have--and some partisans on each side have 
engaged in sort of a tit-for-tat debate about, well, you know, 
there is one State court case where there is a totally innocent 
guy and the State court has refused to rule for two decades. 
Brian Stevenson had some of them. There are other cases where 
we have heard about a Third Circuit case--I have forgotten the 
case, Abu somebody or other--where the Third Circuit just has 
not ruled in--there is not even a briefing schedule.

    We have a very large system and there are always going to 
be cases where delays are perplexing and inexcusable. The 
question is, is there a systemic problem, and if so, what is 
it? Now, if the problem is lapses of time in State or Federal 
courts, that ought to be addressed. It ought to be addressed 
either with rigid limits or with some sort of flexible limits 
or presumptions to get the courts to give the kind of priority 
that the Congress concludes these cases should have, with a 
reporting requirement to the Administrative Office if it is not 
decided, or to the Chief Judge, or something like that. But 
rules about procedural default and exhaustion and things of 
that nature do not address at all how long things take in 
court. In fact, they extend the amount of time that things take 
in court.

    I mean you have now provisions in this law that--I will go 
to the question of what the study shows about the length of 
time that Mr. Eisenberg was referring to. As Judge McKibben has 
explained, just in the last few years the Supreme Court has 
decided 19 cases interpreting resolving interpretive 
difficulties in AEDPA. While each one of those cases was 
proceeding, the lower Federal courts basically held their 
cases. The supreme courts granted cert on a question about what 
this language means and does not mean, and for the most part, 
those cases sat in the lower Federal courts until the Supreme 
Court decided it.

    So the period of time that the Administrative Office 
studied was a period in which there were almost two dozen 
provisions of AEDPA that were being--whose meaning was 
filtering its way through the Federal courts and was being 
resolved by the Supreme Court. I could go through this proposed 
legislation and identify phrases or tests or standards that are 
applied, for example, you know, under Section 5. The tolling 
provision relates to a properly filed State court petition.

    I do not mean to be a cynic, but I am rapidly approaching 
you 54th birthday and I have been in the practice of law a long 
time. There will be enormous litigation over the application of 
that new standard, a properly filed petition, to the facts of 
dozens and dozens of cases. And as sure as the sun sets in the 
west, there will be conflicting interpretations. It will go up 
eventually to the Supreme Court, and dozens and dozens and 
dozens of cases will be held up while the interpretive process 
of this body of the Congress's latest effort to inject new 
standards into an already complicated area gets resolved.

    I think that it is, Senator Kyl, with respect to counsel, I 
said before--and I know you are not only fishing for 
compliments for your State, but I think Arizona is the one 
State that has made a serious effort to comply with Chapter 
154. It may have taken longer than it should have. The Ninth 
Circuit may or may not have been right in denying application 
of the benefits of that regime in the actual case in which it 
decided that the State had qualified. But what I find very 
telling is that Arizona really does stand alone. There really 
is no other State that has tried to avail itself of the Chapter 
154 procedures. There were a couple of States early on which 
basically said, we either have counsel or we would like to have 
counsel, please allow us in, and those were plainly non-
meritorious claims.

    The next closest State, it happens geographically, is 
Senator Feinstein's State, California. California instituted a 
mechanism. It tried to get this adjudicated. It tried to 
qualify through by means of a suit under Section 1983. It went 
all the way to the Supreme Court of the United States, which 
about 10 years ago said, ``No, no. This has to happen in 
habeas.'' Since that time I am not aware of any effort by the 
State of California to improve its standards or to even raise 
this issue again. I am not criticizing California. California 
is the next best example, but I think before tinkering with 
Section 154, which I think was a good idea, I think that the 
Senate ought to look at why it is that States are not trying to 
do it.

    I suspect that what the data will show are that it is for 
either one or both of the following reasons: either because the 
existing doctrine, as narrowed by the Supreme Court prior to 
AEDPA and as changed by AEDPA, has proven by and large so 
satisfactory to prosecutors, that there is not really any great 
compelling--there is no felt need to try and qualify for the 
even stricter standards under Section 154, and there are many 
States in this union for whom qualification under 154 would be 
an amazing sea change, States where there is no system of 
indigent defense period, let alone in post conviction, and the 
steps that would be required to qualify seem like a bridge too 
far.

    So I certainly supported at the time and continue to 
support the principle that more stringent standards apply under 
Section 154 to States that actually provide competent counsel, 
but I do not think that it would be wise or that we have any 
data on which to tinker with Section 154, because thus far only 
one State has sought to comply, it has now been certified, and 
we do not really have--enough time has passed to know exactly 
how the Ninth Circuit in particular will treat Arizona now that 
it has in fact complied.

    Judge McKibben. This is an important issue and I do not 
know if I could have just two minutes to followup on the opt-in 
provisions under 154, Mr. Chairman.

    Chairman Specter. Please go ahead, Judge McKibben.

    Judge McKibben. I did secure yesterday some preliminary 
statistics in this area because I was trying to determine what 
other States have taken the major steps that Arizona has, as 
Seth Waxman has already indicated, which I think are 
substantial. Not many States have done that and come as close I 
think as you can come to qualifying in the Spears decision and 
probably will in the future. But it appears that there have 
been five States that have reasserted their entitlement to opt 
in to 154, and Arizona is one of them, and Maryland, Ohio, 
Florida and Mississippi. There have been 12 States that have 
been denied certification, but they have never reapplied for 
certification since the denial, and 19 States have not ever 
applied for certification or opt-in under 154.

    That would seem to suggest that the mechanism for opting in 
under 154 is one that the States are aware of, but by and large 
the States have not certainly made the effort that Arizona has 
to attempt to opt in.

    I think it is something that the Committee should study 
long and hard before making the decision to shift the 
responsibility for making the decision whether or not the State 
qualifies for opt-in status from the courts to the Attorney 
General as suggested in the statutory provisions. When the 
Powell Committee adopted the report through the Conference, 
there was certainly a role for the Federal courts to play at 
that time, and I do not think there is any empirical data to 
suggest that the procedure has not been appropriately 
considered by the courts in resolving whether or not a State 
has appropriately opted in. In fact, in the Arizona case it was 
conceded that they had not complied strictly with the 
provisions, and the question was whether the Ninth Circuit 
properly determined that that should be waived.

    Senator Feinstein. Mr. Chairman, on this point, because I 
have to leave, something has just been brought to my attention 
about California. Might I just mention it to the panel and see 
if the know about it?

    Chairman Specter. Yes, you may, Senator Feinstein. And I 
know the sequence is unusual and causing concerns all around. 
So I am going to ask the panel to be very brief in responses so 
we can move to Senator Leahy and the other members.

    Senator Feinstein. And I will try and be very brief.

    It is my understanding that there is now a joint task force 
between the Ninth Circuit and the State of California that is 
trying to address these issues, and that a disproportionate 
number of capital habeas cases involving delays in over a 
decade come from California. What I am told is that all habeas 
cases are automatically heard by the California Supreme Court. 
However, due to the volume of cases before it, the Court does 
not have time to grant hearings, and generally issues what is 
called a ``postcard denial.'' Consequently, when cases are 
appealed to the Federal Court there is no record to rely on, 
and the judges have to start over from scratch, causing delays 
and often requiring hearings at that point, which take 
additional time.

    Is this in fact correct to the best of your knowledge? 
Would that account for the problem in these capital habeas 
cases from my State?

    Judge McKibben. Well, from speaking with my colleagues in 
California and particularly in the Central District, the 
Northern District and the Eastern District, where they have the 
great volume of those cases, there is every indication that 
when the case is filed in Federal court that a great deal of 
the record may have to be developed in the Federal court, and 
that is extremely time-consuming if those matters are not 
fleshed out by the California Supreme Court.

    Now, whether or not there is an intermediate Court of 
Appeals that resolves some of those issues, I cannot say 
because I am not that familiar with the California practice.

    Senator Feinstein. Because I do not know whether the long 
cases that Senator Kyl is referring to are essentially 
California cases, the 20-year case, but there should not be any 
excuse for that in my view. And if these are the postcard 
denials that then do not have a record, and then go to Federal 
court, and then the whole thing has to start again because the 
State court is not doing what it should, we should know that 
and correct it.

    Judge McKibben. Having the records in Federal court--you 
know, as a judge, it is extremely important to have that record 
and have it early. We have a case in Nevada--and it is partly 
out of California--in which the record is over 400,000 pages.

    Senator Feinstein. If anybody has anything to add to that. 
But I am going to look into that one aspect with the California 
Court, Mr. Chairman, because this is kind of news to me.

    Chairman Specter. Thank you, Senator Feinstein.

    Senator Leahy.

    Mr. Eisenberg. Mr. Chairman, might I say a word about the 
postcard denials very briefly?

    Chairman Specter. Yes, you may.

    Mr. Eisenberg. I appreciate it. Thank you.

    Chairman Specter. To the extent you can make it brief, we 
would appreciate it.

    Mr. Eisenberg. Senator, my understanding is that in many of 
those cases of postcard denials, the reason for the denial is 
essentially a procedural default, a timeliness ruling. And when 
the case gets to Federal court they should not be starting over 
from scratch. They should be applying the default. And much of 
the litigation in California cases, I believe, has been the 
result of the failure to apply those defaults.

    When the case gets to the California Supreme Court, 
moreover, it has already been typically through other courts 
along the way up, both on direct appeal and collateral review, 
and therefore, there is going to be some disposition of those 
claims either on procedural grounds or substantive grounds from 
the lower courts that the Federal courts should be looking to 
and deferring to to the extent that they can reach those claims 
at all.

    I think the delays that we are talking about, the time 
periods that you are hearing, are the time from when the case 
gets to Federal court, not the time that it is spending in 
State court, and I think that those delays are difficult to 
explain.

    Chairman Specter. Senator Leahy.

    Senator Leahy. Mr. Chairman, I would ask first to put in 
the record a number of things, including the ABA's concerns 
about this.

    Chairman Specter. Without objection that will be made a 
part of the record.

    Senator Leahy. Judge McKibben, you will not recall this, 
but we met not long after you became DA of Douglas County?

    Judge McKibben. That is correct.

    Senator Leahy. I was out there for a prosecutors' meeting. 
I had hair then. So did you. You still have yours.

    [Laughter.]

    Judge McKibben. Barely.

    Senator Leahy. Mr. Waxman, I found out this morning that a 
modified version of a provision from this bill has been slipped 
into the current draft of the House-Senate Conference Report on 
the PATRIOT Act reauthorization provision. The reason for some 
of the surprise is neither the House nor the Senate PATRIOT 
bill, actually neither the House nor the Senate has ever passed 
this provision in any form. As it appears in the Conference 
report which we just got a couple of hours ago, the provision 
would shift from the Federal courts to the Attorney General of 
the United States, the responsibility for determining whether 
the State has established a qualifying mechanism for providing 
competent counsel to indigent defendants in State post-
conviction proceedings, and that would be subject to review by 
the D.C. Circuit.

    The Attorney General would write the rules for certifying 
State systems. States need only substantially comply with the 
statutory requirements in order to qualify. Once a State has 
been certified, and that certification has been upheld in 
appeal, there is no apparent way for a State to be decertified, 
even though they may decide to totally change their system 
after getting certification.

    I had my staff provide you with a copy of the new proposal. 
I think you have probably had about 5 minutes to take a look at 
it.

    Assuming the proposals I described, what do you think of 
that?

    Mr. Waxman. Well, I would not favor it. I did get a copy of 
it just before the hearing started, and I cannot say--I am not 
an expert at reviewing legislation, and I cannot say that I 
completely understand what the text provides. But my views 
about--

    Senator Leahy. I am not asking you to go into the question 
that was not considered by either the Senate or the House. It 
was just kind of slipped in in the middle of the night by--

    Mr. Waxman. I think that it is dismaying to include in 
legislation dealing with the very serious problem of terrorism, 
a provision that, at least so far as I understand it, has 
nothing to do with that, and that was not considered by or 
voted out of either of the two Judiciary Committees that have 
now held two hearings on this procedure. And so on procedural 
grounds I guess I am sort of surprised about this.

    If I understand the legislation, it would allow the 
Attorney General of the United States, not only to make the 
decision about whether States qualify for Chapter 154, but also 
to set the standards that constitute qualification, whereas now 
in AEDPA, AEDPA actually includes statutory standards.

    I certainly do not think that the statutory provisions 
themselves for qualification ought to be changed. I cannot even 
imagine what the reason is why the Attorney General would have 
authority to do that. But I also think that it is a very grave 
mistake and an unwarranted act to take the process of 
certification, which is essentially an adjudicative process, 
away from an Article III court and give it to somebody who, as 
I said in my written testimony, whoever the Attorney General 
is, whatever their views are, is in the context of an 
adversarial system of criminal justice is a prosecutor.

    Senator Leahy. Correct.

    Mr. Waxman. If I could just finish my sentence. That is 
why, for example, when the Justice Department participates in 
State habeas litigation in the Supreme Court, it either 
participates on the side of the prosecution or it does not 
participate at all. I am not aware of any instance--there may 
be one, but it would certainly be the exception that proves the 
rule--where the Attorney General comes into Federal courts in 
State habeas proceedings on behalf of the prisoner, but there 
are many instances in which I and other Solicitors General have 
filed amicus briefs in support of the State. So I just think 
there is an appearance issue, and since there is no evidence of 
any State that has made a serious effort to try to get into 
Chapter 154 other than Arizona, which has been certified, I 
just do not think there is any cause to turn this decision over 
to the Attorney General.

    Senator Leahy. Mr. Eisenberg suggested that the cause and 
prejudice test was satisfactory before AEDPA was enacted, but 
has become a problem since then. Do you agree?

    Mr. Waxman. I know of no evidence whatsoever to support 
that assertion. I mean he is referring to a particular, I 
guess, Third Circuit decision. I am not familiar with the 
decision. I certainly could look at it, but the notion that the 
cause and prejudice standard has now risen like Frankenstein 
from the crypt to become a problem as a result of AEDPA is a 
perplexing one to me. I do not think that the data would bear 
that out.

    Senator Leahy. I will set an example by being the only 
person who sticks within their time, and I will submit my other 
questions for the record, Mr. Chairman, but I do have a number 
of questions.

    Chairman Specter. Thank you very much, Senator Leahy.

    Senator Kyl, would you object if we went to Senator 
Feingold next?

    Senator Kyl. No, not at all, but I do have some--

    Chairman Specter. We will come back to you.

    Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN


    Senator Feingold. Thank you, Mr. Chairman. I do want to 
thank you for holding this hearing today on the Streamlined 
Procedures Act. I am always sincere when I thank you, but I am 
especially sincere about it today.

    You and others on the Committee have been working over the 
past few months to make changes to this extremely complex bill, 
and I am gratified that we have witnesses here today who can 
help us better understand the bill in its current form, as well 
as the very serious implications this bill could have for our 
criminal justice system.

    Mr. Chairman, I think this is how the Senate should work. 
Before we proceed to report out complex legislation like this 
bill, we must be fully armed with the facts needed to evaluate 
it and allow us to make an informed recommendation to the rest 
of the Senate, and this hearing is an important step in that 
process, and again, I thank you for your willingness to do it 
at a convenient time.

    Mr. Chairman, I would ask that my full opening statement be 
placed in the record.


    [The prepared statement of Senator Feingold appears as a 
submission for the record.]


    Senator Feingold. Mr. Waxman, let me begin by following up 
on Senator Leahy's question. I am trying to better understand 
this habeas language that we understand could be in the PATRIOT 
Act reauthorization Conference Report. As I understand it, it 
allows the Attorney General to certify a State to opt in to 
Chapter 154 with D.C. Circuit review of that certification.


    As I read the provision, the opt-in procedures would go 
into effect as soon as the AG certifies the State before the 
D.C. Circuit reviews it. Is that correct, and is that not 
problematic?


    Mr. Waxman. I do not know if it is correct, but if it were 
it would be yet another reason why this legislation is 
problematic, as is, for example, Senator Leahy mentioned, that 
apparently the legislation does not include any provisions for 
decertification. Once you have got your delicatessen ticket you 
would be sort of in line forever, if I can really mangle a 
metaphor.


    Senator Feingold. Let me go to Section 5 of the bill that 
modifies the rule for tolling the 1-year statute of limitations 
on Federal habeas petition. Can you explain how that section 
would change current law and whether you think the change is 
justified?


    Mr. Waxman. I do not think that the change is justified, at 
least I do not know of any data or analysis that would suggest 
there is any reason to change it, but AEDPA, for the first time 
in our history, enacted a statute of limitations for access to 
Federal habeas corpus. Many people thought at the time that the 
whole notion of a statute of limitations was completely 
antithetical to the Writ of Habeas Corpus as it has been known 
and practiced ever since magna carta, but concerns about delays 
in getting to Federal court prompted the Congress to take this 
unprecedented step.


    Now, questions have come up since AEDPA was enacted about 
the 1-year statute and what days get counted and not counted. 
AEDPA has a sensible rule that while cases are pending in State 
courts, while State courts actually have the case, you cannot 
charge the petitioner, the prisoner with that time. But the 
question is what about the periods in between? I would have 
though that the law as the Supreme Court has explicated the 1-
year provision under AEDPA is both clear and manifestly 
appropriate. The language that Section 5 now uses to alter the 
existing tolling regime is very unclear. It is not clear what 
is meant by the terms ``original write'' or ``properly filed.''


    I think it is a mistake for it to limit the tolling periods 
for only for the filing, adjudication of Federal claims, rather 
than claims that are pleaded as State constitutional 
violations, but as to which evidence is subsequently revealed, 
constitutes a Federal constitutional claim. Here is my 
overriding point: I do not know, I simply cannot understand 
what this provision is trying to address. If it is trying to 
address anything other than the unique California system of 
successive original writs rather than the normal process of 
applying and appealing to a higher court.


    If it is trying to address something other than California, 
I cannot imagine what it is other than the doctrine, as Mr. 
Eisenberg mentioned, of equitable tolling. I do not know of any 
data--and I would be surprised to see it--that the principle of 
equitable tolling, that safeguard of equitable tolling, is in 
fact a systemic problem or is being abused in any way.


    Senator Feingold. And it applies in all cases, not just 
habeas cases, right?


    Mr. Waxman. Yes, it is what courts do.


    Senator Feingold. Then why would we want to make a special 
exception not to explain this general doctrine in habeas cases 
where individuals' lives and liberties are at stake?


    Mr. Waxman. I do not know, and I do not even know that 
there is a problem that it is seeking to address.


    Senator Feingold. Do you think Section 5 should be taken 
out of the bill?


    Mr. Waxman. I do, and I think even with respect to 
California--I litigated Carey v. Saffold, which is the Supreme 
Court decision that is held up as one in need of remedy. I just 
want to say that California has chosen its own system for how 
it wants to administer its post-conviction proceedings. It has 
done so fully cognizant of how long its own State chosen system 
takes, and if there was any doubt about it whatsoever, it 
certainly became aware of the habeas consequences after the 
Supreme Court decided Carey v. Saffold.


    Now, I understand that prosecutors in California object to 
California's system of post-conviction review, and I think 
actually if I were a prosecutor in the State of California, I 
would too. But I think that they are bringing their case to the 
wrong legislature. I think their case needs to go to the 
legislature of California which has made a sovereign choice. I 
view an attempt to sort of legislate these time limits for the 
special case of California to be profoundly inconsistent with 
principles of federalism.


    Senator Feingold. Thank you, Mr. Chairman.


    Chairman Specter. Thank you, Senator Feingold.


    Senator Kyl.


    Senator Kyl. Thank you, Mr. Chairman. I really want to get 
into the Section 154, but I wonder, Mr. Eisenberg, if there is 
any response that you want to make to the last colloquy between 
Senator Feingold and Mr. Waxman. If so, please do at this time.


    Mr. Eisenberg. Thank you, Senator. I would like to discuss 
the notion that California has essentially chosen its own delay 
by virtue of its own State system. We live in a Federal system 
where the States get to choose varying ways of approaching 
these problems. It is not supposed to be the job of the Federal 
habeas corpus statute to mandate uniformity among the States in 
that regard, but take a look at Pennsylvania, which has chosen 
exactly the opposite approach from California. We have a system 
where cases move through post-conviction review in State court 
very much like in the Federal habeas corpus area. We have a 1-
year deadline which is modeled after AEDPA, and yet our Federal 
courts have refused to give effect to those State rules in the 
same way that the Federal courts in California have refused to 
give effect to the rulings that are occurring there.


    So the notion that it is because of the strange complexity 
of the California system that we have these delays in Federal 
court is false, and in fact, to look at the question more 
largely in terms of, for example, the counsel systems, if you 
look at the States that have done the most to address the 
counsel question--and by the way, my understanding is that 
Arizona still has not been certified despite its efforts in 
that regard, and that California was the State for whom the 
provision in Chapter 154 was most specifically crafted, and yet 
California has been held not to qualify.

    The States that have done the most in providing counsel at 
the post-conviction stage, the State post-conviction stage, 
which is where Chapter 154 focuses, I would suggest are 
actually the States that see the longest delays on Federal 
habeas corpus review. In other words, those delays are not 
shorter. The provision of counsel systems in States like 
California, Arizona, Pennsylvania, where we have had mandatory 
appointment of counsel for State post-conviction petitions 
since long before AEDPA, in those States and in other States in 
areas around the country, outside the areas where the counsel 
complaints are usually made, Mississippi and Alabama and all 
those sorts of places, those are precisely the States where 
some of the longest delays are seen on Federal habeas corpus 
review, and the States which supposedly have the worst system 
of counsel, tend to be States which see some of the shortest 
delays on Federal habeas corpus review.

    So the notion that there is some relationship between 
States not carrying the ball on their counsel systems and 
Federal courts having to delay on Federal habeas corpus, is 
false, it is exactly the opposite.

    Senator Kyl. It might be because there is good counsel in 
those States that are trying to comply.

    Just one quick question, Mr. Waxman, and then a more 
complicated question. I am going to ask them both at the same 
time, so you are answering here. I referred before--I asked 
Judge McKibben, but I did not ask you--about the time limits 
that we include in the bill, the 300-day limit on issuing Court 
of Appeals opinion after briefing is completed and on the 
rehearing, a petition for rehearing, 90 days to rule on a 
petition for rehearing.

    You talked about the fact it would be good to have a study 
to see really why delays were occurring, but that if it were--
that it may well be appropriate to set limits. Would those 
limits be appropriate, in your view?

    And then I am going to ask you one more question on my 
time.

    Mr. Waxman. Is the next one the complicated one?

    Senator Kyl. It is actually not, but it takes just slightly 
longer to ask. I think that what Mr. Eisenberg just said about 
the Ninth Circuit decision in Spears v. Stewart is correct, 
that is to say that even though theoretically Arizona qualified 
in this one particular case, the benefits, the timelines were 
not allowed to be applied in the case, and the dissent in the 
case, 11 of the judges in the full Ninth Circuit review of the 
case, said the qualification aspect of it is strictly dicta, 
they would not apply it. In fact they said, quote, ``To put it 
bluntly, neither we nor any other court is bound by the panel's 
advisory declarations in the case.'' It seems to me very 
uncertain that in any future case the Ninth Circuit, get two of 
the judges out of those 11 on your panel, clearly it is not 
going to qualify. In no case--in other words, have the benefits 
of 154 even been applied in Arizona, and so I am not nearly as 
sanguine as--well, I guess I should ask you how sanguine you 
really are that Arizona will receive the benefits of Section 
154 in the future.

    Mr. Waxman. First of all, with respect to the specific time 
limits in the bill, since I do not--I really have no idea why 
these cases that have been pending for a long time, why they 
have been pending for a long time, and so I guess I would not 
want to say whether I think these limits are appropriate or 
not. I mean certainly 300 days after briefing seems 
appropriate, but I cannot tell you the number of cases that I 
have argued more than 300 days before I have gotten a decision 
both in civil and criminal cases.

    Senator Kyl. [Off microphone.]

    Mr. Waxman. Well, you know, I am an inpatient person and it 
is hard for me to remember these things unless I get a decision 
in real time.

    In terms of Arizona qualifying or not qualifying, on a 
theory that no good deed ever goes unpunished, I now feel like 
I am being called upon to predict, to evaluate the extent to 
which Arizona really has done what is necessary to qualify, or 
the extent to which maybe it has not.

    My understanding was that a majority of the court said that 
it had, and so long as it maintains a system that meets the 
AEDPA statutory standards, it darn well should continue to 
qualify. I have been handed a letter that the Public Defender's 
Office--very excellent as far as I can tell--Public Defender's 
Office in Phoenix submitted to Senator Leahy I guess last week, 
joining issue with Kent Ketane with whom I shared this table a 
few months ago, about the specifics of the cases, and I guess I 
would not want to cast my lot on the facts one way or the 
other.

    My only point here is I certainly do not think we know 
whether or not Arizona will justly get its reward under 154 for 
a system that it has appropriately put in place. We are trying 
to divine essentially like a Rosetta Stone from the one 
decision that Your Honor--you have been called a judge, I will 
call you Your Honor even though you do not have a robe on. We 
just do not know, and in any event, I really do think that it 
would be a bad idea both in practice and in public perception 
to give this decision to the country's chief law enforcement 
prosecutor. I just think that--I do not think the case has been 
made for why that would be an appropriate thing.

    Last, I realize I did not answer an earlier simple question 
that you asked me, which is, is it not the case that there is 
no cause and prejudice standard under Chapter 154, which is 
sort of viewed as this sort of stump-the-witness question since 
for the life of me, I cannot remember what is and is not in 
154.

    But now that I am looking at Section 2264(a)(A), I think 
the answer is that it does have a cause standard, but it does 
not even--if you meet the cause standard, you do not even have 
to prove any prejudice. Now it is a strict cause standard, but 
it does not have prejudice requirement, much less the, quote, 
``actual innocence or no involvement standard.'' I could be 
wrong, but that is the way I read it.

    Senator Kyl. I would want to take that further.

    Mr. Chairman, I just make this point, since Mr. Waxman 
concluded his earlier answer with something which is pregnant 
with dispute. The exact reason why it makes sense to have the 
Department of Justice determine the compliance with the 
statute, to be reviewed by a Federal court, is because 
otherwise you have an ad hoc determination and precisely the 
issues raised by the Spears case, where the court says, gee, in 
this case it appears that you had a good set of counsel and so 
on, but we are still not going to apply it, and the other 
judges say, and we are not bound by this in any future case. 
You never have resolution. No one can rely upon the system 
either qualifying or not. You always know you are going to have 
a case made at the end of the day before a judge that the 
provisions cannot apply because the procedures were 
inadequately established, or the program was inadequately 
established, or operated.

    It seems to me that having a determination made and then 
the court reviewing it in each case, is a better way to do it 
than having the court establish in each case whether you 
qualify preliminarily to even be able to argue that you can use 
these 154 expedited review standards.

    That is my answer to your point.

    Thank you, Mr. Chairman.

    Chairman Specter. Mr. Waxman, my round of questioning has 
finally come, and I will begin with you, but with first an 
observation that it is not--and I know you are not representing 
to be an expert in Congressional practices, but it is not 
unusual to have something in a Conference report which is not 
part of the PATRIOT Act. We have quite a number of provisions 
which will be added to it.

    With respect to this issue about the appropriateness of the 
Attorney General's certification, the Innocence Protection Act 
has an Attorney General certification. Would there be any 
reason to approve that and not a certification here?

    Mr. Waxman. I am going to have to admit that I am not fully 
up to speed on the Innocence Protection Act and how the 
certification works. I was asked to give my opinion about some 
legislation that I only received after I was already sitting at 
this table and--

    Chairman Specter. That is OK. You are not expected to be an 
encyclopedia, but there are quite a few provisions, and I have 
just consulted with my Chief Counsel, Mike O'Neill, who is a 
Professor, and the thoughts come to mind about preclearance on 
the Voting Rights Act, which is an adjudicatory function. There 
are some provisions under Environmental Protection where the 
Department of Justice performs adjudicatory functions. There 
are preclearances on mergers, antitrust, where there is an 
adjudicatory function. And I believe that the Innocence 
Protection Act is a pretty good example. I am trying to 
determine whether there is even a court review of that. But 
that is a legislative matter for us in any event.

    With respect to the issue of having the Attorney General 
make the determination, we are trying to move ahead on a 
question which is very problemsome we have not been able to 
answer. And I do think that Senator Kyl raises a very good 
point about what is happening to Arizona and could it be 
applicable to other States on an incentive to provide adequate 
counsel. The way the situation is now, it appears that other 
States are discouraged from doing so. But the provision which 
we are considering in the Conference report, nothing is final. 
It was not slipped in. It was something that I discussed 
yesterday with Senator Leahy, and I reminded him of that a few 
moments ago before he left. So that these disclosures are made, 
and you do not read about it after the fact. But it does 
require the statutory standards to be maintained, and it does 
have provisions for decertification.

    Judge McKibben, thank you very much for being here, for 
your participation. Notwithstanding the objections which you 
have raised to the pending proposals, do you think that the 
habeas corpus procedures ought to be modified by any new 
Federal statute?

    Judge McKibben. Well, I think that the Committee should 
move slowly in this area until there has been an opportunity to 
determine if there are in fact any type of systemic problems on 
delay. As I understand it, the principal reason behind this 
legislation is that there have been indications that in some 
districts, cases may have been delayed in the disposition 
process. And I think until the study is undertaken to examine 
that and review those cases, and see if in fact there is any 
type of systemic problem--

    Chairman Specter. Do you know of no systemic problem 
yourself?

    Judge McKibben. I am not aware of cases that have been 
unduly delayed between the time that they come into Federal 
court and when they go back to State court. There may well be 
some delays in State court. That is inherent in the process 
that we have in federalism and comity. I know Seth Waxman 
indicated that there are occasions where the court asks the 
prosecutor if they are willing to waive unexhausted claim 
issues and not have them go back to the State court, have them 
resolved in Federal court, which certainly would expedite the 
process. But as long as we consider comity and federalism to be 
an important doctrine, which we certainly do, that is going to 
be inherent in the process. And, changing the statutory scheme 
and the standards for being able to secure review, I think is 
going to complicate the process. We are going to be litigating 
that for the next 8 or 10 years.

    Chairman Specter. Mr. Waxman, do you know of any provision 
that ought to be modified, if there is any useful addition by 
Federal legislation on this issue at this time?

    Mr. Waxman. I am not. One way, as I indicated at the 
outset, I think that it may well be that there are enduring 
problems either that have persisted notwithstanding the 
enactment of AEDPA, and/or problems that have been created, a 
level of unfairness that has been created by AEDPA, all of 
which would be appropriate for legislation, but I do again urge 
the Committee and the Congress to reach out to the AO and the 
Conference of State Chief Judges, and the Federal Judicial 
Center. Let's get the data and some analyses and identify what 
are the problems that have either on a systemic basis persisted 
and why, and what problems has AEDPA perhaps--

    Chairman Specter. I am just asking if you know of any, and 
the answer is no.

    Mr. Waxman. No.

    Chairman Specter. Senator Feingold, I understand you want 
another round, which is certainly a more modest request than 
another hearing.

    [Laughter.]

    Senator Feingold. Mr. Chairman, you were kind to allow this 
hearing, and I am not even going to use a whole round. I just 
want to ask Judge McKibben a couple of questions.

    Chairman Specter. Do not forget the hearing before this 
too.

    Senator Feingold. I was happy about that hearing too.

    [Laughter.]

    Senator Feingold. I will try to be brief.

    Chairman Specter. You are recognized, Senator Feingold, for 
however long you like up to 5 minutes.

    [Laughter.]

    Senator Feingold. That is what I thought. Thank you, Mr. 
Chairman.

    Judge, the vast majority of Federal habeas cases are in 
non-capital cases, is that not right?

    Judge McKibben. That is correct, about 18,000 a year.

    Senator Feingold. And individuals who have been sentenced 
to a prison term or even life imprisonment really have no 
incentive to delay their legal proceedings, do they?

    Judge McKibben. Not to my knowledge. The sooner they can 
have the matter disposed of, particularly if it is favorable, 
the sooner they would be released if they are successful.

    Senator Feingold. So when we are talking about those kind 
of cases, there is not even any potential for the kind of 
dilatory tactics that some Senators are worried about, is that 
not correct?

    Judge McKibben. The Conference has expressed that in the 
communications I have provided to the Committee. That is 
correct.

    Senator Feingold. Judge, one of the big problems with 
erecting extremely complex procedural barriers in habeas cases, 
as we have talked about, is that many State defendants are 
navigating their State systems with no counsel or with an 
attorney who is overworked, underpaid and has no investigative 
resources. Does the statute here help to address in any way 
situations in which petitioners had no counsel or incompetent 
counsel in State court?

    Judge McKibben. That is one of the concerns the Conference 
has. It seems to me that part of the problem here is ensuring 
that there is competent counsel throughout the State process, 
and that would include post-conviction. If you have competent 
counsel, then it makes it much easier to navigate the post-
conviction review in the Federal courts.

    A great number of the cases that we have, the petitioners 
do not have counsel, and the petitions get filed, and then you 
go through the amendment process where they have to refine it 
and we have to try to understand it. We have a special Habeas 
Unit in our court that works with that because they are able to 
look at those petitions, most of them, many of them 
handwritten, and attempt to discern exactly what it is that is 
being set forth. And then they have an opportunity for 
amendment.

    This bill does not really address that issue, and I think 
that is a core issue that has to be resolved before we will be 
able to expedite these cases in the future, more so than is 
being done now.

    Senator Feingold. I thank you, and I thank all the 
witnesses.

    And again I thank you, Mr. Chairman, for the hearing.

    Chairman Specter. Thank you very much, Senator Feingold.

    Senator Kyl, you had the first word on this bill, and you 
may have the last word.

    Senator Kyl. Thank you, Mr. Chairman. There is so much more 
we could talk about. I have got a whole series of questions 
here. I think probably that we have imposed upon our witnesses 
long enough in this open hearing. But I do think the process of 
working around a table has helped. And if we do not presume too 
much more on the experts' time here, I would hope for that 
opportunity in the future as well.

    We certainly have not rushed this now. I mean it has now 
been almost 6 months, and it is important business to take the 
time and do it right. I just hope that we can get beyond what I 
said in the beginning is undoubtedly a clash of two points of 
view that are difficult to reconcile about the use of habeas 
corpus, and perhaps also come to an agreement that if the 
statistics do reveal significant problems, particularly in the 
capital cases, as the Arizona study--which I will share with 
you--I think does, that armed with that information, we would 
be willing to make some changes statutorily. It is perfectly 
appropriate for us to legislate in this area. I think we all 
agree with that.

    And the notation that you made about the number of Supreme 
Court cases that have just now come to fruition and provided 
guidance is an illustration of the fact that if we get it 
right--it is a big ``if''--but if Congress gets it right in the 
way that it writes legislation, we can express intent and clear 
up issues and provide clear guidance across the board, and in 
many respects more specifically than the courts do it through 
the cases that may or may not come before them with particular 
fact situations they have and the like.

    It is hard to make law in this area through case law. And 
what we are trying to do here is be specific and precise and 
general in our application to everybody, rather than just 
having ad hoc determinations that may or may not have 
precedential effect, and that differ in facts, and therefore 
are of limited value in other situations, and which make it--I 
think Mr. Waxman, you said--one of the more esoteric areas of 
law that has a great deal of unsettled aspects to it. We are 
trying to settle some of those, and that is our intention here.

    So if you grant that the legislature has that potential if 
we do it right, I would hope you would continue to work with us 
to try to help us get it right so that we can provide more 
certainty and at least in States that are really trying hard. I 
mean Arizona spends like $60,000 on the average case, and on 
the difficult cases it is far more than that. I am quite 
familiar with the process. They are really trying hard and have 
been for a number of years. I think it is discouraging when 
other States see that it does not seem to have the intended 
effect in terms of the certification. so that is my plea. I 
again express my gratitude to all of you and the others who 
have helped to work on this, and hope, Mr. Chairman, that we 
can continue to try to work this issue. And thank you again.

    Chairman Specter. Thank you very much, Senator Kyl.

    Thank you, Judge McKibben and Mr. Waxman and Mr. Eisenberg.

    That concludes our hearing.

    [Whereupon, at 11:45 a.m., the Committee was adjourned.]

    [Questions and answers and submissions for the record 
follow.] 

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