[Congressional Record Volume 140, Number 40 (Thursday, April 14, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: April 14, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                               WHITEWATER

  Mr. D'AMATO. Mr. President, tomorrow, April 15, is the deadline for 
millions of American people to pay massive, retroactive tax increases 
that President Clinton pushed through the Congress last year. President 
Clinton raised income taxes, gas taxes, taxes on seniors and small 
businesses. The President sought to tax everything that moves and some 
things that do not.
  On November 21, 1991, Bill Clinton told an audience here in 
Washington:

       For 12 years of this Reagan-Bush era, Republicans have led 
     the S&L crooks and self-serving CEO's to try to build an 
     economy out of paper and perks, instead of people and 
     products. It is the Republican way. Every man for himself, 
     and get it while you can. They stacked the deck in favor of 
     their friends at the top and let everybody else wait for 
     whatever trickles down.

  If you omitted the reference to Republicans, candidate Clinton's own 
words should provide President Clinton with ample evidence of why 
Whitewater has become an issue of importance to the American people and 
why congressional hearings must be held.
  Well, now that the President has raised everyone else's taxes, we 
discover he has not paid all of his own. Worse yet, President Clinton's 
health care plan will be the single-largest tax increase in the history 
of the world.
  It seems like the President never met a tax he did not like, except 
his own.
  Mr. President, I believe I am speaking for millions of hard-working 
American taxpayers when I say we expect our President to pay his full 
and fair share of taxes, and to pay them on time. In yesterday's and 
today's ``Doonesbury'' cartoons, Republican leadership is depicted 
brainstorming about Whitewater.
  Let me refer to yesterday's cartoon, ``Doonesbury.'' GOP leadership 
is brainstorming. It has Congresswoman Davenport:
  ``If I may, Bob, dear?''
  ``The Chair recognizes Congresswoman Davenport.''
  She goes on to say: ``I think we should tread carefully with these 
hearings. If there is, in fact, malfeasance, then by all means, we 
should bring it to light.
  ``But if there is no real scandal at the center of Whitewater, this 
all could backfire. We should ask ourselves, honestly: Why we are doing 
this?''
  And a voice from the back comes: ``Because it's payback time, Baby.''
  The Chair then recognizes Senator D'Amato, who goes on to say: 
``C'mon, everybody, it's payback time.''
  And Senator Davenport says,

       Alphonse, that is exactly the impression we don't want to 
     create. In fact, dear, the little lapses that you and Newt 
     [Gingrich] had on the ethics front are rather a problem for 
     us.

  She goes on to say: ``Lest we appear merely vindictive, it might be 
best if you kept a low profile during the actual hearings.''
  ``Um, [how do I do that?] how low?''
  And she goes on to say, ``Cleveland? Seattle? It's up to you, dear.''
  Mr. President, the only payback I have seen is to watch President 
Clinton pay back his back taxes.
  Mr. President, notwithstanding that, the fact is we do need hearings. 
It has not a whit to do with payback, but rather accountability. The 
same accountability that candidate Clinton called for, before he became 
President Clinton.
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Washington [Mr. Gorton].
  Mr. GORTON. Mr. President, just an hour ago in Olympia, the attorney 
general of the State of Washington, my distinguished successor in that 
office, Christine Gregoire, held a news conference together with 
several prosecuting attorneys from the State, of both political 
parties.
  The news conference was on a topic of overwhelming and urgent and 
immediate importance, the habeas corpus provisions contained in the 
House bill on crime, a bill, and perhaps an amendment, which is being 
discussed at the present time.
  Ms. Gregoire denounced those provisions in the House bill and urged 
the Congress to remove the entire title, all of the provisions in title 
VII of H.R. 4092 relating to habeas corpus.
  In her judgment, and I am quoting:

       The proposal does not constitute meaningful reform and will 
     increase delays in the appellate process in capital cases. We 
     support efforts to strike the habeas provisions from the bill 
     and address the issue outside the context of the omnibus 
     crime legislation.

  The citizens of the State of Washington are particularly sensitive to 
this case of endless appeals. Today marks the 12th anniversary of the 
brutal murders of three women in Clearview, WA, by a man named 
Campbell. Mr. Campbell was sentenced to death some considerable time 
ago, but in the course of the last 7 or 8 years, he and his attorneys 
have filed 44 motions and briefs in State and Federal courts, and 5 
separate appeals in a so-far successful attempt to delay his execution.
  On March 28 we marked the fifth anniversary of a stay of that 
execution, imposed by the Ninth Circuit Court of Appeals. Five years 
and seventeen days have elapsed--that period of time. Campbell appeals 
have cost our State and our Nation's taxpayers an estimated $2.3 
million. I need to emphasize that his murders were perhaps the most 
brutal and callous undertaken in the State of Washington at any time in 
the last several decades.
  Some in the State of Washington in positions of legal authority feel 
that, should the House provisions on habeas corpus become law, that the 
Campbell appeals would start all over again. As a consequence, 
provisions which are advertised as simplifying the appeals structure in 
fact add additional and unnecessary complications to that 
procedure, and focus attention not on the guilt or innocence, not even 
on the trial in the State courts before a jury, but on various 
procedural aspects of those appeals themselves.

  Our attorney general and our prosecuting attorneys have gotten 
together to ask for changes in the habeas corpus rules that apply in 
the Federal courts at the present time: First, to allow one appeal and 
one appeal only through the Federal court system; second, to require 
that such a petition be filed within 6 months of final adjudication in 
State court; third, to ensure that appeals are judged by legal 
standards prevailing at the time of conviction and not new standards 
that invite constant new petitions; and fourth, to impose deadlines on 
Federal courts for their decisions to end the unconscionable delays 
which were involved in the Campbell appeal the first time through in 
the ninth circuit which actually resulted in an order from the Supreme 
Court to the Ninth Circuit Court of Appeals actually to act.
  Mr. President, on the surface of it, any provision which states that 
it is a reform of habeas corpus procedures is deemed to be a plus by 
most of the people of the country when, in fact, we are faced with one 
which makes the process more complicated, which adds to the time and 
the expense and the delay. That proposal should be defeated. It was 
removed by this body in the debate last November over a crime bill. It 
ought to be removed from the House bill as well.
  Mr. HATCH. Will the Senator yield on that particular point?
  Mr. GORTON. I am happy to yield to the Senator from Utah.
  Mr. HATCH. If the Senator will allow me to comment, it is pretty 
apparent the House leadership is doing everything it can to thwart the 
passage of the true crime bill. Frankly, the current House crime bill 
contains a habeas corpus proposal which would result in a de facto 
elimination of the death penalty. Does the Senator agree with me on 
that?
  Mr. GORTON. The Senator regretfully does agree that that is very 
likely to be the net result of that provision if it should become law.
  Mr. HATCH. If I could go on, the leadership in the House appears set 
on keeping this measure in the bill to obtain leverage in the 
conference between the House and the Senate. They know that we are very 
upset about the habeas corpus provision. We kept it out of our bill 
because it is so controversial. The Senate passed a very tough habeas 
corpus provision in the prior Congress. They want to put it in to get 
leverage.
  Now, the Rules Committee over there has reported the rule which, 
aside from dumping most of the Republican initiatives or amendments, 
also stacks the deck against efforts to remove the liberal habeas 
corpus provision. The rule also fails to allow Republicans to offer an 
amendment which will ensure funding for the crime bill--again, a 
leverage position so they can get a softer bill than what we have done 
over here.
  Mr. President, despite the odds, Republicans are prevailing in the 
House on other death penalty amendments. The habeas votes were supposed 
to occur this afternoon over there, but when it looked to the 
leadership that their efforts to pass a liberal habeas corpus --that 
is, to allow more multiple appeals up through the State courts, Federal 
Courts--when it looked like their efforts to pass that type of 
provision might fail, the House leadership promptly decided to adjourn 
until next week. Now they are talking about a ``king of the hill'' 
group of amendments.
  Now, the way that works is--and it is a big game--the way it works is 
they know their habeas corpus provision is going to go down, and so 
they come up with two votes. One is to strike, I believe, the habeas 
corpus provision. But nothing happens even if they vote to strike until 
the second when they move to correct it. What it means is that the 
liberals in the House can vote to strike their habeas corpus provision, 
and then they turn right around and move to correct it and put it right 
back into effect. Nobody else can have another amendment, and the 
Republicans and conservative Democrats who want to straighten this 
incessant number of habeas corpus appeals out, they are just out in the 
crime debate.
  Now, does the Senator agree with me on that particular analysis?
  Mr. GORTON. This Senator certainly does agree with that analysis, and 
the reason this Senator came to the floor was to point out that from 
the point of view of the country as a whole, this is not a partisan 
issue. The attorney general, my successor in the State of Washington, 
is a member of the Democratic Party. Most of the prosecuting attorneys 
who appeared with her today are members of the Democratic Party. And 
they reflect the views of the vast majority of State attorneys general 
across the United States, Republicans and Democrats and nonpartisans 
combined. They want true habeas corpus reform just as the senior 
Senator from Utah wants true habeas corpus reform.
  But just as the senior Senator from Utah feels that doing nothing is 
far preferable to doing the terrible job which was proposed here at one 
point in the Senate in our debate but defeated, so this group of 
attorneys general and prosecuting attorneys wants this provision 
stricken from the House bill and this issue taken up at a later time 
separately when it can be debated on its own merits.
  I am certain that their advice to Members of Congress, my attorney 
general to my members, probably the Senator's attorney general to his 
members, would be, under this set of circumstances, to vote to strike 
the present provisions and not to insert anything in their place, to 
separate this issue out entirely for future debate. And if that is the 
result, then it may very well be that the House will have passed a bill 
which will be constructive in connection with dealing with crime.
  If, in fact, the House passes a bill that includes its present habeas 
corpus provisions or anything remotely similar to them, what is called 
an anticrime bill will, in fact, be a procriminal bill. It will add to 
the time that people like Campbell can delay justice and can add to the 
costs to the people of the United States and frustrate the 
administration of justice.
  Mr. HATCH. If the Senator will yield again, I wish to compliment the 
Senator because the Senator is a former attorney general of his State. 
He understands this situation. It is a very difficult issue to 
understand. A lot of people in both Houses do not understand it, except 
everybody understands that there are now unlimited appeals through both 
systems, the State and the Federal system.
  Just so we all understand, those crafting the House rules have passed 
a rule, or will pass a rule, that contains what is called the ``king of 
the hill'' provision, and by this I mean Republicans will get their 
amendment to strike the liberal habeas corpus provisions of the House 
bill. It is the prevailing view that this effort to strike the liberal 
habeas will pass, but immediately after that vote there will be a vote 
on another liberal Democrat habeas corpus amendment which the ACLU, the 
American Civil Liberties Union, supports. This will allow liberal 
Democrats to vote to strike the original habeas corpus provision but 
ensures the passage of another one of these provisions that is not 
going to do anything to solve the problem.
  So Democrats in the House have been blaming Republicans for delaying 
their crime bill, but when it was apparent that Republicans might win 
on some votes, especially habeas corpus, the leadership folded their 
tents until next Tuesday so that they could put it together in a way 
that they could not lose even though a majority of Members of the House 
would like to have a different habeas corpus provision.
  So we here, as the distinguished Senator from Washington has said, 
avoided the issue. We just kept habeas out of the bill hoping that we 
could work it out separately later. But we know that, if the House is 
intent on keeping their liberal habeas provision that will exacerbate 
the situation in their bill, then, in all honesty, it is going to be 
kept there for leverage during the conference because they know that we 
do not want that liberal provision in the bill that is going to 
exacerbate the problem, not alleviate the problem. I think the 
distinguished Senator from Washington has done us all a favor in 
pointing this out.
  Mr. GORTON. It is exactly for that reason that I came to praise my 
successor, Ms. Gregoire, as the attorney general of Washington, for a 
very cogent presentation of her point of view and that of our 
prosecuting attorneys. I think they are doing the State a great 
service. I hope and I expect that many or most of the members of the 
congressional delegation of my State in both parties will defer to her 
judgment in this connection and see to it that we deal with the crime 
bill and leave this issue to later and not do something which adds to 
the complexity of appeals in the guise of making them more simple.
  Mr. BIDEN. Mr. President, as I say, I just happened to be walking 
through and heard this discussion on habeas corpus.
  We worked for a long, long time, as the Presiding Officer knows, to 
arrive at a compromise on habeas corpus. I met for the better part of 7 
months with the National District Attorneys Association, and the 
National Attorneys General. Both of those associations officially 
signed on to a meticulously detailed and compromised habeas corpus 
provision which we thought we could have agreement on in this body.
  I made a commitment, although I do not agree with the 
characterization of the House provision on habeas corpus as being this 
great get-out-of-jail free card that is being painted. But I do 
acknowledge one important fact; this will complicate matters greatly.
  I would remind my colleagues that we had in the underlying crime 
bill, the so-called Biden bill, to which we added amendments--I had 
included my provision on habeas corpus that had been negotiated with 
the DA's, and negotiated with the attorneys general, the National 
Attorneys General Association. Although over a third of the national 
attorneys general did not ultimately support it, the majority of the 
association did, and an overwhelming majority of the DA's, and the 
National District Attorneys Association supported it.
  It did not go as far as I believe the Derrick amendment; that is, the 
alternative amendment that is going to be offered in the House. But I 
withdrew it. I withdrew it in order to get a crime bill passed. I 
withdrew it in order to make sure that we would also be able to get the 
Brady bill passed. I withdrew it in order for us to be able to attend 
to other matters in the crime bill.
  We reached an agreement here on the floor that as part of that 
extensive compromise that brought about the most significant crime bill 
we have ever passed through this body, that we would, in fact, put it 
aside and not raise it in this calendar year.
  Mr. SPECTER. Will the Senator from Delaware yield for a question?
  Mr. BIDEN. I am delighted to.
  Mr. SPECTER. This Senator knows fully the sequence of events, having 
participated in the discussion on habeas corpus for many years in the 
Judiciary Committee. I am sure the chairman will recall that my 
amendment on habeas corpus was separated out, was taken up as a 
freestanding bill. But in that procedural posture, realistically, it 
lacked the impact of being considered as part of the crime bill.
  I understand fully why the Senator from Delaware did what he did, as 
he has explained, to get the crime bill passed. I thought at the time 
that the habeas was very important and should have been taken up.
  My question to my colleague from Delaware is will we not have in 
conference an opportunity worthy, of necessity--naturally depending on 
what the House of Representatives does--to deal with habeas corpus?
  Mr. BIDEN. The answer is, unfortunately, possibly, yes. I say 
``unfortunately'' because the one thing that the police officers of 
America need urgently is assistance. I am fearful that by having to 
bring up habeas corpus in conference and then on the floor in both 
bodies again through a conference report, based on my 22 years of 
experience in dealing with these crime bills here, and 9 years of 
experience--I see some of the staff on the floor here who are on the 
Republican side who know as much or more about this than I do--we know 
from our vast experience that this is an incredibly difficult topic to 
reach any accommodation on. In fact, in the past it has been used as a 
rationale, and sometimes was a rationale to allow, in effect, what 
amounted to a filibuster to keep any crime legislation from passing.
  That is why I committed on the Senate side--and I would like to ask 
the Record to be held open so I can get my exact quotes because I know 
I will be quoted on this 75 more times if I get it wrong--but my 
recollection is during the debate on the crime bill this Congress last 
year, I indicated that we would--in the unanimous-consent agreement we 
had, other than attending to the separate amendment that the Senator 
from Pennsylvania had--that we would not attempt a return, forgetting 
an agreement on what amendment would be considered--we would not raise 
on either side habeas corpus in this Congress, in this Senate, or at 
least until the crime bill was passed in this Senate. I will go and 
check the Record precisely on what it was.
  The reason for that was not because I disagreed with what the House 
is attempting to do, not because I disagree with the so-called Biden 
compromise reached with the district attorneys and attorneys general. I 
agree. But because I recognize the reality of what will happen to 
something I care much more about, and that is putting 100,000 cops on 
the street, building boot camps, setting up $1 billion for drug courts, 
$9 billion for preventive programs, drug treatment, et cetera, et 
cetera. I care much more about those things than reforming habeas 
corpus at the moment.
  So what I am fearful of, in answer to the question of the Senator, is 
if the House of Representatives passes any--forget ``liberal.'' Let us 
assume they pass, from my perspective, a draconian habeas corpus 
provision that essentially eliminates habeas corpus. Whatever position 
they take on habeas, once habeas is in the conference, the fat is in 
the fire, and the one thing other than guns that has been the thing 
that has kept the crime bills from passing here will have to be 
resolved.
  We have never been able to resolve it thus far. It has always been 
used as an excuse by everyone who has any reason to be against the 
legislation to say they are against it, and we end up stalemated.
  So I sincerely hope that we do not have to consider habeas in the 
context of the crime bill.
  Mr. SPECTER. If the Senator from Delaware will yield for one moment, 
my suggestion is that the habeas issue can be dealt with and can be 
resolved if we can separate out those who are really opposed to capital 
punishment, who use the habeas issue as a vehicle for stalemated 
legislation.
  The issue boils down to two critical points. One was what would 
happen on intervening judicial decisions with the kind of language on 
fundamental rights very close among the participants in the last Senate 
debate; that is, the Senator from Delaware and the Senator from Utah, 
and this Senator; and what would happen on successive petitions?
  We passed the habeas bill in 1989 which had the agreement of Senator 
Hatch and Senator Thurmond, and I think it was very close to what the 
Senator from Delaware had in mind. Of course, we have to deal with the 
semicolons. We cannot deal with the generalizations. But my view has 
always been that the death penalty is so important as a deterrent, and 
that this is one area of Federal law which touches State law directly 
because of the 37 States which have the death penalty, it cannot be 
carried out because of the lengthy appeals on Federal habeas corpus 
that the Senator from Washington has talked about--one case today--and 
that there are about 2,800 people on death row. I think last year the 
number of executions was 38.
  From my own experience as a district attorney, with the view that 
capital punishment is a deterrent, and the need for some imposition and 
fair timeframe, which I have addressed on timeliness, part of which the 
Senator from Delaware has subscribed to in terms of filing it 6 months 
after the process is finished, if we take a close look at getting the 
case into the Federal court early and one comprehensive hearing without 
the rules set up by the Supreme Court on bouncing back and forth--on a 
conservative Supreme Court has not made any real practical sense--it is 
my view that when Joe Biden, Orrin Hatch, Arlen Specter and some of the 
House Members get together to talk about the specifics, we can solve 
it.
  (Mrs. MURRAY assumed the chair.)
  Mr. BIDEN. Madam President, I say to my friend from Pennsylvania, if 
we could get the people who are viewing habeas as a means to curtail 
application of the death penalty out of the debate, and if you can get 
the conservatives looking for full and fair essentially to eliminate 
Federal habeas out of the debate, we can get an agreement.
  Unfortunately, some of my right- and left-wing friends arrive at the 
same point, which is they are intractable, unwilling to acknowledge any 
change.
  The Senator from Pennsylvania and the Senator from Delaware can most 
likely arrive at an agreement, but I doubt whether Senator Gramm from 
Texas and the Senator from Delaware and the Senator from Pennsylvania 
and the Senator from Massachusetts could arrive at an agreement.
  Mr. SPECTER. I will make the Senator an offer he cannot refuse. I 
will deliver from the right wing, this side of the aisle, being a 
centrist myself. I think the Senator from Delaware can deliver the 
other side, which I prefer not to characterize.
  Mr. BIDEN. I would not want to ask the Senator to carry such a heavy 
load, because I am confident my shoulders are not strong enough to 
carry the corresponding load.
  Mr. GORTON. If the Senator will yield, I am delighted that the 
Senator from Delaware and this Senator from Washington have, by 
different roads, reached the same point on this issue.
  Mr. BIDEN. On the procedure, not the issue.
  Mr. GORTON. That is exactly correct. And it is because there have 
been so many differences on substance that the Senator from Delaware 
reached that procedural decision, reluctantly as he may have come to 
it, in any event.
  I began in this discussion by praising the attorney general for the 
State of Washington for asking the congressional delegation to keep the 
House bill clean on this issue--as the Senate has already done--so that 
we may concentrate on a number of areas in connection with crime that 
may be controversial, but at least on which there is a greater degree 
of agreement than there is on this issue.
  Habeas corpus is vitally important. We undercut respect for the law 
by the observation on the part of citizens that these appeals go on 
forever and ever. The way in which we are to solve that question has 
obviously become a matter not only of controversy on its own merits, 
but as the Senator from Pennsylvania said, as a vehicle to get at other 
things often stated in the debate.
  I reiterate my praise for the prosecuting attorneys and the attorney 
general from my State. I hope we will be able to debate habeas corpus, 
but along with them, I trust we will do it independently.
  (Mrs. BOXER assumed the chair.)
  Mr. BIDEN. I thank the Senator from the great Northwest.
  Madam President, I want to point something out here. I worked for 7 
months on a compromise. I got an absolute majority of the attorneys 
general of the United States of America, including a Republican 
attorney general from the State of Pennsylvania, and other Republicans, 
as well, and an overwhelming majority of all of the district attorneys 
in America, to agree to it.
  The Senator from Washington still would not agree to that compromise. 
The conservatives still would not agree to it. So we have a phrase that 
we use in the law--and there are three lawyers on the floor--and the 
phrase is: You come with unclean hands when you make an assertion for 
which you have, in fact, put yourself in the position to have no 
credibility to make because of actions earlier.
  It is one thing to come and praise a single attorney general for 
being opposed to a House provision. It is another thing to imply that 
if we let the attorneys general make the decision, and the DA's, we 
could be for what they were for. In truth, they were for the Biden 
compromise. Your attorney general was in the minority. But the 
attorneys general were for the Biden compromise. The DA's were for the 
Biden compromise. The conservative Republicans were against the Biden 
compromise on the floor. We took it out of the bill because the 
conservative Republicans were not for what the prosecutors of America 
were for.
  They are the facts, nothing but the facts. They used to say in that 
show with Walter Brennan, ``Ain't brag, ma'am, just fact.'' Those are 
the facts.
  I say that not to be critical, but to underscore that the idea that 
we can get together in a conference and arrive at a conclusion is 
bizarre, because even when I came to this floor with a document in 
hand, negotiated in detail for 7 months, with the imprimatur of the 
District Attorneys' Association and the United States Attorneys General 
Association, I could not get my Republican friends to be for that. I 
respect that.
  But it is mildly disingenuous for somebody to suggest the reason to 
be against the House provision is because the district attorneys and 
attorneys general are against it--which they are. I assume that the 
corollary of that would be true--if they were for something, we should 
be for it--because, clearly, the district attorneys are not for 
preventing the death penalty from being imposed.
  So this Senator from the State of Delaware, after 7 months of 
frustration, dealing in good faith with honorable men and women who 
prosecute these offenses at a State level, reached an accommodation 
with them, for which they said: We agree with Biden. And I said: I 
agree with the attorneys. The liberals became very angry with me, and 
the conservatives became very angry with me because we, the prosecutor-
types, agreed.
  So I say: Either say the attorneys general know what they are talking 
about, and the DA's know what they are talking about, and be for it; or 
say that nobody knows what they are talking about except me, whoever 
``me'' happens to be speaking. But this is a perfect illustration of 
why I hope the House does not pass anything on habeas corpus, because 
we will have some of it--I am not characterizing the last two 
arguments. I want the Record to show that I am not speaking of the 
Senator from Washington nor the Senator from Pennsylvania. But we will 
hear on the floor the most humorous and outlandish assertions relative 
to habeas corpus.
  The reason they can make them is because our distinguished fellow 
citizens in the gallery, who are not lawyers, should not, and most 
times do not, know the details of habeas corpus. So I can stand here 
and say: ``Habeas corpus is the root of all evil,'' and people up in 
the gallery would say, ``He may be right. I kind of like the guy,'' or, 
``I do not like him, and he is probably wrong.'' Half of the people I 
ran into out in the street when this was a big issue thought it was the 
name of a convicted felon crouched behind a garbage can in an alley 
waiting to jump on someone.
  Habeas corpus is the cause of our problems. Habeas ``schmabeas.'' 
Most people do not understand it. I know everybody comes to the floor 
and brags about not being a lawyer. Well, ignorance is sometimes bliss. 
I know my friend from the State of Washington is a fine lawyer, a 
better lawyer than the Senator from Delaware. He was a prosecutor, and 
understands it fully. That is not the point I am making.
  The point is, when we get to the debate on the floor and we are 
trying to pass either a $15 billion or $23 billion crime bill that 
could really do something about crime, Congress will spend weeks 
talking about habeas corpus. In the meantime, people will get shot and 
killed. Forget the death row guy.

  There is one thing I want to remind everyone of, and I will stop. 
Anyone filing a habeas corpus petition is not a threat to any American. 
If they are filing a petition, by definition that means they are in 
jail. You do not file a petition, you cannot file a petition unless you 
are behind bars. Those are the facts in terms of impact.
  So anybody who files a petition and says, ``Hey, judge, I've got a 
habeas corpus petition; here read it,'' is already in jail.
  Now you may argue that justice is being delayed in that they are not 
being hung and they are only in jail. OK, fine. I understand that 
argument. Sometimes it is a correct argument. But we are not putting 
anybody in this gallery or anybody on the street, or anybody in this 
Chamber in jeopardy because we have not fixed habeas corpus.
  The only people in jeopardy are the people in the jail who might be 
innocent. And, I might add, an outrageously high percentage of the 
petitions filed in Federal court--and, I might add, in the Federal 
courts out of 735 Federal judges, three-quarters of them were appointed 
by Ronald Reagan. So they are not your left-wing judiciary if really an 
outrageously large percentage of those criminals who pass that paper 
out through the bars and give it to a court and say, ``Check me out, 
habeas corpus.'' The court says: ``Hey, you are right. Your rights were 
violated.''
  Funny thing, but that is a separate issue.
  The issue here is, will anybody understand the habeas corpus debate 
if we bring it up when we have to pass this crime bill? My suggestion 
is people here will understand it.
  Will it get confused in the public? What will the end result of it 
be? That we do not get a crime bill?
  If we do not get a crime bill that means more people will be 
murdered, more people will be mugged, more people will be battered, 
more people will be without protection. Less help will go to the 
community because we will stand here left, right, and center, myself 
included, all of us, and we will either speak intelligently or 
pontificate not so intelligently on habeas corpus.
  I say let us pass the crime bill. Let us put habeas corpus over here. 
Let us go help the communities and come back and fight over habeas 
corpus.
  I will conclude by saying if you cite prosecutors as a reason why to 
be against a particular position that is credible, that is worth doing. 
That carries weight.
  I respectfully suggest if you cite them as evidence for why we should 
be against a position when they are overwhelmingly for a position, you 
should also take that into consideration.
  Mr. GORTON. Madam President, will the Senator yield?
  Mr. BIDEN. Yes.
  Mr. GORTON. It is a great pleasure to listen to the Senator from 
Delaware in his enthusiasm as well as his knowledge of this subject. 
Occasionally he may get slightly more enthusiastic than the facts 
warrant. This Senator began with the discussion of this subject by 
quoting only his own attorney general----
  Mr. BIDEN. I understand.
  Mr. GORTON. And prosecuting attorneys from his own State. When, 
however, the Senator from Delaware says that his compromise was 
endorsed by the National District Attorneys Association and by the 
Association of Attorneys General, he is exaggerating to a certain 
degree.
  The National Association of Attorneys General did not endorse the 
Biden compromise. It might very well have been he got agreement from a 
slight majority of individual attorneys general. He did not get the 
support of the majority of attorneys general from States which impose 
capital punishment.
  When the board of directors of the National District Attorneys 
Association, a relatively small group, endorsed the Biden compromise, 
there was literally an uprising across the country among the members of 
that association. Undoubtedly, the board of directors, having worked 
for 7 months with the very distinguished and forceful Senator from 
Delaware who wished to do something in this area, figured that they 
better endorse the Biden compromise or they might get something worse. 
They did not have their troops with them.
  Mr. BIDEN. Will the Senator yield on that point?
  The PRESIDING OFFICER. The Senator from Delaware controls the time 
and has yielded to the Senator from Washington.
  Mr. BIDEN. Madam President, I want to intervene on that point. I will 
relinquish the floor back to the Senator.
  If the Senator will recall what I said, I knew he was speaking only 
for his attorney general. I pointed out his attorney general was 
against the Biden compromise and I pointed out that a majority of the 
attorneys general were for the compromise and a third to half ended up 
being opposed to the compromise.
  The official endorsement came from the District Attorneys 
Association. The Senator is correct in that the attorneys general board 
of directors endorsed it. He is also correct that a majority of the 
attorneys general of the United States of America beginning and at the 
end endorsed, and he is correct that the Attorneys General Association 
as an association did not officially endorse because at that point 
when, by, I guess it was--how many attorneys general--I think there 
were--do not hold me to this. I will do it for the Record. But I think 
there were 11 attorneys general officially opposed, 11 State district 
attorneys general, and there was as many as 18 that had questions about 
it, if I recall correctly.
  So, my enthusiasm was not overblown or overborne. My enthusiasm, as 
characterized by my friend from Washington, was accurate in that by his 
own admission a clear majority of attorneys general in the United 
States did, in fact, support the compromise, No. 1; and No. 2, the 
organization of district attorneys officially, their organization and 
an overwhelming number of their membership as characterized to me by 
the organization, endorsed the compromise.
  Essentially what there was, was a very articulate, very forceful 
attorney general from the State of California named Dan Humbert who led 
the charge against the compromise and was able to get, I think, at the 
top of the line, 12 attorneys general to agree with him.
  But the point is that I am flattered. I am flattered that I now know 
that a majority of the attorneys general of the United States are 
fearful of me, that they are fearful that if they do not agree with me 
they are going to get something worse.
  I wish my colleagues would take some lead from them and follow their 
genuine concern and fear and drop habeas corpus from our discussion, 
because I want to get cops on the street as quickly as I can get them 
there, and habeas corpus should be delayed for another day.
  Mr. GORTON. Will the Senator yield?
  Mr. BIDEN. I yield the floor.
  Mr. GORTON. Good.
  The PRESIDING OFFICER. The Senator from Washington has the floor now.
  Mr. GORTON. Madam President, maybe it is just that the colleagues 
know the Senator better than the attorneys general do.
  Mr. BIDEN. I suspect that is true.
  Mr. GORTON. In any event, the numbers in this connection are perhaps 
not as important as the substance. Clearly, they are not as important 
as the substance, and the numbers are somewhat murkier than the Senator 
from Delaware would have the membership believe.
  Mr. BIDEN. If the Senator will yield, I frankly resent the constant 
reference to my attempting to mislead the United States Senate.
  Mr. GORTON. I am not making any such statement.
  Mr. BIDEN. Does the Senator question whether the majority of 
attorneys general endorse the compromise? Does he have any doubt about 
that?
  Mr. GORTON. This Senator does not know first hand the answer to that 
question. This Senator accepts----
  Mr. BIDEN. Then the Senator should resist suggesting that I 
exaggerate.
  Mr. GORTON. This Senator accepts the statement that the Senator from 
Delaware made. This Senator did dispute the proposition which the 
Senator from Delaware has withdrawn, that the National Association of 
Attorneys General endorsed his position. That did not happen. They took 
no position on it. This Senator asserts that a majority of the 
attorneys general from the States which impose capital punishment did 
not endorse his position.
  This Senator also points out that the board of directors of the 
National District Attorneys Association did, in fact, agree with the 
position that the Senator from Delaware ultimately reached, but that 
many--I cannot say most and neither, I suspect, can the Senator from 
Delaware, because there are literally hundreds of district attorneys 
throughout the United States--that there was a considerable revolt 
among district attorneys with respect to that matter. And it is the 
belief of this Senator that if the district attorneys of the United 
States and the attorneys general of the United States were asked 
whether or not they support the provision which is before the House of 
Representatives today, it is the view of this Senator that they would 
reject it by a rather substantial majority.
  Mr. BIDEN. Will the Senator yield on that point?
  Mr. GORTON. In that connection, of course, the Senator from Delaware 
and the Senator from Washington have reached the same position.
  Mr. BIDEN. If the Senator will yield, I not only would guess, I know 
that the leadership, Democrat and Republican, of the National Attorneys 
General Association and the District Attorneys Association would be and 
are opposed to either the proposition offered in the House Judiciary 
Committee-passed provision or the anticipated alternative about to be 
offered, I believe, I am not certain of this, by Congressman Derrick.
  But I think, regardless of whether or not anyone accepts either of 
our characterizations of where the prosecutors of America stand on this 
issue, I think this discussion, where we are trying to agree and 
cannot, is illustrative of how difficult it will be to reach a 
compromise where we do not agree and we are trying to reach agreement.
  We cannot even agree when we are trying to agree when it comes to 
habeas corpus. I would suggest it is nearly impossible for us to agree 
in time to pass a crime bill where we have serious substantive 
disagreements.
  I will conclude my comments on this for the day by saying, I happen 
to substantively agree with the approach taken, as I understand it, by 
the Derrick amendment that is going to be proposed in the House. But I 
practically do not agree with this incorporation because it will have 
the effect of torpedoing something I have worked now 5 years to put 
together--5 years--and that is the core of the crime bill we passed out 
of here and that they are about to pass on the floor of the House.
  So I want the record to be clear. There is nothing altruistic in my 
opposition to including habeas corpus. There is nothing that relates to 
substantive concerns I have with the House approach. It relates to the 
ability to put 100,000 cops on the street and $9 billion or $7 billion, 
whether you take the House or Senate bill, of prevention methods and 
efforts on the street to help protect Americans and to help keep 
children at risk out of the drug stream and the crime stream.
  That is my reason for hoping that the House, by whatever method they 
arrive at, chooses not to include a habeas corpus provision.
  Because although I enjoy negotiating with my Republican friends, I 
know that what will happen is I will be spending more nights at 3 
o'clock in the morning with Mr. Manus Cooney, who is not even a 
Senator, but just a brilliant staff person--and he is, by the way, 
first-rate--on the Republican side. Manus and I have spent more time 
with one another having to deal with habeas corpus than we have with 
our families on occasion.
  As much as I like him--and I see him in the back--I do not want to 
spend any time with him this spring, because we basically agree on the 
crime bill. And as one of the lead staff persons, the most 
knowledgeable staff person in this place on these criminal justice 
issues, he can tell you, on behalf of Senator Hatch and on behalf of 
Senator Thurmond before him, he and I as two principals in the past, 
one in the present, we have spent a lot of time trying to resolve this. 
We tried very hard and we do not know how though do it, and we are not 
bad at trying to reach compromises.
  I envy and admire the optimism of my friend from Pennsylvania, 
Senator Specter, who says he has a compromise but he forgets to point 
out to you, not only do the liberals not agree with him, the 
conservatives do not agree with his compromise. Nobody does. Nobody.
  I mean the Senator from Delaware could probably reach an 
accommodation, because I am accommodating fellow and I am his neighbor. 
But nobody really agrees with his compromise.
  That in no way goes to the merits of the compromise. That goes to the 
political reality of the compromise.
  So, you know, as I said, here we have spent probably 40 minutes so 
far, or longer, and the poor Senator from Arkansas is here to get the 
floor on a totally different matter, and the Senator from Washington, 
Senator Murray, is here probably on a different matter. I have been a 
party to and maybe the principal reason we have absorbed almost 40 to 
50 minutes on an issue that is not even before us. Can you imagine, 
Madam President, what will happen when it comes before us?
  So my plea is that the House has the wisdom and the fortitude to 
forgo putting this in the crime bill this time around and we can visit 
it another time when we have a year or so to deal with it.
  I yield the floor for the evening.
  I thank my colleague.
  Mr. GORTON. Madam President, does the Senator from Washington have 
the floor?
  The PRESIDING OFFICER. The Senator from Washington has the floor.
  Mr. BIDEN. I will not seek the floor for the evening.
  Mr. GORTON. I thank the distinguished Senator from Delaware.
  At the ultimate end of this discussion we find ourselves in agreement 
procedurally, though not necessarily with the Derrick amendment in the 
House of Representatives. I am relieved we have exhausted the subject 
and I yield the floor.
  Mr. PRYOR addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.

                          ____________________