[Congressional Record Volume 140, Number 50 (Monday, May 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: May 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
RACIAL JUSTICE ACT
Mr. HATCH. Mr. President, last week, on this floor, I explained in
detail how title IX of the House crime bill--which is mislabeled by
some as the Racial Justice Act--would effectively abolish the death
penalty in my home State of Utah and in every other State in this
country, as well as the Federal level.
Unfortunately, President Clinton, despite his rhetoric in support of
the death penalty, has not yet stated his opposition to this Death
Penalty Abolition Act. Indeed, his administration has publicly stated
that it is neutral on this radical measure.
Even worse, according to a detailed newspaper account, the Clinton
administration in fact lobbied House Democrats to keep title IX in the
House crime bill. In addition, the Clinton administration is reportedly
seeking to hammer out a false compromise under which the death penalty
would ultimately be abolished in two steps rather than one.
Mr. President, let me be clear: The so-called Racial Justice Act has
nothing to do with racial justice and everything to do with abolishing
the death penalty.
In the guise of protecting against race-based discrimination, title
IX would instead impose an unreliable and manipulable statistical quota
on imposition of the death penalty. It would convert every death
penalty case into a massive sideshow of statistical squabbles and quota
quarrels. As prosecutors already recognize, they would ultimately have
no choice but to adopt a death penalty quota that equals zero--in
short, to abolish the death penalty. That is why this Death Penalty
Abolition Act has been strongly opposed by the National Association of
Attorneys General, the National District Attorneys Association, and
other law enforcement and victims groups.
Mr. President, at this time I would like to enter in the Record three
letters that illustrate the strong and bipartisan opposition of
prosecutors to any provision that enables a brutal killer to escape the
death penalty based on manipulated statistical showings from unrelated
cases.
The first letter, from the National Association of Attorneys General,
includes a recent resolution passed by that body that specifically
opposes any version of title IX. Again, let me emphasize that the
resolution from the National Association of Attorneys General was
supported by both Democrats and Republicans.
The second letter that I would like to have made part of the Record
is a letter from Jan Graham, the attorney general from my State
of Utah. In this letter, Ms. Graham, a Democrat, states her opposition
to title IX ``because it would impose an unworkable statistically-based
procedure on the States'' and ``would effectively abolish capital
punishment, weaken law enforcement, and suspend closure for victims of
violent crime.''
Third, I have a unanimous resolution from all 58 elected district
attorneys in the State of California opposing any version of the so-
called Racial Justice Act.
Mr. President, I ask unanimous consent that these three letters be
printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
[See exhibit 1.]
Mr. HATCH. It is bad enough that an administration that purports to
support the death penalty has publicly stated its neutrality on title
IX. It is even worse that the same administration is reportedly working
behind the scenes to salvage what it can of this legislation.
Attorney General Reno, in response to my questions at a hearing last
week, disclosed that the administration may attempt to modify title IX
so that it applies only to cases in the Federal system.
Even as so modified, title IX would not be acceptable. In the first
place, it would result in the abolition of the Federal death penalty at
the very time that the administration is purporting to support
expansion of the Federal death penalty.
It is worth noting that, according to a recent article, Attorney
General Reno has approved seeking the Federal death penalty against
nine defendants, all of whom are black. Now I do not believe for a
second that Attorney General Reno has been acting in a racially
discriminatory manner. But the false compromise that the Clinton
administration is working on would compel this faulty inference as a
matter of law.
Second, a statistical quota system that would apply, for the time
being, only to the Federal Government should give States no more
comfort than the German invasion of Belgium gave the French. Far from
being a stable accommodation, such modification of title IX would
simply set the stage for a later full-scale assault on the death
penalty in the States.
In short, if President Clinton truly supports the death penalty--if
his actions are to match his rhetoric--he must demand that title IX in
its entirety be removed from the crime bill. If he remains silent or
neutral on this issue, or supports phony compromises, it can only mean
that he is prepared to repeal the death penalty for the most heinous
crimes in this country.
A vote for any bill that contains title IX is a vote to abolish the
death penalty. I look forward to working with my colleagues to make
sure that this provision is removed at conference.
Exhibit 1
April 12, 1994.
Hon. Jack Brooks,
Chairman, House Judiciary Committee, House of
Representatives, Washington, DC.
Hon. Hamilton Fish, Jr.,
Ranking Minority, Member, House Judiciary Committee, House of
Representatives, Washington, DC.
Dear Congressmen: We are a bipartisan group of chief law
enforcement officers of our respective Sates who are
responsible for overseeing capital and non-capital habeas
litigation and for enforcing state criminal law in death
penalty and non-death penalty jurisdictions.
We wish to express our views on the need to strike habeas
corpus as part of the House omnibus crime bill, and on some
of the amendments which have been offered. Specifically, we
write in strong support of the Hyde Amendment (to strike the
habeas provisions contained in the crime bill, H.R. 4092,
Title VIII) and strong support for the McCollum Amendment (to
substitute the Equal Justice Act for legislation in Title IX
of H.R. 4092 which provides relief based on mere statistical
showings from unrelated cases). This is consistent with the
recently adopted Resolution of the National Association of
Attorneys General (NAAG), a copy of which is attached.
support the hyde amendment to strike title viii and oppose any other
habeas amendments to title viii (including the derrick amendment)
Several reasons compel our strong support for the Hyde
Amendment to strike the habeas provisions from the omnibus
crime bill:
First, the Hyde Amendment is consistent with a similar
bipartisan amendment, which was offered by Senator Dianne
Feinstein and Senator Orrin Hatch, and which was unanimously
agreed to last year in the Senate.
Second, we believe that the habeas provisions contained in
Title VIII of H.R. 4092 may once again hold up consideration
and enactment of other important crime reform issues. Habeas
corpus reform has proven to be a contentious issue in prior
Congresses and in fact was in large part responsible for the
deadlock on the omnibus crime bill in the last Congress. The
need to address violent crime is too urgent to delay
deliberation on other measures to combat crime. Similarly, we
believe there is a danger that the other provisions of the
crime bill may be viewed as so important that habeas
provisions will be swept into the omnibus package without
sufficient review and analysis of their long term impact and
legal significance, as discussed below.
Third, there are other precedents for severing certain
specific crime reform issues from omnibus crime bills. They
include, for example, the Brady bill (five-day waiting period
for handgun purchases).
We believe stronger reasons support the severance of the
habeas provisions from the crime bill. Such a severance would
allow the provisions of any habeas reform bill to be
considered on their own merits. Habeas corpus, while an
important part of our criminal justice system, is a
specialized and arcane area of the law. Any reforms adopted
by the Congress in this area will have tremendous
ramifications on the operations of the criminal justice
system, law enforcement, and victims of crime, and therefore
warrant independent consideration.
We have previously expressed a commitment to obtaining
meaningful reform of the federal habeas corpus process, along
the lines of the Powell Committee Report. This Report
endorses the so-called ``one bite at the habeas apple''
approach, enabling state prisoners one fair and complete
round of habeas litigation in federal court. We need
effective reforms to curb unnecessary delay and repetitious
litigation which has become all too common under the current
federal habeas corpus process. Such reforms should, however,
be considered in separate legislation.
Fourth, the legislation reported out by the House Judiciary
Committee, and now included in Title VIII of H.R. 4092,
would, according to the recent NAAG Resolution, ``adversely
affect all capital and non-capital habeas litigation in the
States and effectively stop all state capital case
prosecutions and executions under valid state capital
sentencing schemes.'' The legislation would overturn or
modify numerous key U.S. Supreme Court precedents which
promote finality in our criminal justice process. This
includes the Teague doctrine, which is essential for capital
and non-capital cases. Instead of streamlining the process,
this legislation will provide convicted criminals with
more opportunities to challenge their conviction and
sentence than under current law. The legislation also
fails to respect the state trial as the ``main event'' in
our criminal justice process, and is inconsistent with
established comity doctrines respecting the role of state
court proceedings in the enforcement of state criminal
law.
Fifth, the last-minute efforts of some to offer new habeas
amendments to the crime bill on the House floor deprive
members of Congress and the public from a full and fair
opportunity to study and comment on the legislation. In
congressional committee hearings or mark-up concerning
specific bill language, law enforcement and victim rights
groups normally are given a chance to apprise the Congress of
their views concerning the impact of new language or
standards. When amendments are patched together at the last
minute, this opportunity is denied.
These concerns are especially true for habeas corpus
reform. New proposals, which have not been subject to public
review, may also have drastic ramifications on the operations
and costs of our departments and the criminal justice system
and have serious consequences on finality, the enforcement of
state laws, and victims. Any habeas reforms included in the
crime bill would constitute the first major change to the
federal habeas statute since 1966. Because of the tremendous
changes to current law which would result under any last-
minute amendments, we believe Congress should proceed
carefully and deliberately before considering any new habeas
reform proposals.
For example, over the last several years, the U.S. Supreme
Court has rendered many opinions which have clarified the
role of federal court review of state court judgments;
promoted the interest in finality and closure for surviving
victims; and respected the interests of states and the
enforcement of state laws in our federalism system. We fear
that if Congress does not fully and fairly consider the
import of proposed new language, these and other precedents
will be cast aside and more delay and litigation will result.
In addition, concerns have been noted over the impact of new
amendments on the deterrent objective of the death penalty.
All of these consequences should be carefully studied before
Congress considers Amendments offered on the floor of the
House for the first time. We believe the public would best be
served by complete congressional hearings before any new
Amendments are debated in the House.
We understand that a new habeas amendment is also expected
to be offered by Congressman Butler Derrick of South
Carolina. Preliminary review shows that this amendment is
also worse than current law and would overturn numerous key
U.S. Supreme Court cases governing habeas corpus. For these
reasons, we therefore oppose the Derrick Amendment or any
other amendments which may be offered at the last minute to
Title VIII of H.R. 4092. Any habeas reform measure should be
considered in a separate bill, after the public has had a
full and fair opportunity to comment on the proposed
legislation.
In sum, while we strongly support habeas corpus reform, we
believe it should be accomplished in a deliberative, studied
and independent manner. For these reasons, we wholeheartedly
support the Hyde Amendment to strike the habeas provisions
(Title VIII) from H.R. 4092.
Support the Mc Collum Amendment (and Any Other Efforts to Strike Title
IX); Oppose All Other Amendments to Title IX (Including the Edwards or
Washington Amendments)
With regard to Title IX of H.R. 4092, concerning racially
discriminatory capital sentencing, we strongly support the
McCollum Amendment, and any other efforts to strike Title IX
of H.R. 4092, as discussed below. The McCollum Amendment,
which passed the House in the last Congress, would (1) strike
Title IX (which provides relief based on mere statistical
showings from unrelated cases), and (2) substitute the Equal
Justice Act.
Significantly, the McCollum Amendment would apply to all
penalties, not merely capital punishment, and would codify
existing case law protections against racial bias. The Equal
Justice Act expressly prohibits racially discriminatory
policies. The legislation states that any penalty ``shall be
administered . . . without regard to the race or color of the
defendant or the victim'' and prohibits ``any racial quota or
statistical test'' for any penalties. Finally, the Equal
Justice Act provides safeguards during the trial, not after-
the-fact like statistical showings legislation.
As the recent NAAG Resolution noted, NAAG opposes ``any
measure that would allow a capital defendant to make a
statistical showing from unrelated cases as the basis for
appellate or collateral relief.'' Such statistical showings
legislation seriously undermines enforcement of the death
penalty.
In McCleskey v. Kemp, the U.S. Supreme Court rejected a
claim which would allow capital defendants to make a
statistical showing of potential race discrimination from
unrelated cases as a basis for collateral relief. The Court
correctly held that a defendant who contests his capital
sentence on the basis of racial discrimination is required to
prove that the decision makers in his or her own case acted
with a discriminatory purpose.
For these reasons, we strongly oppose title IX of H.R.
4092, or any amendment (including the Edwards and Washington
Amendments) which would overturn McCleskey v. Kemp or provide
appellate or collateral relief based on mere statistical
showings from unrelated cases.
Conclusion
In sum, we strongly urge the U.S. House of Representatives
to: (1) support the Hyde Amendment and oppose all other
amendments which may be offered on Title VIII; and (2)
support the McCollum Amendment and oppose Title IX or any
other amendments which may be offered on Title IX. We oppose
any amendments or legislation which would weaken current law
or provide convicted individuals with greater opportunities
to challenge their conviction or sentence. We remain
available to work with you to accomplish meaningful federal
habeas corpus reform through separate legislation.
Sincerely,
Larry Echohawk, Attorney General of Idaho; Frankie Sue
Del Papa, Attorney General of Nevada; Dan Morales,
Attorney General of Texas; Daniel E. Lungren, Attorney
General of California; Joseph P. Mazurek, Attorney
General of Montana; Robert A. Butterworth, Attorney
General of Florida; Grant Woods, Attorney General of
Arizona; Mark Barnett, Attorney General of South
Dakota; Michael F. Easley, Attorney General of North
Carolina; Bruce Botelho, Attorney General of Alaska;
James S. Gilmore, Attorney General of Virginia; Ernest
D. Preate, Jr., Attorney General of Pennsylvania; Heidi
Heitkamp, Attorney General of North Dakota; Jeff
Amestoy, Attorney General of Vermont; Jimmy Evans,
Attorney General of Alabama; Gale A. Norton, Attorney
General of Colorado; Robert A. Marks, Attorney General
of Hawaii; Deborah T. Portiz, Attorney General of New
Jersey; Joseph B. Meyer, Attorney General of Wyoming;
Jan Graham, Attorney General of Utah; Tom Udall,
Attorney General of New Mexico; Don Stenberg, Attorney
General of Nebraska; Jeffrey B. Pine, Attorney General
of Rhode Island; T. Travis Medlock, Attorney General of
South Carolina; Robert T. Stephan, Attorney General of
Kansas; Pamela Carter, Attorney General of Indiana.
____
National Association of Attorneys General--Resolution Adopted March 21,
1994
Whereas, the National Association of Attorneys General is
an organization composed of the Attorneys General of the 50
states and 6 jurisdictions of the United States;
Whereas, the Attorneys General have been deeply involved in
seeking to influence comprehensive federal legislation in
order to achieve a meaningful and effective impact upon the
national scourge of violent crime;
Whereas, the Congress has attempted several times in the
past three years to pass omnibus anti-crime measures with
provisions essential to combating violent crime, but has been
unsuccessful for various reasons;
Whereas, the U.S. Senate passed an omnibus crime bill on
November 19, 1993, but purposefully did not include any
habeas corpus provisions, and it appears that including such
provisions in the U.S. House bill will unnecessarily
complicate the House's approval of a consensus-oriented bill,
as well as delay the passage of any worthwhile anti-crime
bill;
Whereas, the National Association of Attorneys General has
previously resolved to oppose federal habeas reform
legislation which undermines finality and which promotes
unnecessary delay;
Whereas, the National Association of Attorneys General
strongly supports existing protections against racial
prejudice in individual cases, but opposes any legislation
which provides appellate or collateral relief based on mere
statistical showings from unrelated cases;
Whereas, the U.S. House Judiciary Committee recently
reported out: (1) legislation inconsistent with the
Association's previous resolutions addressing habeas corpus
reform; and (2) a measure that would allow a capital
defendant to make a statistical showing from unrelated cases
as the basis for appellate or collateral relief;
Whereas, such legislation would adversely affect all
capital and non-capital habeas litigation in the States and
effectively stop all state capital case prosecutions and
executions under valid state capital sentencing schemes.
Now, therefore, be it resolved that the National
Association of Attorneys General:
(1) strongly supports all efforts to strike the following
provisions from an omnibus anti-crime bill: (1) any habeas
corpus reform legislation; and (2) any statistical showings
legislation; and
(2) opposes H.R. 4018, or any federal habeas legislation
which undermines finality and promotes unnecessary delay, and
H.R. 4017, or any measure that would allow a capital
defendant to make a statistical showing from unrelated cases
as the basis or appellate or collateral relief; and
(3) authorizes its Executive Director and General Counsel
to transmit this resolution to the Administration and Members
of Congress.
____
Office of the Attorney General,
State of Utah,
April 11, 1994.
Re Habeas Corpus/Sentencing Legislation.
Representative James Hansen,
Rayburn Building, Washington, DC.
Representative William H. Orton,
South Langworth Office, Washington, DC.
Representative Karen Shepherd,
House of Representatives, Washington, DC.
Dear Representatives Hansen, Orton, and Shepherd: I am
writing this letter to advise you of my position relating the
Titles VIII and IX and H.R. 4092, the omnibus crime bill. My
comments are based not only on my office's analysis of the
issue but also my understanding of the position of the Utah
law enforcement community as a whole. I have had an
opportunity to talk with many of the top law enforcement
individuals in the State of Utah and I think we all agree on
the following analysis:
H.R. 4092, Title VIII (concerning federal habeas corpus): I
oppose this title because, rather than curtaining habeas
litigation, it would multiply postconviction litigation,
overturn significant and very helpful U.S. Supreme Court
precedent, and further undermine the finality of state
criminal convictions.
I support the Hyde Amendment, which would excise the
controversial habeas provisions from the present crime bill
and allow them to be considered separately on their own
merits.
H.R. 4092, Title IX (concerning race in capital
sentencing): I oppose this title (the so-called ``Racial
Justice Act'') because it would impose an unworkable
statistically-based procedure on the states and in Utah's
case create a system that would be unworkable.
I support the McCollum Amendment (the ``Equal Justice
Act'') because it would prohibit racial discrimination in all
sentencing without imposing unworkable statistical models.
The Utah law enforcement community believes that Title VIII
and IX of H.R. 4092 would effectively abolish capital
punishment, weaken law enforcement, and suspend closure for
victims of violent crime. The provisions would also impose
significant new financial burdens on the State of Utah. I
urge you to oppose these provisions.
Very truly yours,
Jan Graham,
Attorney General.
____
California District
Attorneys Association,
Sacramento, CA, April 29, 1994.
Re opposition to the Racial Justice Act.
Mark Krotoski,
Special Assistant Attorney General, Sacramento, CA.
Dear Mr. Krotoski: I am enclosing a copy of the California
District Attorneys Association's unanimous resolution
opposing the Racial Justice Act.
All 58 Elected District Attorneys in the State of
California believe that adoption of the Racial Justice Act
will effectively destroy the death penalty. We also oppose a
Racial Justice Act which would be limited to federal capital
cases, since it would be easy to extend the statute's
application to the States, in the next crime bill.
We urge you to support an effort to strike this measure
from the Federal Crime Bill.
Very truly yours,
Gregory D. Totten,
Executive Director.
____
California District Attorneys Association--Resolution Adopted April 29,
1994
Whereas, the California District Attorneys Association is
an organization composed of the elected District Attorneys of
California's fifty-eight counties and 3,000 deputy district
attorneys and city prosecutors;
Whereas, on April 21, 1994, the U.S. House of
Representatives adopted the omnibus crime bill, H.R. 4092,
which included in Title IX legislation, referred to, and
known as, the Racial Justice Act (or the Racially
Discriminatory Capital Sentencing Act);
Whereas, on April 20, 1994, the U.S. House of
Representatives narrowly defeated the McCollum Amendment to
strike the Racial Justice Act from the House crime bill and
substitute in its place the Equal Justice Act. [The vote was
an effective 212 to 212 tie, after the votes of the five
Delegate members were excluded under recent House Rules.];
Whereas, the Racial Justice Act would, first, permit a
capital case defendant to make a statistical showing that
death sentences are being imposed or administered in a
disproportionate manner upon (1) persons of one race or (2)
as punishment for capital offenses against persons of one
race, and, second, require the prosecutor to rebut this
statistical showing ``by a preponderance of the evidence'';
Whereas, in the 102d Congress, on June 20, 1991, the U.S.
Senate voted to strike a similar measure entitled the Racial
Justice Act, out of the omnibus crime measure by a bipartisan
vote of 55 to 41 (this was the third successive Congress in
which the U.S. Senate rejected the Racial Justice Act), and
on October 22, 1991, the U.S. House of Representatives voted
to strike a similar measure by a bipartisan vote of 223 to
191;
Whereas, the U.S. Supreme Court rejected a discrimination
claim founded solely upon statistics, in McClesky v. Kemp,
481 U.S. 279 (1987).
Now, therefore, be it resolved that in light of the urgency
and importance of this matter, all 58 California district
attorneys, having been polled, unanimously.
(1) oppose any version of the Racial Justice Act, for the
following reasons:
(a) the Racial Justice Act would result in the effective
abolition of capital punishment.
This would result because of the inherent evidentiary
difficulties and inevitable vast expenditures of time and
money in litigation in every post-conviction capital case, to
prove by at least a preponderance of the evidence a negative,
to wit, that race was not the basis for any of the
prosecutor's jury's, or judge's decisions. [The Racial
Justice Act contains a virtually impossible rebuttal burden:
``Unless [the prosecutor or State] can show that the death
penalty was sought in all cases fitting the statutory
criteria for imposition of the death penalty, the government
cannot rely on mere assertions that it did not intend to
discriminate or that the cases in which death was imposed fit
the statutory criteria for imposition of the death penalty.];
(b) moreover, as to adjudicated cases, the retroactive
application of the Racial Justice Act would permit convicted
capital defendants to reopen their cases by presenting
discrimination claims (regardless of whether such claims had
previously been rejected). In California, there are currently
376 individuals on death row. The retroactive provision in
the Racial Justice Act as passed by the House would
potentially affect these cases as well as others around the
nation;
(c) the statistical premise of any version of the Racial
Justice Act is unsound, for several reasons, including:
(i) it disregards the fundamental precept of our criminal
justice system that an individual is tried on the facts of
his or her case, not on the facts or circumstances or
statistics from unrelated cases;
(ii) it overturns the U.S. Supreme Court's rejection of
such a statistical premise, where the Court noted with regard
to the Baldus study: ``Even Professor Baldus does not contend
that his statistics prove that race enters into any capital
sentencing decisions or that race was a factor in McCleskey's
particular case. Statistics at most may show only a
likelihood that a particular factor entered into some
decisions.'' McCleskey v. Kemp, 481 U.S. 279, 308 (1987)
(emphasis in original); and
(iii) its statistical showing fails to establish that the
imposition of capital punishment in a particular case is
predicated on any bias; and
(d) the Racial Justice Act would permit the ``second-
guessing'' of capital case decisions by prosecutors, defense
counsel, judges and juries based upon the information and
statistics required to be maintained under the Act;
(e) the Racial Justice Act eliminates the traditional
deference to state-court findings of fact, 28 U.S.C.
Sec. 2254(d); Summer v. Mata, 449 U.S. 539 (1981), if the
state fails to collect or maintain adequate records required
under the Act, and causes the individual conviction, though
lawfully and justifiably imposed, to be unduly placed in
jeopardy;
(f) the potential cost of compliance on states and local
entities would be exorbitant, as demonstrated by one
California case (In re Earl Jackson) which took three years
to prepare for an evidentiary hearing and cost more than
$1,000,000. The evidentiary hearing was never held, after the
McCleskey v. Kemp ruling was rendered;
(g) the Racial Justice Act encourages a quota system for
capital punishment cases by in effect introducing ``race
consciousness'' into capital case decisions.
(2) opposes any legislation which would undermine or
otherwise modify the holding in McCleskey v. Kemp, 481 U.S.
279 (1987);
(3) calls upon the U.S. House of Representatives and U.S.
Senate to reject any version of the Racial Justice Act as
part of any package of federal habeas corpus reform or any
crime bill;
(4) opposes any legislation, including the omnibus crime
bill to be reported by the conference committee, which
includes any version of the Racial Justice Act. Any
meaningful provisions contained in the crime bill are
completely undermined by inclusion of the Racial Justice Act,
which is antithetical to fundamental notions under our
criminal justice system. If the omnibus crime bill contains
any version of the Racial Justice Act, we recommend it be
voted down until this legislation is removed.
Be it further resolved by the California District Attorneys
Association that its Executive Director shall transmit a copy
of this resolution to the U.S. Senators and Representatives
in the California delegation and to members of the Senate and
House Committees on the Judiciary.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________