[Congressional Record Volume 141, Number 25 (Wednesday, February 8, 1995)]
[House]
[Pages H1400-H1416]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  EFFECTIVE DEATH PENALTY ACT OF 1995

  The SPEAKER pro tempore (Mr. Hobson). Pursuant to the order of the 
House of Tuesday, February 7, 1995, and rule XXIII, the Chair declares 
the House in the Committee of the Whole House on the State of the Union 
for the consideration of the bill, H.R. 729.

                              {time}  1539


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R, 729) to control crime by a more effective death penalty, with Mr. 
Dreier in the chair.
  The Clerk read the title of the bill.

                              {time}  1540

  The CHAIRMAN. Pursuant to the order of the House of Tuesday, February 
7, 1995, the bill is considered as having been read the first time.
  The gentleman from Florida [Mr. McCollum] will be recognized for 30 
minutes and the gentleman from New York [Mr. Schumer] will be 
recognized for 30 minutes.
  The Chair recognizes the gentleman from Florida [Mr. McCollum]
  Mr. McCOLLUM. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, H.R. 729, the Effective Death Penalty Act of 1995, is 
one of the most important pieces of crime legislation that the 104th 
Congress will consider. It offers relief to State law enforcement 
officials, comfort and a chance for healing to crime victims, and 
enhanced credibility for the criminal justice system. And this bill 
even offers something for criminals, if we want to look at it that way.
  By curtailing the seemingly endless appeals of death-row inmates, 
particularly those who have been there for a long period of time, H.R. 
729 sends the clear message to criminals that the criminal justice 
system is not a game. It sends the message that if you do the crime, 
you do the time. It sends the message of swiftness and certainty of 
punishment that has been missing from our criminal justice system for 
some time, and it goes a long way to restoring deterrence to the 
criminal justice system, which is a corner, a pillar of our entire 
criminal justice system, deterrence. Nothing is more important for 
public safety than to reaffirm that message, because far too many of 
today's criminals think that they can beat the system if they are ever 
caught.
  Congress has been considering this reform for several years. Despite 
victories in the House and Senate going back as far as 1984, supporters 
of habeas corpus reform have not been able to overcome the well-
positioned minority of Members who oppose reform. Mr. Chairman, it is 
my strong hope that those days are now finally over.
  It is often said that the public does not understand what is meant by 
the term ``habeas corpus.'' And that may be true to some extent. But 
the public does understand this: that convicted murderers on death row 
regularly make a mockery of the criminal justice system by using every 
trick in the book to delay imposition of their sentences. In many cases 
where the people's elected representatives have passed capital 
punishment laws, executions never occur because of endless appeals and 
lawsuits. People are sick and tired of the legal maneuvers of violent 
criminals. They want accountability.
  H.R. 729 stands for the clear and simple proposition that there must 
be finality and accountability. The voices of victims have been
 heard. When this bill becomes law, no longer will the victims of 
horrible violent crimes wait for a decade or more for justice to be 
served. Victims will no longer experience the revictimization caused by 
endless litigation which continuously stirs up memories of the pain and 
agony caused by the original crime.

  The bill before us today balances the need for finality and 
accountability with a firm regard for due process of law and full 
constitutional protections. Federal and State prisoners will have ample 
opportunity to challenge their conviction and sentence in both direct 
appeals and in collateral attacks.
  The difference, however, would be this. Convicted criminals, 
particularly murderers on death row, will generally get only one 
opportunity to raise their claims in Federal court using habeas corpus 
petitions. Once the first petition is disposed of, further legal 
challenges must be based on newly discovered evidence pertaining to the 
prisoner's actual innocence of the crime.
  The essence of H.R. 729 comes from the recommendations of the Habeas 
Corpus Study Committee, chaired a few years ago by retired Supreme 
Court Justice Lewis Powell. The Powell Committee established the basic 
quid pro quo approach to this bill with regard to death row inmates. If 
States provide legal counsel in State habeas review to indigent 
convicted murderers, even though such provision of counsel is not 
[[Page H1401]] required by the Constitution according to the Supreme 
Court, then the States will receive the benefits of limited and 
expedited habeas corpus procedures when such prisoners bring their 
claims to the Federal courts.
  These procedures could help insure that defendants are given 
competent counsel in postconviction proceedings. If States enact these 
provisions, the time in which a habeas corpus petition must be filed 
following the conclusion of direct appeal of the conviction is reduced 
to 180 days. This portion of the bill would also require that Federal 
courts could not entertain any claims not raised in the prior State 
court proceedings unless certain exemptions apply.
  These optional provisions also certify that executions will be stayed 
while a habeas corpus petition is pending, but limits the granting of 
further stays if the petition is denied by the district court and the 
court of appeals.
  Additionally, this portion of the bill would require Federal district 
courts to decide habeas corpus petitions within 60 days from the date 
of any hearing on the petition, and also requires the courts of appeal 
to decide an appeal from the decision of the district court within 90 
days of the last brief in the case being filed.
  Aside from capital cases, State prisoners will have a 1-year period 
of limitation for filing habeas corpus petitions after they have been 
convicted of a State crime. Federal prisoners would have a similar 2-
year period of limitation for initiating a habeas proceeding when they 
have been convicted of a Federal crime.
  Federal judges would be prevented from granting relief on a habeas 
petition filed by a person convicted in State court unless the person 
exhausts his State remedies first.
  Finally, H.R. 729 modifies existing law to insure that a Federal 
death sentence is imposed in certain cases where the death penalty is 
an appropriate punishment.
  Under current law, the jury in a capital case is given the complete 
discretion to impose the death
 penalty, life imprisonment, or some lesser penalty regardless of the 
severity of the facts found to exist. Under this title of this bill, 
juries would be required to impose a sentence of death in cases where 
they determine that aggravating factors outweigh mitigating factors or 
where at least one aggravating factor exists but no mitigating factor 
exists. If the jury does not find that these conditions exist, they are 
prohibited from imposing the death penalty.

  H.R. 729's habeas corpus reform provisions are supported by nearly 
every major law enforcement organization in the country. These 
protectors of public safety, victims of crime, and the general public 
have waited a long, long time for these reforms.
  I urge in the strongest of terms that my colleagues support this 
bill, that we get it passed and put it into law this year, 1995.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SCHUMER. Mr. Chairman, I yield such time as he may consume to the 
gentleman from Michigan [Mr. Bonior].
  Mr. BONIOR. Mr. Chairman, I thank the gentleman for yielding time to 
me.
  I would address my comments not on the subject necessarily but to the 
Chair and to the distinguished gentleman from Florida both. I would 
hope that they would relay these comments in the good faith that they 
are given to the appropriate Members within their party structure. We 
have had today a series of problems with the Committee on Science. I 
raise this just to alert my friends that we feel on our side of the 
aisle that our committee members have not been treated fairly. Let me 
be very specific.
  The committee is marking up the risk assessment bill. It is a very 
important bill affecting the health and the safety of all Americans. 
And that bill, the draft of that bill was made available last night but 
was not available to our Members until 11:20 today, when they went in 
to meet to do the bill in committee.
  In addition to that, just a few minutes ago, prior to coming here for 
this last vote, they were taking a rollcall vote in the committee on 
this important bill on an important amendment that I think passed only 
by two or three votes, while a vote was going on on the
 floor here in the Committee of the Whole, excuse me, I think we were 
in the full House at that time moving to final passage.

  What occurred was two or three of our Members missed that vote 
because they were here. The bells had gone off.
  I am requesting in a civil way this afternoon that that type of 
behavior cease and that our Members be given the courtesy to 
participate and to vote and to express themselves in a legitimate, 
fair, and open manner in that committee and that we be given notice on 
the bills that are pending before that committee while the committee is 
considering it, not after the bills have been brought up.
  I thank the Chairman for his indulgence, and I would hope those 
messages would get relayed to the proper people, the gentleman from 
Pennsylvania [Mr. Walker] and the gentleman's leadership.
  Mr. SCHUMER. Mr. Chairman, I reserve the balance of my time.

                              {time}  1550
  Mr. McCOLLUM. Mr. Chairman, while we may have not have a lot of 
speakers on this our side, we are going to spend a lot of hours 
debating habeas corpus reform. I have no knowledge whatever about the 
leadership comments on the other side of the aisle, about the Committee 
on Science today, but I would like to bring us back, so we do not close 
on the topic of something that happened in another committee, to the 
fact that what we are going to consider is a provision that should have 
been offered in the last Congress, but we were not permitted to do so 
by the other side when they were in the majority.
  That is a provision that will ultimately end the seemingly endless 
appeals of death row inmates and get on with the carrying out of their 
sentences. It is something the public has wanted for a long, long time.
  We should be excited about the fact that it is here today, that we 
have a chance to finally vote on this and get it reformed, and we are 
going to have a series of important amendments to consider.
  I urge my colleagues to listen attentively to these amendments, but 
during the course of the several hours of debate on them, in the end we 
need to vote for this bill, get it on to the Senate, the other body, 
and let us get in this calendar year finally, after all these years, 
relief for the States, relief for the public, relief for the victims, 
and end the seemingly endless appeals of death row inmates. That is 
what this bill is all about.
  Mr. STOKES. Mr. Chairman, I rise in strong opposition to the 
Effective Death Penalty Act of 1995. Let me state from the beginning 
that I have consistently, throughout my career, believed in and fought 
for the protection all Americans rights under habeas corpus. As Chief 
Justice Salmon P. Chase described it in ex parte Yerger U.S. (1868), 
habeas corpus is ``The most important human right in the Constitution'' 
and ``The best and only sufficient defense of personal freedom''. 
Therefore, I cannot support this measure before us today because the 
very belief upon which our judicial system was created--the protection 
of an individual's fundamental constitutional rights balanced with 
society's right to be free from harm--is at risk if H.R. 729 becomes 
law. I cannot and will not support the anti-human rights and anti-
Constitution provisions of H.R. 729.
  It is my belief that our judicial system's major focus should be to 
protect its citizen's fundamental constitutional rights. As a nation, 
we cannot afford to compromise the cherished habeas corpus protections 
guaranteed each of us in the U.S. Constitution. Rooted in the Magna 
Carta (1215), the writ of habeas corpus is as Justice Brennan pointed 
out in Fay versus NOIA (1963).

     * * * Inextricably intertwined with the growth of fundamental 
     rights of personal liberty * * * its root principle is that 
     in a civilized society, government must always be accountable 
     to the judiciary for a man's imprisonment: if the 
     imprisonment cannot be shown to conform with the fundamental 
     requirements of law, the individual is entitled to his 
     immediate release.''

  Mr. Chairman, the arbitrary 1-year limitation on the filing of 
general Federal habeas corpus appeals after all State remedies have 
been exhausted entirely fails to address the true cause of any delay in 
the capital system. The lack of competent counsel at the trial level 
and on direct appeal constitutes the primary basis for the delay of 
many appeals. Provision of competent counsel at the trial and 
appellate 
[[Page H1402]] stages of capital litigation would eliminate the need 
for many of the habeas appeals currently in our court system. Despite 
the fact that this is the case, H.R. 729 merely offers counsel for 
State postconviction proceedings, and only to capitally sentenced 
petitioners in States that happen to select the counsel plan of this 
law. Even if counsel is provided at this late date, no time savings 
advantage will be achieved. This counsel plan is too little too late.
  It is no secret that I am opposed to the death penalty. H.R. 729, 
among other things, would greatly expand the reach of the Federal death 
penalty, and fails to include any provisions to end the repugnant 
practice of the disproportionate application of the death penalty on 
minorities. In fact, the bill specifically makes it easier to impose 
the Federal death penalty by reducing the discretion of a Federal jury 
in deciding whether to recommend the death penalty. While I agree that 
strong measures must be taken to curb the crime epidemic, I do not 
believe that any actions should be taken to the detriment of an 
individual's basic rights and constitutional liberties.
  When closely examined, the sentencing history of the death penalty 
has generally been arbitrary, inconsistent, and racially biased. It is 
my belief that the Federal death penalty is overly harsh, particularly 
because it fails to address the economic and social basis of crime in 
our most
 troubled communities. The fact is that there has always been a racial 
double standard in the imposition of capital punishment in the Untied 
States. Even after the black codes of the 1860's were abolished, blacks 
were more severely punished than whites for the same offenses in our 
penal system. By the time the U.S. Supreme Court deemed the existing 
process for imposing the ultimate penalty unconstitutional in 1972, 
more than half of the persons condemned or executed were African-
American--even though they were never more than 15 percent of the 
population. The advances in statistical analysis of the last 20 years 
have allowed numerous experts to test the raw data with disturbingly 
consistent results.

  Mr. Chairman, in 1990, after 29 studies from various jurisdictions 
were reviewed, the General Accounting Office confirmed that there is a 
consistent pattern of disparity in the imposition of the death penalty 
in the United States and that race is often a crucial factor that 
determines the outcome. Since the resumption of executions in 1977, of 
the 236 persons who have been executed, 200 persons, or an alarming 85 
percent, were executed for the murder of white victims. In fact, 
statistics show that blacks convicted of killing whites are 63 times 
more likely to be executed than whites who kill blacks.
  In 1991, the U.S. Justice Department's Bureau of Justice Statistics 
reported that African-Americans accounted for 40 percent of prisoners 
serving death penalty sentences. In my home State of Ohio, of the 127 
people on death row, 62--nearly 50 percent--are African-Americans. 
These statistics reflect how the African-American community is 
disproportionately affected by the death penalty. Furthermore, in a 
nation where the No. 1 leading cause of death for young African-
American males is homicide, further disproportionate application of the 
death penalty will not resolve the epidemic of violence in our Nation.
  Regardless of whether this double standard is intentional or not, the 
result clearly establishes that there continues to be an impermissible 
use of race as a key factor in determining imposition of the death 
penalty. Because of the disproportionate number of minorities serving 
death sentences, it is of great concern to me that H.R. 729's death 
penalty provisions force juries to render death sentences where they 
might not have without H.R. 729.
  Mr. Chairman, it is my belief that we cannot afford to compromise our 
fundamental rights in exchange for excessive discriminatory tactics. We 
all have an obligation to uphold the Constitution and protect the 
rights of all Americans to be free from unjustified imprisonment. I 
urge my colleagues to uphold our fundamental rights, protect the 
American people, and vote down this unconscionable invasion upon one of 
our most important guarantees.
  Mr. YOUNG of Florida. Mr. Chairman, I rise today in support of H.R. 
729, the Effective Death Penalty Act. This legislation represents title 
I of the Taking Back Our Streets Act, 1 of the 10 points of the 
Republican Contract With America, and is the third of the six bills we 
will consider which compose this important crime legislation.
  Today's legislation changes the laws affecting the death penalty in 
an effort to create consistent and fair procedures for its application, 
and to streamline the current appeals process. The habeas corpus writ, 
originally designed as a remedy for imprisonment without trial, has 
become a tool of Federal and State defendants who have been convicted 
and have exhausted all direct appeals. Most of the petitions are 
totally lacking in merit, clog the Federal district court dockets, and 
allow prisoners on death row to almost indefinitely delay their 
punishment. The bill before us today will help put an end to this 
travesty of justice.
  Specifically, H.R. 729 establishes a 1-year limitation period for 
filing a Federal habeas corpus petition contesting a State court 
conviction and a 2-year limitation period for a Federal conviction. 
This measure limits the granting of stays when prisoners have failed to 
file a timely appeal, and imposes a 60- and 90-day deadline for 
district courts and appeals courts respectively to decide an appeal. 
Finally, the bill authorizes funds to help States defend their 
convictions against these appeals and allows juries far greater 
latitude in deciding whether to apply the death penalty.
  Under current law, there are virtually no limits or restrictions on 
when prisoners can file habeas corpus appeals. Thanks to last year's 
so-called crime bill at least two lawyers must be appointed to 
represent the defendant at every stage of the process, and a defendant 
can appeal anytime there is a change in the law or a new Supreme Court 
ruling. In this environment it is not surprising that delays of up to 
14 years are not uncommon. This abuse of the system is the most 
significant factor in States' inability to implement credible death 
penalties.
  Mr. Chairman, the death penalty is now unworkable and must be 
reformed. It is encumbered with nearly endless--and often frivolous--
appeals that delay punishment. The Effective Death Penalty Act upholds 
a simple rule of law--those who kill must be prepared to pay with their 
own life, and I urge its support.
  Mr. MFUME. Mr. Chairman, today we are deliberating whether or not we 
will make it easier for the Government to kill. The bill we have before 
us will limit the ability of State prisoners to challenge the 
constitutionality of their conviction or sentence. It also reduces the 
discretion of a Federal court jury in deciding whether or not to 
recommend the death penalty.
  It has been said that this bill is necessary in order to stop ``the 
pattern of litigation abuse and endless delay that has thwarted the use 
of the state death penalty.'' This, however, is untrue. The number of 
State executions have increased in the past few years. Since the death 
penalty was reinstated in 1976, Texas has executed 90 defendants; 
Florida has executed 33; and Virginia has executed 25. There have been 
over 100 State executions in the past 3 years. There have been seven 
executions so far in 1995. The pace of State executions is not stalled. 
To the contrary, it has dramatically increased.
  History shows that minorities have received a disproportionate share 
of society's harshest punishments, from slavery to lynchings. Since 
1930 nearly 90 percent of those executed for rape were African-
Americans. Currently, about 50 percent of those on the Nation's death 
rows are from minority populations representing 20 percent of the total 
population.
  Three-quarters of those convicted of participating in a drug 
enterprise under the general provisions of Anti-Drug Abuse Act--the 
Drug Kingpin Act--have been white and only about 24 percent of the 
defendants have been black. Of those chosen for death penalty 
prosecutions under this act, 78 percent of the defendants have been 
black and only 11 percent of the defendants have been white.
  Federal prosecutions under the death penalty provisions of the Anti-
Drug Abuse Act of 1988 reveal that 89 percent of the defendants 
selected for capital prosecution have been either African-American or 
Mexican-American. Judging by the death row populations, no other 
jurisdiction comes close to the Federal 90 percent minority prosecution 
rate.
  The proportion of African-Americans admitted to Federal prison for 
all crimes has remained fairly constant between 21 percent and 27 
percent during the 1980's, while whites accounted for approximately 75 
percent of new Federal prisoners.
  The General Accounting Office stated in its report ``Death Penalty 
Sentencing''

       [The] race of the victim was found to influence the 
     likelihood of being charged with capital murder or receiving 
     the death penalty, i.e., those who murdered whites were found 
     more likely to be sentenced to death than those who murdered 
     blacks. Last year, 89% of the death sentences carried out 
     involved white victims, even though 50% of the homicides in 
     this country have black victims. Of the 229 executions that 
     have occurred since the death penalty was reinstated, only 
     one has involved a white defendant for the murder of a black 
     person.

  A large body of evidence shows that innocent people are often 
convicted of crimes, including capital crimes, and that some of them 
have been executed. Since 1970, 48 people have been released from death 
row because they were found to be innocent.
  In February 1994, Justice Harry A. Blackmun stated:

       Twenty years have passed since this court declared that the 
     death penalty must be imposed fairly, and with reasonable 
     consistency or not at all, and, despite the effort of the 
     states and courts to devise legal formulas and procedural 
     rules to meet this daunting 
     [[Page H1403]] challenge, the death penalty remains fraught 
     with arbitrariness, discrimination, caprice and mistake.

  Now, in spite of the studies, in spite of the evidence, and in spite 
of the dramatic increase in executions in recent years, some still want 
to make it easier to impose the death penalty and execute the 
defendant. Is it really justice we are after? Or is it revenge?
  Mr. STENHOLM. Mr. Chairman, I rise in strong support of H.R. 729, the 
Effective Death Penalty Act.
  H.R. 729 establishes new and greatly needed restrictions on the use 
of habeas corpus petitions. This bill would limit the endless appeals 
process and set fair time limits for the filing of habeas appeals. Not 
only does this bill place time limits on filing habeas petitions, but 
also on complete consideration of habeas petitions in death penalty 
cases by the Federal courts.
  Furthermore, this bill would generally limit State prisoners under a 
sentence of death to a single Federal habeas petition. In order to file 
another petition, the prisoner would need to show through clear and 
convincing evidence that, without the constitutional error, the 
defendant would not be found guilty by a reasonable jury. This 
provision will help close the loopholes that have allowed prisoners to 
have their cases reviewed time and time again. The abuse of habeas 
appeals has had a significant effect on the enforcement of the death 
penalty in States, and this bill appropriately addresses these abuses.
  This bill also simplifies the process of imposing the Federal death 
penalty by reducing the discretion of the jury in deciding whether to 
recommend the death penalty. This bill not only eliminates life 
imprisonment without parole as a possible sentence for the specified 
Federal crimes subject to the death penalty, but it requires that 
juries in Federal courts be instructed to recommend a death sentence if 
the aggravating factors outweigh the mitigating factors.
  For far too long now the American taxpayer has footed the bill while 
death row prisoners have filed appeal after meaningless appeal. It is 
time for Congress to provide sound guidelines to the appeals process. 
Those who have been victimized by violent criminals have a right to 
expect timely justice, and this bill will help to ensure that they 
receive nothing less. I strongly urge my colleagues to support H.R. 
729.
  Mr. CONYERS. Mr. Chairman, H.R. 729 is the latest in a series of 
legislative proposals dating back a decade that have attempted to speed 
up the execution of the more than 2,300 people on death row in this 
country. The common thread in these proposals is imposing a time limit 
on filing the habeas petition, typically set at 6 months to 1 year, and 
restricting the number of appeals a prisoner can make, that is, one 
bite at the apple.
  The McCollum bill follows this approach, with a few variations, one 
of which is worth supporting. That is the section providing for 
automatic stays of execution while a habeas petition is pending. This 
is a much needed improvement on the current system where the fate of a 
condemned man hangs in the balance while lawyers scramble at the last 
minute to find a judge who will issue a stay of execution.
  In all other respects, H.R. 729 combines the worst of the habeas 
bills, for instance, by setting a 6-month deadline for habeas petitions 
instead of 1 year, or it fails to make meaningful changes.
  Thoughtful reformers like my former colleague, Representative 
Kastenmeier, the American Bar Association, and the Judicial Conference, 
have suggested that the goals of streamlining the process and 
eliminating uncertainty could be achieved if the States agreed to adopt 
measures that would ensure fairness. That is a good tradeoff, in my 
view.
  The McCollum bill, however, imposes all the deadlines and 
restrictions without any of the fairness. In that sense, it is more of 
a political statement than a serious attempt to reform the process. The 
bill may achieve the goal of speedier executions but the cause of 
justice will not be served. It is an admission of failure to pursue one 
without the other.
  What is missing is any attempt to remedy the most pressing problem at 
the source: poorly represented defendants at trials where almost all 
the constitutional errors that are later reversed on appeal occur. The 
reason for incompetent representation is simple: Many States pay less 
than $1,500 for trials--not enough to defend a drunk driver, let alone 
a capital defendant.
  When you consider that retrials have been ordered by the Federal 
courts in 40 percent of the habeas cases since 1976, the McCollum 
bill's failure to require competent counsel at State trial proceedings 
is a fatal flaw that makes me unable to support this legislation.
  There is another omission in the bill that is even more glaring. It 
goes to the heart of due process and fundamental fairness: An innocent 
man should never be executed.
  The McCollum bill permits habeas claims only in the difficult-to-
imagine situation where there is ``clear and convincing'' evidence of 
innocence and ``no reasonable juror'' would find the petitioner guilty. 
I will be supporting an amendment that will substitute ``preponderance 
of the evidence'' instead of the more restrictive standard.
  This amendment simply states that the Federal courts should always be 
available to hear claims of innocence when based on newly discovered 
evidence. Representative McCollum's standard is far better suited to 
dispose of the claim rather than a standard of whether to hear the 
claims in the first place.
  Mr. PORTMAN. Mr. Chairman, every year nearly 5 million people are 
victims of violent crime. Despite this, only 65 percent of all reported 
murders, 52 percent of reported rape, and 56 percent of reported 
aggravated assault result in the arrest of a suspect. Every year, 
60,000 criminals convicted in a violent crime never go to prison. Given 
these facts, it is easy to understand why crime, especially among young 
offenders, is increasing. Without an effective criminal justice system, 
there is no meaningful deterrent to crime.
  This is especially the case when you look at death penalty 
procedures. The death penalty should be the most extreme deterrent 
against crime. In many countries around the world it has this effect. 
In the United States, however, it has become so mired in convoluted 
proceedings, that it has lost its significance as a credible punishment 
and deterrent to crime. Death row prisoners routinely take advantage of 
an endless appeals process to delay punishment indefinitely. Since 
1991, Federal habeas corpus cases have more than doubled. Thousands of 
frivolous petitions clog the Federal court system, making it virtually 
impossible to complete the process and deliver punishment. It is not 
uncommon for proceedings to take up to 14 years, or more; 14 years from 
the time a person is sentenced for committing a violent crime until the 
time he receives his punishment--hardly a credible deterrent. In 1994, 
district courts fully dismissed only 2 capital habeas corpus petitions, 
out of the hundreds that were filed to delay the process further. This 
undermines our whole system of justice.
  Today we have the opportunity to remedy this serious problem within 
our criminal justice system. The Effective Death Penalty Act will 
streamline the habeas corpus process and reform death penalty 
procedures, reaffirming the commitment of Congress to ensure swift and 
effective punishments for perpetrators of the most egregious crimes. I 
urge my colleagues to support meaningful reform to the habeas corpus 
process and give the American people a reason to put their faith back 
into our criminal justice system.
  The CHAIRMAN. All time for general debate has expired.
  Pursuant to the order of the House of Tuesday, February 7, 1995, the 
committee amendment in the nature of a substitute is considered as an 
original bill for the purpose of amendment and is considered as having 
been read.
  The text of the committee amendment in the nature of a substitute is 
as follows:
                                H.R. 729
       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,
     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Effective 
     Death Penalty Act of 1995''.
       (b) Table of Contents.--The table of contents is as 
     follows:

`Sec. 1. Short title; table of contents.

                     TITLE I--HABEAS CORPUS REFORM

  Subtitle A--Post Conviction Petitions: General Habeas Corpus Reform

Sec. 101. Period of limitation for filing writ of habeas corpus 
              following final judgment of a State court.
Sec. 102. Authority of appellate judges to issue certificates of 
              probable cause for appeal in habeas corpus and Federal 
              collateral relief proceedings.
Sec. 103. Conforming amendment to the rules of appellate procedure.
Sec. 104. Effect of failure to exhaust State remedies.
Sec. 105. Period of limitation for Federal prisoners filing for 
              collateral remedy.

 Subtitle B--Special Procedures for Collateral Proceedings in Capital 
                                 Cases

Sec. 111. Death penalty litigation procedures.

 Subtitle C--Funding For Litigation of Federal Habeas Corpus Petitions 
                            in Capital Cases

Sec. 121. Funding for death penalty prosecutions.

           TITLE II--FEDERAL DEATH PENALTY PROCEDURES REFORM

Sec. 201. Federal death penalty procedures reform.

[[Page H1404]]

                    TITLE I--EFFECTIVE DEATH PENALTY
  Subtitle A--Post Conviction Petitions: General Habeas Corpus Reform

     SEC. 101. PERIOD OF LIMITATION FOR FILING WRIT OF HABEAS 
                   CORPUS FOLLOWING FINAL JUDGMENT OF A STATE 
                   COURT.

       Section 2244 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(d)(1) A one-year period of limitation shall apply to an 
     application for a writ of habeas corpus by a person in 
     custody pursuant to the judgment of a State court. The 
     limitation period shall run from the latest of the following 
     times:
       ``(A) The time at which the judgment became final by the 
     conclusion of direct review or the expiration of the time for 
     seeking such review.
       ``(B) The time at which the impediment to filing an 
     application created by State action in violation of the 
     Constitution or laws of the United States is removed, where 
     the applicant was prevented from filing by such State action.
       ``(C) The time at which the Federal right asserted was 
     initially recognized by the Supreme Court, where the right 
     has been newly recognized by the Court and is retroactively 
     applicable.
       ``(D) The time at which the factual predicate of the claim 
     or claims presented could have been discovered through the 
     exercise of reasonable diligence.
       ``(2) Time that passes during the pendency of a properly 
     filed application for State review with respect to the 
     pertinent judgment or claim shall not be counted toward any 
     period of limitation under this subsection.''.

     SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE CERTIFICATES 
                   OF PROBABLE CAUSE FOR APPEAL IN HABEAS CORPUS 
                   AND FEDERAL COLLATERAL RELIEF PROCEEDINGS.

       Section 2253 of title 28, United States Code, is amended to 
     read as follows:

     ``Sec. 2253. Appeal

       ``(a) In a habeas corpus proceeding or a proceeding under 
     section 2255 of this title before a circuit or district 
     judge, the final order shall be subject to review, on appeal, 
     by the court of appeals for the circuit where the proceeding 
     is had.
       ``(b) There shall be no right of appeal from such an order 
     in a proceeding to test the validity of a warrant to remove, 
     to another district or place for commitment or trial, a 
     person charged with a criminal offense against the United 
     States, or to test the validity of his detention pending 
     removal proceedings.
       ``(c) An appeal may not be taken to the court of appeals 
     from the final order in a habeas corpus proceeding where the 
     detention complained of arises out of process issued by a 
     State court, or from the final order in a proceeding under 
     section 2255 of this title, unless a circuit justice or judge 
     issues a certificate of probable cause. A certificate of 
     probable cause may only issue if the petitioner has made a 
     substantial showing of the denial of a Federal right. The 
     certificate of probable cause must indicate which specific 
     issue or issues satisfy this standard.''.

     SEC. 103. CONFORMING AMENDMENT TO THE RULES OF APPELLATE 
                   PROCEDURE.

       Federal Rule of Appellate Procedure 22 is amended to read 
     as follows:
                               ``RULE 22


              ``habeas corpus and section 2255 proceedings

       ``(a) Application for an Original Writ of Habeas Corpus.--
     An application for a writ of habeas corpus shall be made to 
     the appropriate district court. If application is made to a 
     circuit judge, the application will ordinarily be transferred 
     to the appropriate district court. If an application is made 
     to or transferred to the district court and denied, renewal 
     of the application before a circuit judge is not favored; the 
     proper remedy is by appeal to the court of appeals from the 
     order of the district court denying the writ.
       ``(b) Necessity of Certificate of Probable Cause for 
     Appeal.--In a habeas corpus proceeding in which the detention 
     complained of arises out of process issued by a State court, 
     and in a motion proceeding pursuant to section 2255 of title 
     28, United States Code, an appeal by the applicant or movant 
     may not proceed unless a circuit judge issues a certificate 
     of probable cause. If a request for a certificate of probable 
     cause is addressed to the court of appeals, it shall be 
     deemed addressed to the judges thereof and shall be 
     considered by a circuit judge or judges as the court deems 
     appropriate. If no express request for a certificate is 
     filed, the notice of appeal shall be deemed to constitute a 
     request addressed to the judges of the court of appeals. If 
     an appeal is taken by a State or the Government or its 
     representative, a certificate of probable cause is not 
     required.''.

     SEC. 104. EFFECT OF FAILURE TO EXHAUST STATE REMEDIES.

       Section 2254(b) of title 28, United States Code, is amended 
     to read as follows:
       ``(b) An application for a writ of habeas corpus in behalf 
     of a person in custody pursuant to the judgment of a State 
     court shall not be granted unless it appears that the 
     applicant has exhausted the remedies available in the courts 
     of the State, or that there is either an absence of available 
     State corrective process or the existence of circumstances 
     rendering such process ineffective to protect the rights of 
     the applicant. An application may be denied on the merits 
     notwithstanding the failure of the applicant to exhaust the 
     remedies available in the courts of the State. A State shall 
     not be deemed to have waived the exhaustion requirement, or 
     be estopped from reliance upon the requirement unless through 
     its counsel it waives the requirement expressly.''.

     SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRISONERS FILING 
                   FOR COLLATERAL REMEDY.

       Section 2255 of title 28, United States Code, is amended by 
     striking the second paragraph and the penultimate paragraph 
     thereof, and by adding at the end the following new 
     paragraphs:
       ``A two-year period of limitation shall apply to a motion 
     under this section. The limitation period shall run from the 
     latest of the following times:
       ``(1) The time at which the judgment of conviction becomes 
     final.
       ``(2) The time at which the impediment to making a motion 
     created by governmental action in violation of the 
     Constitution or laws of the United States is removed, where 
     the movant was prevented from making a motion by such 
     governmental action.
       ``(3) The time at which the right asserted was initially 
     recognized by the Supreme Court, where the right has been 
     newly recognized by the Court and is retroactively 
     applicable.
       ``(4) The time at which the factual predicate of the claim 
     or claims presented could have been discovered through the 
     exercise of reasonable diligence.''.
 Subtitle B--Special Procedures for Collateral Proceedings in Capital 
                                 Cases

     SEC. 111. DEATH PENALTY LITIGATION PROCEDURES.

       (a) In General.--Title 28, United States Code, is amended 
     by inserting the following new chapter after chapter 153:

    ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES
``Sec.
``2256. Prisoners in State custody subject to capital sentence; 
              appointment of counsel; requirement of rule of court or 
              statute; procedures for appointment.
``2257. Mandatory stay of execution; duration; limits on stays of 
              execution; successive petitions.
``2258. Filing of habeas corpus petition; time requirements; tolling 
              rules.
``2259. Scope of Federal review; district court adjudications.
``2260. Certificate of probable cause inapplicable.
``2261. Application to State unitary review procedures.
``2262. Limitation periods for determining petitions.
``2263. Rule of construction.
     ``Sec. 2256. Prisoners in State custody subject to capital 
       sentence; appointment of counsel; requirement of rule of 
       court or statute; procedures for appointment

       ``(a) This chapter shall apply to cases arising under 
     section 2254 brought by prisoners in State custody who are 
     subject to a capital sentence. It shall apply only if the 
     provisions of subsections (b) and (c) are satisfied.
       ``(b) This chapter is applicable if a State establishes by 
     rule of its court of last resort or by statute a mechanism 
     for the appointment, compensation and payment of
      reasonable litigation expenses of competent counsel in State 
     postconviction proceedings brought by indigent prisoners 
     whose capital convictions and sentences have been upheld 
     on direct appeal to the court of last resort in the State 
     or have otherwise become final for State law purposes. The 
     rule of court or statute must provide standards of 
     competency for the appointment of such counsel.
       ``(c) Any mechanism for the appointment, compensation and 
     reimbursement of counsel as provided in subsection (b) must 
     offer counsel to all State prisoners under capital sentence 
     and must provide for the entry of an order by a court of 
     record: (1) appointing one or more counsel to represent the 
     prisoner upon a finding that the prisoner is indigent and 
     accepted the offer or is unable competently to decide whether 
     to accept or reject the offer; (2) finding, after a hearing 
     if necessary, that the prisoner rejected the offer of counsel 
     and made the decision with an understanding of its legal 
     consequences; or (3) denying the appointment of counsel upon 
     a finding that the prisoner is not indigent.
       ``(d) No counsel appointed pursuant to subsections (b) and 
     (c) to represent a State prisoner under capital sentence 
     shall have previously represented the prisoner at trial or on 
     direct appeal in the case for which the appointment is made 
     unless the prisoner and counsel expressly request continued 
     representation.
       ``(e) The ineffectiveness or incompetence of counsel during 
     State or Federal collateral postconviction proceedings in a 
     capital case shall not be a ground for relief in a proceeding 
     arising under section 2254 of this chapter. This limitation 
     shall not preclude the appointment of different counsel, on 
     the court's own motion or at the request of the prisoner, at 
     any phase of State or Federal postconviction proceedings on 
     the basis of the ineffectiveness or incompetence of counsel 
     in such proceedings.

     ``Sec. 2257. Mandatory stay of execution; duration; limits on 
       stays of execution; successive petitions

       ``(a) Upon the entry in the appropriate State court of 
     record of an order under section 2256(c), a warrant or order 
     setting an execution date for a State prisoner shall be 
     stayed upon application to any court that would have 
     jurisdiction over any proceedings filed under section 2254. 
     The application must recite that the State has invoked the 
     postconviction review procedures of this chapter and that the 
     scheduled execution is subject to stay.
       ``(b) A stay of execution granted pursuant to subsection 
     (a) shall expire if--
       ``(1) a State prisoner fails to file a habeas corpus 
     petition under section 2254 within the time required in 
     section 2258, or fails to make a timely application for court 
     of appeals review following the denial of such a petition by 
     a district court;
       ``(2) upon completion of district court and court of 
     appeals review under section 2254 the 
     [[Page H1405]] petition for relief is denied and (A) the time 
     for filing a petition for certiorari has expired and no 
     petition has been filed; (B) a timely petition for certiorari 
     was filed and the Supreme Court denied the petition; or (C) a 
     timely petition for certiorari was filed and upon 
     consideration of the case, the Supreme Court disposed of it 
     in a manner that left the capital sentence undisturbed; or
       ``(3) before a court of competent jurisdiction, in the 
     presence of counsel and after having been advised of the 
     consequences of his decision, a State prisoner under capital 
     sentence waives the right to pursue habeas corpus review 
     under section 2254.
       ``(c) If one of the conditions in subsection (b) has 
     occurred, no Federal court thereafter shall have the 
     authority to enter a stay of execution or grant relief in a 
     capital case unless--
       ``(1) the basis for the stay and request for relief is a 
     claim not previously presented in the State or Federal 
     courts;
       ``(2) the failure to raise the claim is (A) the result of 
     State action in violation of the Constitution or laws of the 
     United States; (B) the result of the Supreme Court 
     recognition of a new Federal right that is retroactively 
     applicable; or (C) based on a factual predicate that could 
     not have been discovered through the exercise of reasonable 
     diligence in time to present the claim for State or Federal 
     postconviction review; and
       ``(3) the facts underlying the claim would be sufficient to 
     establish by clear and convincing evidence that but for 
     constitutional error, no reasonable fact finder would have 
     found the petitioner guilty of the underlying offense.
       ``(d) Notwithstanding any other provision of law, no 
     Federal district court or appellate judge shall have the 
     authority to enter a stay of execution, issue injunctive 
     relief, or grant any equitable or other relief in a capital 
     case on any successive habeas petition unless the court first 
     determines the petition or other action does not constitute 
     an abuse of the writ. This determination shall be made only 
     by the district judge or appellate panel who adjudicated
      the merits of the original habeas petition (or to the 
     district judge or appellate panel to which the case may 
     have been subsequently assigned as a result of the 
     unavailability of the original court or judges). In the 
     Federal courts of appeal, a stay may issue pursuant to the 
     terms of this provision only when a majority of the 
     original panel or majority of the active judges determines 
     the petition does not constitute an abuse of the writ.

     ``Sec. 2258. Filing of habeas corpus petition; time 
       requirements; tolling rules

       ``Any petition for habeas corpus relief under section 2254 
     must be filed in the appropriate district court within one 
     hundred and eighty days from the filing in the appropriate 
     State court of record of an order under section 2256(c). The 
     time requirements established by this section shall be 
     tolled--
       ``(1) from the date that a petition for certiorari is filed 
     in the Supreme Court until the date of final disposition of 
     the petition if a State prisoner files the petition to secure 
     review by the Supreme Court of the affirmance of a capital 
     sentence on direct review by the court of last resort of the 
     State or other final State court decision on direct review;
       ``(2) during any period in which a State prisoner under 
     capital sentence has a properly filed request for 
     postconviction review pending before a State court of 
     competent jurisdiction; if all State filing rules are met in 
     a timely manner, this period shall run continuously from the 
     date that the State prisoner initially files for 
     postconviction review until final disposition of the case by 
     the highest court of the State, but the time requirements 
     established by this section are not tolled during the 
     pendency of a petition for certiorari before the Supreme 
     Court except as provided in paragraph (1); and
       ``(3) during an additional period not to exceed sixty days, 
     if (A) a motion for an extension of time is filed in the 
     Federal district court that would have proper jurisdiction 
     over the case upon the filing of a habeas corpus petition 
     under section 2254; and (B) a showing of good cause is made 
     for the failure to file the habeas corpus petition within the 
     time period established by this section.

     ``Sec. 2259. Scope of Federal review; district court 
       adjudications

       ``(a) Whenever a State prisoner under capital sentence 
     files a petition for habeas corpus relief to which this 
     chapter applies, the district court shall only consider a 
     claim or claims that have been raised and decided on the 
     merits in the State courts, unless the failure to raise the 
     claim properly is--
       ``(1) the result of State action in violation of the 
     Constitution or laws of the United States;
       ``(2) the result of the Supreme Court recognition of a new 
     Federal right that is retroactively applicable; or
       ``(3) based on a factual predicate that could not have been 
     discovered through the exercise of reasonable diligence in 
     time to present the claim for State or Federal postconviction 
     review.
       ``(b) Following review subject to the constraints set forth 
     in subsection (a) and section 2254(d) of this title, the 
     court shall rule on the claims properly before it.

     ``Sec. 2260. Certificate of probable cause inapplicable

       ``The requirement of a certificate of probable cause in 
     order to appeal from the district court to the court of 
     appeals does not apply to habeas corpus cases subject to the 
     provisions of this chapter except when a second or successive 
     petition is filed.

     ``Sec. 2261. Application to State unitary review procedure

       ``(a) For purposes of this section, a `unitary review' 
     procedure means a State procedure that authorizes a person 
     under sentence of death to raise, in the course of direct 
     review of the judgment, such claims as could be raised on 
     collateral attack. The provisions of this chapter shall 
     apply, as provided in this section, in relation to a State 
     unitary review procedure if the State establishes by rule of 
     its court of last resort or by statute a mechanism for the 
     appointment, compensation and payment of reasonable 
     litigation expenses of competent counsel in the unitary 
     review proceedings, including expenses relating to the 
     litigation of collateral claims in the proceedings. The rule 
     of court or statute must provide standards of competency for 
     the appointment of such counsel.
       ``(b) A unitary review procedure, to qualify under this 
     section, must include an offer of counsel following trial for 
     the purpose of representation on unitary review, and entry of 
     an order, as provided in section 2256(c), concerning 
     appointment of counsel or waiver or denial of appointment of 
     counsel for that purpose. No counsel appointed to represent 
     the prisoner in the unitary review proceedings shall have 
     previously represented the prisoner at trial in the case for 
     which the appointment is made unless the prisoner and counsel 
     expressly request continued representation.
       ``(c) Sections 2257, 2258, 2259, 2260, and 2262 shall apply 
     in relation to cases involving a sentence of death from any 
     State having a unitary review procedure that qualifies under 
     this section. References to State `post-conviction review' 
     and `direct review' in those sections shall be understood as 
     referring to unitary review under the State procedure. The 
     references in sections 2257(a) and 2258 to `an order under 
     section 2256(c)' shall be understood as referring to the 
     post-trial order under subsection (b) concerning 
     representation in the unitary review proceedings, but if a 
     transcript of the trial proceedings is unavailable at the 
     time of the filing of such an order in the appropriate State 
     court, then the start of the one hundred and eighty day 
     limitation period under section 2258 shall be deferred until 
     a transcript is made available to the prisoner or his 
     counsel.

     ``Sec. 2262. Limitation periods for determining petitions

       ``(a)(1) A Federal district court shall determine such a 
     petition or motion within 60 days of any argument heard on an 
     evidentiary hearing, or where no evidentiary hearing is held, 
     within 60 days of any final argument heard in the case.
       ``(2)(A) The court of appeals shall determine any appeal 
     relating to such a petition or motion within 90 days after 
     the filing of any reply brief or within 90 days after such 
     reply brief would be due. For purposes of this provision, any 
     reply brief shall be due within 14 days of the opposition 
     brief.
       ``(B) The court of appeals shall decide any petition for 
     rehearing and or request by an appropriate judge for 
     rehearing en banc within 20 days of the filing of such a 
     petition or request unless a responsive pleading is required 
     in which case the court of appeals shall decide the 
     application within 20 days of the filing of the responsive 
     pleading. If en banc consideration is granted, the en banc 
     court shall determine the appeal within 90 days of the 
     decision to grant such consideration.
       ``(3) The time limitations contained in paragraphs (1) and 
     (2) may be extended only once for 20 days, upon an express 
     good cause finding by the court that the interests of justice 
     warrant such a one-time extension. The specific grounds for 
     the good cause finding shall be set forth in writing in any 
     extension order of the court.
       ``(b) The time limitations under subsection (a) shall apply 
     to an initial petition or motion, and to any second or 
     successive petition or motion. The same limitations shall 
     also apply to the re-determination of a petition or motion or 
     related appeal following a remand by the court of appeals or 
     the Supreme Court for further proceedings, and in such a case 
     the limitation period shall run from the date of the remand.
       ``(c) The time limitations under this section shall not be 
     construed to entitle a petitioner or movant to a stay of 
     execution, to which the petitioner or movant would otherwise 
     not be entitled, for the purpose of litigating any petition, 
     motion, or appeal.
       ``(d) The failure of a court to meet or comply with the 
     time limitations under this section shall not be a ground for 
     granting relief from a judgment of conviction or sentence. 
     The State or Government may enforce the time limitations 
     under this section by applying to the court of appeals or the 
     Supreme Court for a writ of mandamus.
       ``(e) The Administrative Office of United States Courts 
     shall report annually to Congress on the compliance by the 
     courts with the time limits established in this section.
       ``(f) The adjudication of any petition under section 2254 
     of this title that is subject to this chapter, and the 
     adjudication of any motion under section 2255 of this title 
     by a person under sentence of death, shall be given priority 
     by the district court and by the court of appeals over all 
     noncapital matters.

     ``Sec. 2263. Rule of construction

       ``This chapter shall be construed to promote the 
     expeditious conduct and conclusion of State and Federal court 
     review in capital cases.''.
       (b) Clerical Amendment.--The table of chapters at the 
     beginning of part VI of title 28, United States Code, is 
     amended by inserting after the item relating to chapter 153 
     the following new item:

``154. Special habeas corpus procedures in capital cases....2256''.....
 Subtitle C--Funding for Litigation of Federal Habeas Corpus Petitions 
                            in Capital Cases

     SEC. 121. FUNDING FOR DEATH PENALTY PROSECUTIONS.

       (a) In General.--Part E of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) 
     is amended by adding at the end the following new section:
   [[Page H1406]] ``funding for litigation of federal habeas corpus 
                       petitions in capital cases

       ``Sec. 523. Notwithstanding any other provision of this 
     subpart, the Director shall provide grants to the States, 
     from the funding allocated pursuant to section 511, for the 
     purpose of supporting litigation pertaining to Federal habeas 
     corpus petitions in capital cases. The total funding 
     available for such grants within any fiscal year shall be 
     equal to the funding provided to capital resource centers, 
     pursuant to Federal appropriation, in the same fiscal 
     year.''.
       (b) Clerical Amendment.--The table of contents at the 
     beginning of title I of the Omnibus Crime Control and Safe 
     Streets Act of 1968 is amended by inserting after the item 
     relating to section 522 the following new item:

``Sec. 523. Funding for litigation of Federal habeas corpus petitions 
              in capital cases.''.
           TITLE II--FEDERAL DEATH PENALTY PROCEDURES REFORM

     SEC. 201. FEDERAL DEATH PENALTY PROCEDURES REFORM.

       (a) In General.--Subsection (e) of section 3593 of title 
     18, United States Code, is amended by striking ``shall 
     consider'' and all that follows through the end of such 
     subsection and inserting the following: ``shall then consider 
     whether the aggravating factor or factors found to exist 
     outweigh any mitigating factors. The jury, or if there is no 
     jury, the court shall recommend a sentence of death if it 
     unanimously finds at least one aggravating factor and no 
     mitigating factor or if it finds one or more aggravating 
     factors which outweigh any mitigating factors. In any other 
     case, it shall not recommend a sentence of death. The jury 
     shall be instructed that it must avoid any influence of 
     sympathy, sentiment, passion, prejudice, or other arbitrary 
     factors in its decision, and should make such a 
     recommendation as the information warrants. The jury shall be 
     instructed that its recommendation concerning a sentence of 
     death is to be based on the aggravating factor or factors and 
     any mitigating factors which have been found, but that the 
     final decision concerning the balance of aggravating and 
     mitigating factors is a matter for the jury's judgment.''.
       (b)  Conforming Amendment.--Section 3594 of title 18, 
     United States Code, is amended by striking ``or life 
     imprisonment without possibility of release''.

  The CHAIRMAN. Pursuant to a previous order of the House, the bill 
shall be considered for amendment under the 5-minute rule for a period 
not to exceed 6 hours.
  Are there any amendments to the bill?


                   amendment offered by mr. mccollum

  Mr. McCOLLUM. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. McCollum: Page 20, line 6, strike 
     ``shall'' and insert ``is authorized to.''

  Mr. McCOLLUM. Mr. Chairman, this is purely a technical amendment. We 
had unintentionally done an appropriations and authorization bill, and 
we simply needed to change the language to make sure that, in the 
section of the bill dealing with the funding portions of this with 
respect to the director providing grants to the States for prosecution 
and litigation pertaining to habeas corpus, we do not actually direct 
the funding, but rather, we authorize it. It is a technical amendment.
  Mr. Chairman, I do not have anything else I can say except we need to 
do this. I urge the adoption of the amendment.
  Mr. SCHUMER. Mr. Chairman, I rise in support of the amendment.
  Mr. Chairman, I have seen the gentleman's amendment. It is truly a 
technical amendment. I have no objection to that. I believe our side 
has no objection to it.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Florida [Mr. McCollum].
  The amendment was agreed to.
  The CHAIRMAN. Are there other amendments to the bill?


                    amendment offered by mr. schumer

  Mr. SCHUMER. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Schumer: After subtitle B of title 
     I insert the following:

  Subtitle C--Competent Counsel in Death Penalty Cases in State Court

     SEC. 121. COMPETENT COUNSEL IN STATE COURT.

       (a) In General.--Title 28, United States Code, is amended 
     by inserting after the chapter added by section 111 the 
     following:

            ``CHAPTER 154A--COMPETENT COUNSEL IN STATE COURT
``Sec.
``2263. Competent counsel in State court.
     ``Sec. 2263. Competent counsel in State court

       ``(a) If an action under section 2254 of this title, 
     brought by an applicant under sentence of death, the court 
     determines that--
       ``(1) the relevant State has established or identified a 
     counsel authority which meets the requirements of subsections 
     (b) through (e) of this section, to ensure that indigents in 
     capital cases receive competent counsel and support services 
     at trial in State court and on direct review in the 
     appropriate State appellate courts;
       ``(2) if the applicant in the instant case was eligible for 
     the appointment of counsel and did not waive such an 
     appointment, the counsel authority actually appointed an 
     attorney or attorneys to represent the applicant; and
       ``(3) the counsel so appointed met the qualifications and 
     performance standards established by the counsel authority;

     then the court shall not apply subsection (f) of this section 
     to the claims presented in the application.
       ``(b) The counsel authority may be--
       ``(1) the highest State court having jurisdiction over 
     criminal matters;
       ``(2) a committee appointed by the highest State court 
     having jurisdiction over criminal matters; or
       ``(3) a defender organization.
       ``(c) The counsel authority shall publish a roster of 
     attorneys qualified to be appointed in capital cases, 
     procedures by which attorneys are appointed, and standards 
     governing the qualifications, performance, compensation, and 
     support of counsel; and, upon the request of a State court 
     before which a death penalty is pending, shall appoint 
     counsel to represent the client.
       ``(d) An attorney who is not listed on the roster shall be 
     appointed only on the request of the client concerned and in 
     circumstances in which the attorney requested is able to 
     provide the client with competent legal representation.
       ``(e) Upon receipt of notice from the counsel authorized 
     that an individual entitled to the appointment of counsel 
     under this section has declined to accept such an 
     appointment, the court requesting the appointment shall 
     conduct, or cause to be conducted, a hearing, at which the 
     individual and counsel proposed to be appointed under this 
     section shall be present, to determine the individual's 
     competency to decline the appointment, and whether the 
     individual has knowingly and intelligently declined it.
       ``(f) Except as provided by subsection (a) of this section, 
     in an action under section 2254 of this title, brought by an 
     applicant under sentence of death, the court shall not 
     decline to consider a claim on the ground that it was not 
     previously raised in State court at the time and in the 
     manner prescribed by State law and, for that reason, the 
     State courts refused or would refuse to entertain it.''.
       (b) Clerical Amemdment.--The table of chapters at the 
     beginning of part VI of title 28, United States Code, is 
     amended by inserting after the item relating to the chapter 
     added by section 111 the following new item:

''154A, Competent Counsel in State Court........................2263''.

       Redesignate succeeding subtitles and sections (and any 
     cross references thereto) accordingly.

  Mr. SCHUMER (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
New York?
  There was no objection.
  Mr. SCHUMER. Mr. Chairman, as I have mentioned before, I favor the 
procedural form in the bill before us as it was reported, because I 
take the need for these reforms seriously. I support the death penalty 
in appropriate cases, and I believe that it should be carried out when 
the time comes.
  I believe that the time for this ultimate penalty should not be 
delayed over and over and over again by repeated, redundant, and 
frivolous petitions. Those who bring the petitions are morally opposed 
to capital punishment. I respect that view. However, their view is not 
the prevalent law of the land in most of the Sates, and they should not 
be allowed to use that moral preference to just delay and delay and 
delay.
  Mr. Chairman, I think that the general proposal made by the gentleman 
from Illinois is a fair one. I supported it in committee and intend to 
support it on the floor of the House, at least as it was reported. I do 
not know what amendments will come from the other side.
  However, Mr. Chairman, I also strongly believe that to put people on 
trial for their very lives without giving them good counsel is 
fundamentally unfair and ultimately outrageous. It is not worthy of all 
the good and decent and fair things that make us proud of our country 
and of our unique system of justice. Unfortunately, Mr. Chairman, the 
sad truth is that we do just that in far too many cases.
  The greatest single cause of error in death penalty cases is poor 
counsel at trial. Let me be blunt, Mr. Chairman, about what the words 
``poor counsel'' mean. They mean lawyers who are drunk at trial. They 
mean lawyers who openly speak of their clients in racially 
[[Page H1407]] insulting terms. They mean lawyers who do not have a 
clue about how to stand up to the emotion and community pressure that 
is inevitably generated in every death penalty case. This is a national 
disgrace. Yet, this reform bill before us contains not one word, not 
one single word, to ensure that people put on trial for their lives 
have good lawyers at trial.
  Mr. Chairman, my amendment would correct this important omission. Of 
course, the States are already required by the Constitution to provide 
some kind of counsel to all criminal defendants, but that is not the 
point. The point is whether they provide good, competent lawyers who 
know how to handle death penalty cases and are willing and able to do 
so. Unfortunately, the evidence is that in all too many instances, 
lawyers are appointed who are incompetent, who are overworked, who are 
cronies of trial judges, or, most shameful of all, are actually 
prejudiced against their clients.
  Mr. Chairman, my amendment does not require the States to do 
anything. It is not a mandate of any form. It does not dictate 
standards from Washington. It simply gives every State a simple choice. 
It may choose to set up an independent counsel authority, and that 
authority can be the highest court, a committee appointed by that 
court, or a defender organization.
  There is wide latitude in that part of the choice. It will be up to 
the State authority to set standards of competence for counsel, means 
of appointing counsel, and adequate pay for counsel. If the State 
chooses to set up an authority, then Federal courts will not review 
claims that should have been raised in State courts but were not. To a 
large extent, that is the law that now exists.
  On the other hand, Mr. Chairman, if a State chooses not to set up a 
counsel authority, then Federal courts will consider claims that 
petitioners fail to raise in State court but did not. It is a very 
simple choice. It is saying,

       If you provide adequate counsel, without we, the Federal 
     Government, dictating what adequate counsel is, then you 
     don't have to have full Federal review of your claims. 
     However, if you don't, there ought to be a full Federal 
     review.

  That makes eminent sense to anyone, it seems to me, who is fair-
minded and looks at capital punishment fairly. I say that again as 
somebody who supports capital punishment.
  Let me give the Members a few examples, all from within the last 10 
years of how it happens that these claims are not raised.
  A lawyer in Florida admitted to the trial judge in chambers that, ``I 
am at a loss,'' he told the judge. He said, ``I really don't know what 
to do in this type of proceeding. If I had been through one, I would, 
but I have never handled one except this time.''
  A lawyer in an Alabama trial asked for time between the guilt phase 
and the death penalty phase to read the Alabama death penalty statute. 
A lawyer in Pennsylvania built his client's defense around a statute.
  The CHAIRMAN. The time of the gentleman from new York [Mr. Schumer] 
has expired.
  (By unanimous consent, Mr. Schumer was allowed to proceed for 3 
additional minutes.)
  Mr. SCHUMER. Mr. Chairman, the lawyer from Pennsylvania billed his 
client's defense around a statute that 3 years earlier had been 
declared unconstitutional. These are only a few cases of many, many 
examples that show bad lawyers are appointed to death penalty cases.
  If a person has a bad lawyer, that lawyer obviously will fail to 
raise issues that should be raised when they should be raised. When 
that happens, Mr. Chairman, the only place they can be effectively 
heard is in Federal court on a habeas petition.
  If one has a good lawyer, however, that will raise all the important 
issues, so that they are heard of and disposed of in States courts, 
there is no need to review them in Federal court unless the State court 
has made a mistake in law.
  In other words, it will be done right the first time, and for so many 
of the members on that side of the aisle and on this side of the aisle 
who really feel that there is too much delay and too much appeal, the 
best way to ensure that there is not that delay, not only on a 
statutory but on a constitutional basis, is to make sure in this way 
that there is adequate counsel at trial.

                              {time}  1600

  The amendment will help make sure we do it right the first time. It 
is fair, it is just, it is needed.
  I urge every member, whatever their view is on the ultimate bill, to 
support this very reasonable amendment.
  Mr. McCOLLUM. Mr. Chairman, I rise in opposition to the amendment.
  Mr. Chairman, I rise in opposition to this amendment. The gentleman I 
am sure is sincere about what he wishes to accomplish but quite frankly 
if this amendment is adopted, it is going to destroy the underpinnings 
of this bill to speed up the process of carrying out the death 
sentences in this country.
  Right now the way the bill works is that you have to have as a State 
an agreement to appoint certain counsel as prescribed in the 
legislation, certain attorneys or lawyers, for defendants in State 
habeas proceedings, not at the trial level.
  If you opt to do that, then the time limits come down for taking the 
appeals to the Federal court to 180 days instead of the lengthy time 
that is otherwise in the bill, and you would otherwise be subjected to. 
You gain the limits on successive petitions so that there is no right 
to have these successive petitions, and you engage the timetables in 
this bill that are designed at every stage of the proceeding to reduce 
the amount of time involved in death row cases.
  What the gentleman is suggesting is that essentially this be 
expanded, this right to counsel,
 this provision of opting in, that the States in order to be able to be 
eligible for all of the kinds of changes in the law we are going to 
enact today if we pass this bill must provide counsel under the 
procedures that he has described at the trial level, at the original 
trial level.

  I think everybody needs to understand that under the laws of this 
country, since Gideon versus Wainwright, every accused has the right to 
counsel and the State must provide that counsel, adequate counsel, to 
the accused in any case, be that a death penalty case or otherwise. If 
inadequate counsel is provided and sometimes unfortunately that has 
happened and the gentleman is quite right on that point, then in that 
particular case there is a grievance that is appropriately presented in 
the court system and sometimes that is presented in the habeas corpus 
petitions that we are discussing today in Federal court, and if indeed 
that is upheld that somebody did not have the proper counsel, did not 
have adequate counsel, then he is entitled to have his entire case 
retried, and that certainly would not be something we would 
particularly want to have happen.
  But the truth of the matter is that we do have a procedure for 
adequate counsel and all kinds of protections for the accused that are 
built into that system at the trial level.
  What the gentleman wants to do and what he does by his amendment 
today is to add a series of things that people have to go through, a 
roster has to be formed, a State has to pass a counsel authority in one 
of three or four forms and you have to comply with all of these 
procedures and in the end the expense and the problems and the 
difficulty of going through this in my judgment and many others' who 
have looked at this will mean that most States will choose not to do 
this. They will simply choose to not opt in. Therefore, we will not 
have an effective bill. We will not shorten the time death row inmates 
have for carrying out their sentences that we want to do. The 
underlying bill will indeed fail in its objective if this indeed 
occurs.
  Right now, under current law in most Federal cases, a court cannot 
hear a claim on Federal collateral review that was not first raised in 
State collateral review. This is known as a procedural default.
  The purpose of this rule is to ensure that State courts first have an 
opportunity to correct constitutional errors. It discourages 
sandbagging of claims and encourages the orderly consideration of 
claims by State and Federal courts.
  The Schumer amendment in addition to everything else I have said will 
gut this important rule if States do not adopt his counsel 
requirements. His 
[[Page H1408]] amendment puts States in a no-win situation. Either they 
adopt his expensive requirements of counsel, which I do not think many 
will do, at all stages of State review, for the first time in history 
putting counsel in State capital trials under the thumb of Congress, or 
face more delays in litigation in Federal court.
  Under the Schumer amendment, States can choose between an unfunded 
mandate or greater delay for capital cases.
  Our bill gives States the option of continuing to litigate cases 
under current law or getting stronger rules of finality as the benefit 
for having provided counsel on collateral review, the State habeas 
proceedings that we are talking about rather than the requirements at 
the trial level that the gentleman from New York [Mr. Schumer] is 
talking about.
  We do not punish States that want to impose the death penalty as the 
Schumer amendment would do and the amendment as I view it is insulting 
to victims and to States. It would not result in reform. It would be a 
retrogression, and it should be rejected.
  Mr. FOGLIETTA. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I rise to oppose the Effective Death Penalty Act, and 
in favor of the Schumer amendment.
  Earlier today we pulled the teeth out of the fourth amendment. Now we 
are continuing our assault on the Constitution by making it near to 
impossible for a prisoner sentenced to death to seek justice. The 
Framers said in Article I, section 9 that ``the privilege of the Writ 
of Habeas Corpus shall not be suspended.'' Today, we are not just 
suspending it. We are ripping it to shreds.
  Like so many things in the contract, we resort to coping with genuine 
problems with artificial deadlines, gimmicks and smoke and mirrors--
instead of effective solutions.
  Make no mistake, there are problems with the way the courts are 
required to handle habeas corpus petitions. If you talk to the lawyers 
and the judges who deal with this every day, you will know what the 
problem is. It is that many of the attorneys trying death penalty cases 
are not qualified. I am not saying that we should pay Johnny Cochran or 
Robert Shapiro to represent every accused killer. But, to really solve 
this problem, we have to improve the caliber of attorneys in death 
cases. That way, a prisoner could not come back to the court on 
countless occasions and say that their attorney was ineffective in his 
case.
  That is why the Schumer amendment makes so much sense. This strategy 
would allow us to balance the need to preserve the Constitution, with 
better efficiency in our courts.
  There are so many things that are unfair about the Effective Death 
Penalty Act. The sole incentive for a state to provide counsel at the 
habeas stage is to reduce the statute of limitations. But that is 
grossly unfair to the prisoner. Just think about it.
 How can a new lawyer, however competent, freshly investigate the case, 
develop legal arguments and effectively prepare a petition in just 6 
months. This law begs for the very ineffectiveness of counsel we are 
trying to end.

  Further, the standard for filing a second habeas petition is so tough 
that it renders habeas a constitutional memory. How could a prisoner 
like Walter McMillan seek justice? This is a man who was finally able 
to convince a court that he was the wrong man, but only after four 
habeas petitions. We must allow prisoners to present newly discovered 
evidence in a habeas petition.
  The title of this bill is the Effective Death Penalty Act. But it is 
anything but effective. It is unfair, unjust and unconstitutional.
  A lot of my colleagues on the other side of the aisle have cited 
Jefferson and Madison in these debates. They assure us that they would 
approve of what we are doing. But they do not cite their words.
  The fact is that we know precisely what the Founders have said. They 
said, ``no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized.''
  They said, ``The Privilege of the Writ of Habeas Corpus shall not be 
suspended.''
  This is what they said. This is our Constitution. Let's begin to pay 
attention to it. Let us not tear it up.
  Mr. CHABOT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, the Latin phrase habeas corpus may cause people's eyes 
to glaze over, but the reforms in this bill begin to address what I 
consider to be the biggest problem in the Federal justice system, the 
seemingly unending string of appeals that convicted criminals may file 
to postpone again and again the day of final judgment.
  Mr. Chairman, there is no good reason for the taxpayers in my 
community, Cincinnati, or anywhere else to foot the bill for the John 
Wayne Gacys and other criminals in this world who have taken human 
life, innocent human life so they can play games with our legal system 
from their prison cells for year after year after year.
  There ought to come a point, Mr. Chairman, after a trial by a jury of 
one's peers and after going through the appeals process in the State 
court system and then finally the Federal court system where enough is 
finally enough.
  By moving forward on this bill, the Effective Death Penalty Act, we 
are fulfilling another element of the Contract With America. In doing 
so, we are also attempting to ensure that the death penalty is of more 
than academic interest to jailhouse lawyers.
                              {time}  1610

  If the death penalty is to serve as a real deterrent, we must see 
that it is imposed fairly and surely--and reasonably swiftly. This bill 
is just a start, but it is a good start.
  Our colleagues should understand that the statutory habeas corpus 
provisions we are reforming today are not related to the habeas corpus 
protections contained in the Constitution. The constitutional 
protections apply to remedy lawless incarcerations by the executive 
without court authority; they do not deal with imprisonment ordered by 
State officials pursuant to court order after conviction at trial. But 
confusion over the shared Latin title should not confuse the issue: Our 
Constitution does not mandate, nor does common sense decree, today's 
system of virtually unlimited frivolous Federal appeals.
  Unlike the valuable protections our Constitution provides, today's 
statutory scheme as interpreted by the courts allows endless appeals 
after endless delays. If a decision ever is reached, the convicted 
criminal simply starts the process all over again on some other point. 
In effect, there is now no statute of limitations, and no finality of 
Federal review of State court convictions. The statutory habeas system 
is not rational, it's not just, and it's not followed by any other 
civilized nation.
  As former Supreme Court Justice Lewis Powell said in his review of 
our flawed process: ``I know of no other system of justice structured 
in a way that assures no end to the litigation of a criminal 
conviction.''
  Mr. Chairman, this bill makes a start toward bringing victims of 
crime some closure to their ordeals. Some may not believe that this 
reform goes far enough, but it is reform, and I urge the bill's 
adoption and I urge defeat of the Schumer amendment.
  Mr. CONYERS. Mr. Chairman, Sixty-three years ago, in Powell versus 
Alabama, the case involving the Scottsboro boys, the Supreme Court 
established as a constitutional principle that indigent defendants 
would not be sentenced to death unless they were represented by 
competent counsel.
  That promise remains unfulfilled to this day and it is one of the 
most glaring omissions in the McCollum bill.
  Having competent counsel is so important because failure at the front 
end, that is, the trial stage, leads to the delays and multiple 
petitions at the back end that resulted in retrials being ordered in 40 
percent of all habeas petitions filed since 1976. Without competent 
counsel at trials any reform is meaningless.
  Leaving it to the States to appoint counsel is no solution because 
the current system is a disaster: in Kentucky, attorneys who 
represented a quarter of the State's 26 death row inmates have since 
been suspended, disbarred, or convicted of crimes.
  In Mississippi and Arkansas, compensation for death row attorneys was 
limited by statute to $1,000, though hundreds of hours of work are 
involved.
  [[Page H1409]] In one judicial district in Georgia, capital cases 
were awarded to the lowest bidder.
  South Carolina pays $10 per hour for out-of-court work and $15 for 
in-court work.
  That is the system the McCollum bill would seek to preserve: 
uncompensated, ill-prepared and inexpert counsel for those whose lives 
are hanging in the balance. Surely, we can do better.
  Habeas cases are among the most complex in all litigation. In 
addition to the highest stakes possible--life or death--there is a very 
complex body of constitutional law and unusual procedures that do not 
apply in other criminal cases. There are often two separate trials with 
very different sets of issues. Jury selection standards are different. 
The penalty phase requires in-depth investigation into personal and 
family history.
  The McCollum bill is woefully inadequate in providing counsel and I 
urge my colleagues to support the amendment to require counsel at the 
trial as well as postconviction phase.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from New York [Mr. Schumer].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             recorded vote

  Mr. WATT of North Carolina. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 149, 
noes 282, not voting 3, as follows:

                             [Roll No 104]

                               AYES--149

     Abercrombie
     Ackerman
     Baldacci
     Barcia
     Barrett (WI)
     Becerra
     Beilenson
     Berman
     Bishop
     Bonior
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Cardin
     Clay
     Clayton
     Clyburn
     Coleman
     Collins (IL)
     Conyers
     Costello
     Coyne
     de la Garza
     DeFazio
     DeLauro
     Dellums
     Dicks
     Dingell
     Dixon
     Doggett
     Durbin
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Flake
     Foglietta
     Ford
     Frost
     Furse
     Gejdenson
     Gephardt
     Gibbons
     Gonzalez
     Gordon
     Gutierrez
     Hall (OH)
     Hamilton
     Hastings (FL)
     Hilliard
     Hinchey
     Hoyer
     Jackson-Lee
     Jacobs
     Jefferson
     Johnson, E. B.
     Johnston
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     LaFalce
     Lantos
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lowey
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy
     McDermott
     McHale
     McKinney
     McNulty
     Meehan
     Meek
     Menendez
     Mfume
     Miller (CA)
     Mineta
     Mink
     Moakley
     Mollohan
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Peterson (FL)
     Pomeroy
     Rangel
     Reed
     Reynolds
     Richardson
     Rivers
     Roemer
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Schumer
     Scott
     Serrano
     Skaggs
     Slaughter
     Spratt
     Stark
     Stokes
     Studds
     Stupak
     Thompson
     Torres
     Torricelli
     Towns
     Tucker
     Velazquez
     Vento
     Visclosky
     Ward
     Waters
     Watt (NC)
     Waxman
     Williams
     Wise
     Woolsey
     Wyden
     Wynn
     Yates

                               NOES--282

     Allard
     Andrews
     Archer
     Armey
     Bachus
     Baesler
     Baker (CA)
     Baker (LA)
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bentsen
     Bereuter
     Bevill
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Borski
     Brewster
     Browder
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chapman
     Chenoweth
     Christensen
     Chrysler
     Clement
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Condit
     Cooley
     Cox
     Cramer
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Danner
     Davis
     Deal
     DeLay
     Deutsch
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Dornan
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Gilman
     Goodlatte
     Goodling
     Goss
     Graham
     Green
     Greenwood
     Gunderson
     Gutknecht
     Hall (TX)
     Hancock
     Hansen
     Harman
     Hastert
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hefner
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Holden
     Horn
     Hostettler
     Houghton
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson (SD)
     Johnson, Sam
     Jones
     Kanjorski
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Laughlin
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Lincoln
     Linder
     Livingston
     LoBiondo
     Longley
     Lucas
     Manzullo
     Martini
     McCollum
     McCrery
     McDade
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Minge
     Molinari
     Montgomery
     Moorhead
     Moran
     Morella
     Murtha
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     Orton
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Peterson (MN)
     Petri
     Pickett
     Pombo
     Porter
     Portman
     Poshard
     Pryce
     Quillen
     Quinn
     Rahall
     Ramstad
     Regula
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rose
     Roth
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Talent
     Tanner
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Tejeda
     Thomas
     Thornberry
     Thornton
     Thurman
     Tiahrt
     Torkildsen
     Traficant
     Upton
     Volkmer
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wilson
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--3

     Collins (MI)
     Frank (MA)
     Radanovich

                              {time}  1631

  The Clerk announced the following pair:
  On this vote:

       Miss Collins of Michigan for, with Mr. Radanovich against.

  Messrs. ROSE, SPENCE, KLINK, MURTHA, ORTIZ, and DOYLE changed their 
vote from ``aye'' to ``no.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
            amendment offered by mr. watt of north carolina

  Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Watt of North Carolina: Page 4, 
     line 26, strike the period and insert the following:
       ``or a substantial showing that credible newly discovered 
     evidence which, had it been presented at trial, would 
     probably have resulted in an acquittal for the offense for 
     which the sentence was imposed or in some sentence other than 
     incarceration.''
       Page 4, line 26, Strike the entire sentence beginning with 
     the word ``The'' and ending with ``standard.''
       Page 15, line 7, delete the period and insert ``; or''
       Page 15, after line 7 add:
       ``(4) the facts underlying the claim consist of credible 
     newly discovered evidence which, had it presented to the 
     trier of fact or sentencing authority at trial, would 
     probably have resulted in an acquittal of the offense for 
     which the death sentence was imposed.''

  Mr. WATT of North Carolina. Mr. Chairman and colleagues, we have 
heard, again, the Constitution of the United States is under attack in 
this bill.
  There is only one place in the United States Constitution where the 
words habeas corpus are written. It is Article I, section 9, clause 2, 
which says, ``The privilege of the writ of habeas corpus shall not be 
suspended unless when in cases of rebellion or invasion the public 
safety may require it.''
  As much as I have looked for rebellion or invasion in our streets, 
among all the crime I have not found it. Yet here we are attempting to 
undermine the provision in the Constitution again.
  In the committee, Mrs. Schroeder brought in some evidence, a letter 
which was a letter of support from a number of different people and 
groups. And one of those groups was some people who felt strongly about 
supporting the Constitution because they had been involved with the 
Civil War issue. And the question was raised: Why would they have an 
interest in this? And I went back and looked, and I pointed out to the 
committee members that the reason that somebody who had some interest 
in slavery would have an interest in this bill was because the 
provisions, original provisions in the Constitution having to do with 
slavery, are in article I of the Constitution also.
  That provision in the Constitution says, and this is section 9, 
clause 1 of 
[[Page H1410]] article I of the Constitution, says, ``The migration or 
importation of such persons as any of the States now existing shall 
think proper to admit shall not be prohibited by the Congress prior to 
the year 1808,'' and then it goes on.
  My colleagues, we fought a Civil War a hundred years later in this 
country over this provision in the Constitution. A hundred years after 
the year 1808, southerners were still claiming that they had the right 
to bring slaves into the South. And a whole war was fought about this 
single line in the Constitution.
  And in 1 day in our Judiciary Committee, and apparently in less than 
2 hours or so of debate on this floor, we are getting ready to do 
essentially what a civil war was fought about in our country.
  We are undermining a simple provision in the Constitution, not the 
same provision, but I would submit to you that if that language 100 
years after the prohibition in the Constitution had expired, clearly 
based on the language was worth fighting for, surely the right of 
habeas corpus in this country ought to be worth fighting for.
  But here we are again, conservatives saying, ``This is a conservative 
group of people, we have a conservative Contract With America, we are 
conservatives, but we don't believe in the most conservative document 
that our country has ever had, and we would undermine it.''
  The CHAIRMAN. The time of the gentleman from North Carolina [Mr. 
Watt] has expired.
  (By unanimous consent, Mr. Watt of North Carolina was allowed to 
proceed for 4 additional minutes.)
  Mr. WATT. Mr. Chairman, the language is simple. It says, point blank, 
this is the only place you will find these words in the Constitution, 
there being no other reference to habeas corpus in the entire 
Constitution, and listen, let them resonate in this body, if they will, 
if anybody will listen to them. This is the Constitution of the United 
States that we are talking about.
  It simply says the privilege of the writ of habeas corpus shall not 
be suspended unless when in the cases of rebellion or invasion the 
public safety may require it. There is no rebellion or invasion. There 
may be a bunch of crime in the streets, but I ``ain't'' seen a 
rebellion and no invasion.

                              {time}  1640

  And here we are, undermining the writ, and I say to my colleagues, 
``Mind you, it doesn't say we can suspend it if we find probable cause. 
That's not here. That's what the language of the bill says, but that's 
not here in the Constitution. Nothing about probable cause. Probable 
cause is what we were arguing about in the last assault on the 
Constitution just a couple of hours ago that these conservative Members 
would have us do away with.''
  Well, what does my amendment do? It says, ``At least, if somebody 
comes forward with credible evidence of innocence, at least they ought 
to be guaranteed the protections that our Constitution provides to 
us.''
  And we are seeing it every day now. Advances in technology have given 
us DNA testing that allows us to run specific DNA testing to determine 
whether a person is guilty or innocent, and in a number of cases where 
this sophisticated technology--cases where people have been in jail for 
20 years, been on death row--this DNA technology is coming forward now 
and saying we went back, and we checked that blood sample, or that hair 
strand, or that fingerprint, or that little piece of clothing, and this 
person could not have been the perpetrator of this crime. Yet they sat 
in jail. They have been subjected to facing the death penalty.
  Mr. Chairman, all this amendment would do is preserve that right for 
them to raise credible evidence of innocence. We are talking about 
protecting people who can come in with credible evidence of innocence 
at any time during the proceeding.
  My colleagues, I am the last person who is going to get into an 
argument about who is the most conservative person in this body. I 
think I have demonstrated, when it comes to the Constitution, though 
not bragging rights in my district to go home and say I am a 
conservative, but, my colleagues, it is a conservative principle to 
uphold the Constitution of the United States. This is not radical 
liberal stuff. This is the stuff that our country is made of.
  So, Mr. Chairman, I ask my colleagues, in their haste to undermine 
habeas in a general way, at least preserve the rights and protections 
to those people who can still come forward with credible evidence of 
their own innocence. We should never, never, ever, put a person to 
death in this country when they are innocent because of procedural 
technicalities. In the last bill they were arguing all these procedural 
technicalities. Well, look. Give me a break. Give the people a break. 
We should never put anybody to death on a procedural technicality, and 
that is what this bill does. It poses an additional procedural 
technicality.
  Mr. McCOLLUM. Mr. Chairman, I rise in opposition to the amendment 
offered by the gentleman from North Carolina [Mr. Watt].
  Mr. Chairman, on the face of what the gentleman from North Carolina 
says and offers, one might make the assumption that it sounds perfectly 
reasonable. He says he wants somebody to have a shot at habeas corpus 
petitions and to appeal his conviction if he has newly discovered 
evidence which, had it been presented at trial, would probably have 
resulted in acquittal for the offense for which the sentence was 
imposed or in some sentence other than incarceration. That sounds 
reasonable, however it is contrary to existing law. It is contrary to 
existing court interpretation.
  I say to my colleagues, ``The standard for review of the question of 
whether or not you get a chance to set aside your death penalty case 
today on the basis of newly discovered evidence of guilt or innocence 
is that the petitioner, in the absence of constitutional error, which 
is other stuff, must show that the new factual evidence that he has 
presented unquestionably establishes innocence.'' That is a 1993 recent 
decision of the U.S. Supreme Court. Consequently what the gentleman 
offers would weaken the current law with respect to these processes.
  I would like to remind all of my colleagues that we are now not 
talking about somebody who has not gone through the due process 
considerations. We are not even talking about whether he had a 
competent counsel or not. We are talking about somebody who has been to 
trial, gone through a jury trial, been found guilty of some heinous 
crime that merits at least in the abstract principle the death penalty 
on the books of a State or the Federal Government, has taken an appeal 
of that undoubtedly all the way through the State, if it is a State 
case, the State supreme court, perhaps the U.S. Supreme Court, probably 
has gone through one or at least numerous appeals in Federal court 
under the habeas corpus statute, and I would commend the gentleman to 
technically observe, and it is just a technical question, that the 
habeas corpus we are talking about today is statutory, not the great 
writ in the Constitution. But he has probably taken several statutory 
habeas corpus appeals, perhaps State habeas, certainly Federal, and he 
has been denied. Somebody has found him to all the procedures to have 
been fine. He is found guilty the first time around. He was sentenced 
properly, et cetera, and how he comes up and comes up with some new 
standard that is going to be put in law that says for the first time, 
different from anything that we have done before in the history of the 
country on these cases, that, ``If you find new credible evidence that 
would probably have resulted in an acquittal for the offense for which 
the sentence is imposed, then a Federal court judge can set aside the 
case and sentence in the conviction and require a new trial.'' It means 
that there is going to be a relitigation virtually in front of this 
Federal judge because that Federal judge has got to make a decision 
that the new evidence would probably have resulted in an acquittal in 
the first place.
  This is a new complexity. It will give new opportunities for appeals. 
Most of these probably will be denied, and we would have lots more time 
dillydallying around before these sentences are carried out.
  So, as well-meaning as the gentleman's amendment may be on the 
surface, it actually undermines the very effort we are about to hear 
today, 
[[Page H1411]] which is to speed up the process of carrying out the 
death sentences in this country.
  We have a process now, I think that process is very, very fair. We do 
not alter it except in timetable sequence here today. We are not 
changing the underlying law and the rules that we play by in reviewing 
cases and death penalty cases. But the gentleman from North Carolina's 
amendment would change the underlying law. He would give another bite 
at the apple in the conditions and circumstances today the Supreme 
Court says, ``You don't have that right,'' and even establish an 
entirely new standard that does not presently today exist for appeals 
of death penalty cases.
  So, for all of those reasons I would oppose this amendment.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. McCOLLUM. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Let me be sure that the gentleman 
understands my amendment because I think he has a misconception of my 
amendment or he has a misconception of the law.
  My amendment only gets the person who is filing the habeas in the 
courthouse. This is not the standard for determining whether he wins or 
loses the case. This is the standard for determining whether the court 
will hear the case.
  I say to my colleague, ``If you look at page four where I have 
amended the bill, it says, `An appeal may not be taken to the Court of 
Appeals unless certain things apply,' and that's where my amendment 
comes into play. It allows him to take appeal. It doesn't set a 
different standard for that appeal once it is taken.''

                              {time}  1650

  If you look on page 14, it says, ``The District Court shall only 
consider a claim.'' And then it spells out certain circumstances.
  The CHAIRMAN. The time of the gentleman from Florida [Mr. McCollum] 
has expired.
  (At the request of Mr. Watt of North Carolina and by unanimous 
consent, Mr. McCollum was allowed to proceed for 3 additional minutes.)
  Mr. McCOLLUM. Mr. Chairman, I continue to yield to the gentleman from 
North Carolina [Mr. Watt].
  Mr. WATT of North Carolina. In that section it says, ``The court 
shall only consider a claim under certain circumstances.''
  I agree with the gentleman that this is not the standard for an 
ultimate disposition of the case, but it is the prevailing standard for 
determining whether one gets review or not. That standard was set out 
very recently by the court again in the case of Schlup versus Delo, 
January 23, 1995. This is the standard for getting a review. It is not 
the standard for determining whether somebody gets off or not.
  In that case, the court says, ``The standard requires the habeas 
petitioner to show that `a constitutional violation has probably 
resulted in the conviction of one who is actually innocent.''' That is 
the same language that I have picked up.
  So I just wanted to make sure that the gentleman understands. I am 
not trying to change the ultimate standard on which the person wins or 
loses. All this does is get the person into the courthouse so the court 
can evaluate the evidence.
  Mr. McCOLLUM. Mr. Chairman, reclaiming my time, I understand the 
point of the gentleman. But he changes the rules of how you get into 
the courthouse in the first place by striking out the current standards 
of having to have a constitutional infirmity. You do not have to have a 
constitutional infirmity after you have put your provision in. All you 
have to show is there is a probability that if you retry the case, you 
would be found innocent.
  In fact what the net result or net defect of this is going to be is 
that you have established a new process. You may technically say the 
standards have not changed in the sense that ultimately somewhere down 
the road the Supreme Court rulings would not be overturned, but the 
fact of the matter is you have given another bite of the apple to 
somebody on death row that he does not today have because today you 
have gained access under this process under something less heavy, a 
burden on him, than a burden that requires that you show a 
constitutional defect to get there.
  Mr. WATT of North Carolina. If the gentleman will yield further, I am 
not disputing what the gentleman says. Your bill says you have to raise 
a constitutional issue.
  Mr. McCOLLUM. So does current law.
  Mr. WATT of North Carolina. My amendment says that if you show that 
you are probably innocent, you should not have to raise a 
constitutional issue.
  If you can come into court at the outset and show there is evidence 
that you are probably innocent, why should we be telling somebody that 
they have got to raise a constitutional claim if they are probably 
innocent?
  The CHAIRMAN. The time of the gentleman from Florida [Mr. McCollum] 
has again expired.
  (By unanimous consent, Mr. McCollum was allowed to proceed for 1 
additional minute.)
  Mr. McCOLLUM. Mr. Chairman, I just want to explain to the gentleman 
and anybody else here listening to this, other Members, that the 
current standard, the current threshold for all of this, is either that 
you have a constitutional infirmity of some sort that gets you into the 
habeas corpus setting, and your appeals are then heard on that basis, 
you did not have the proper lawyer or whatever, or the factual evidence 
is that you are unquestionably innocent. And that is the standard, the 
Herrera case, a 1993 case. It has been confirmed in the Schlup case in 
January of this year.
  I would submit to the gentleman, while he may be intending to do 
something less than it is perceived by me to be doing, it seems on its 
face that he is making a weaker and less stringent standard in terms of 
getting to the appeal process, and thereby undermining what we are 
trying to do, to carry out sentences more quickly, and I urge the 
defeat of his amendment.
  Mr. SCOTT. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, as I understand the amendment, and the gentleman from 
North Carolina [Mr. Watt] can correct me if I am wrong, this is for 
people who are alleging that they are innocent and they are asking for 
an opportunity to be heard, and they have evidence that would show that 
they will probably be found not guilty if the evidence were to be 
heard.
  It seems to me that we have an unfortunate situation in that we have 
to have the same procedure for those that are in fact guilty and those 
that are in fact innocent, and we do not know until they are heard 
which category they fit in. So we have to have one procedure. So we are 
going to have the procedure for people that are innocent, and the 
gentleman's amendment would allow the person that is innocent to be 
heard.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. SCOTT. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. I think the gentleman from Florida [Mr. 
McCollum] is debating a different amendment than the one I offered. I 
am not trying to change the standard by which somebody wins or loses 
ultimately. What I am trying to do is make sure that somebody who has a 
credible claim of innocence does not sit in jail for 30, 40, or 50 
years without any remedies or rights; that somebody who has been 
sentenced to death does not go to the gas chamber or be put to death 
without being able to come into court and at least present their 
evidence. Once they present their evidence, the standard of whether 
they win or not is still going to be the same as the one that the 
gentleman from Florida [Mr. McCollum] has talked about.
  I cannot be any more blunt. I mean, the Supreme Court has said this 
is the exact standard, and they said it as recently as January 23, 
1995.
  So on the last bill we were trying to codify case law. This time we 
are trying to keep from codifying case law, because we do not care 
whether somebody is innocent or guilty; we just do not want them in our 
court system.
  Mr. Chairman, I cannot believe we would stand in this body and talk 
about some kind of procedural technicality to put somebody to death and 
not give somebody the opportunity if 
[[Page H1412]] they have got credible evidence of innocence to present 
that evidence. Have we become absolutely inhumane in our society and in 
our quest to deal with the crime problem in this country?
  Mr. HEINEMAN. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. HEINEMAN asked and was given permission to revise and extend his 
remarks.)
  Mr. HEINEMAN. Mr. Chairman, let us enter into this debate with a 
little practicality and a little what really happens out there in the 
street. We will walk the walk a little bit.
  On December 3, 1980, Kermit Smith kidnaped Whellette Collins and two 
of her girlfriends. He kidnaped them from Hallifax, NC. He robbed, 
raped, and murdered Whellette Collins. He attempted to rob her two 
girlfriends. They escaped.
  Mr. Kermit Smith was apprehended at the scene of the crime. He was 
tried and convicted of murder and sentenced to death.
  Despite the conviction, this case dragged on for 14 years, going 
before 46 judges and to the U.S. Supreme Court 5 times. Over 150 
different writs, stays, and motions were filed during these 14 years. 
Each delay caused the family of Whellette Collins horrendous pain, and 
justice was denied them over and over again. And just yesterday we were 
talking about victims compensation.
  Worse still, Smith should have been in prison at the time of the 
murder for an earlier offense. Not only do we have a problem with 
outrageous numbers of appeals on death row, but we also are turning 
criminals loose from a revolving door criminal justice system. I wish 
this was an isolated incident, but I am willing to wager that every 
Member in this distinguished body has a Kermit Smith in his or her 
district.
  In the course of ensuring the rights of criminals, we are throwing 
away the rights of the victims and the victims' families from these 
painful, extended habeas corpuses.

                              {time}  1700

  The current appeals process takes far too long and ties up our court 
system. Right now State courts hearing death penalty appeals are taking 
as long as 2\1/2\ years. When the Federal appeals process is factored 
in, an appeal can take as long as 15 years.
  Over 300,000 Americans have been murdered since the Supreme Court 
decision reinstating the death penalty. Approximately 250 criminals 
have been executed for those crimes. Some say the death penalty is not 
a deterrent. It would be a deterrent if it were carried out with surety 
and swiftness. Part of the reason it is not being used is because of 
the continual unending appeals process. Today we will change that.
  The public's safety is the first duty of government. It is why 
governments were created in the first place, to protect us from 
predators, both foreign and domestic.
  We are, in essence, all victims of government's inept handling of its 
first duty. Costs of victimization far outweigh the costs of 
incarceration. Violent crimes are escalating exponentially, despite the 
good intentions of the administration's hug-a-thug approach to criminal 
justice. According to the Department of Justice, if something 
drastically different is not done to reduce crime, five out of six of 
today's 12 year olds, your children and mine, will be victims of a 
successful or at least attempted violent crime in their lifetimes. That 
is five out of six.
  As a former chief of police with 38 years of law enforcement 
experience, I am deeply disturbed by these trends in our criminal 
justice system. As a father and grandfather, I am outraged.
  As the Congressman from the Fourth District of North Carolina and a 
member of the Committee on the Judiciary, I intend to take action. In 
this bill the Effective Death Penalty Act, we will return to the notion 
of deterrence. The only deterrence to criminal activity is punishment. 
Criminals, by their very definition, do not obey the law. We need to 
play hard ball so. So far we have not.
  More laws will only help if they affect the way the system works. 
This bill will change the way punishment is meted out. It creates 
consistent and fair procedures for the application of the death penalty 
and streamlines the appeals process. In America it seems we try 
anything once, except criminals.
  Over and over and over again criminals play the courts like the 
lottery, hoping to escape punishment on technicalities.
  I strongly urge my colleagues to vote for the Effective Death Penalty 
Reform Act.
                                      State of North Carolina,

                                    Raleigh, NC, January 27, 1995.
     Hon. Fred Heineman,
     House of Representatives, Longworth House Office Building, 
         Washington, DC.
       Dear Congressman Heineman: I urge you to push for action in 
     Congress this year to reduce the time for appeals in capital 
     murder cases to the minimum required by the Constitution.
       You may have read about the case of Kermit Smith, executed 
     this week for the brutal kidnapping, rape and murder of a 
     college cheerleader. Despite Smith's conviction, this case 
     dragged on for 14 years, going before 46 judges and to the 
     United States Supreme Court five times. As the victim's 
     family and friends told me, each delay caused new anguish. 
     This is not right.
       The current appeals process takes far too long and ties up 
     our court system. Right now, state courts hearing death 
     penalty appeals are taking as long as 2\1/2\ years. When the 
     federal appeals process is factored in, an appeal can take as 
     long as 15 years. I have included for your review, a 
     procedural outline of the Smith case.
       In the last two years, North Carolina has taken significant 
     steps to combat violent crime. We have built or authorized 
     the construction of more than 12,800 new prison beds, built 
     prison work farms and boot camps, and toughened punishment 
     for violent offenders. However, there is still much more to 
     be done to fight crime and protect the citizens of North 
     Carolina. I look forward to working with you on this 
     important issue.
       My warmest personal regards.
           Sincerely,
                                               James B. Hunt, Jr.,
                                                         Governor.
       Enclosure.

                   Procedural Outline on Kermit Smith

       12-3-4-80--Kermit Smith kidnapped Whellette Collins, Dawn 
     Killen and Yolanda Woods. He robbed, raped and murdered 
     Whellette Collins, he attempted to rob Dawn Killen and 
     Yolanda Woods. Smith was apprehended and arrested at the 
     scene.
       12-09-80--Halifax County Grand Jury returned true bills of 
     indictment charging Kermit Smith with murder, (Whellette 
     Collins) in Case #80 CRS 15266, Robbery with a Dangerous 
     Weapon, (Whellette Collins) in Case #80 CRS 15271 and First 
     Degree Rape (Whellette Collins) in Case #80 CRS 1565.
       04-30-81--Trial in Halifax County Superior Court, before 
     the Honorable George M. Fountain; Smith was found guilty of 
     second degree rape, common law robbery, first degree murder, 
     and received the Death Penalty for the first degree murder 
     conviction.
       04-30-81--Notice of Appeal to North Carolina Supreme Court.
       10-07-81--Motion to By-Pass the Court of Appeals for second 
     degree rape and common law robbery was granted.
       01-29-82--Defendant-Appellant's Brief was filed in the 
     North Carolina Supreme Court.
       02-18-82--State's brief was filed in the North Carolina 
     Supreme Court.
       06-02-82--Opinion by the North Carolina Supreme Court, 
     affirming convictions and sentences. State v. Smith, 305 N.C. 
     691, 292 S.E.2d 264 (1982).
       08-22-22--Petition for Writ of Certiorari filed by Smith in 
     United States Supreme Court, No. 8205335.
       11-29-82--Certiorari was denied by the U.S. Supreme Court. 
     Smith v. North Carolina, 459 U.S. 1056, 103 S.Ct. 474, 74 
     L.Ed.2d 622 (1982).
       06-06-83--Motion for Appropriate Relief filed by Smith in 
     Halifax County Superior Court.
       08-19-83--Order by Judge Frank R. Brown, limiting issues 
     for hearing. D.A. to file answer to claim V in 20 days.
       11-23-83--Amendment to Motion for Appropriate Relief filed 
     by Smith in Halifax County Superior Court.
       11-30-83--Answer to Motion for Appropriate Relief by State.
       12-5-16-83--Evidentiary hearing. State's proposed Findings 
     of Fact and Conclusions of Law.
       12-16-83--Order denying Motion for Appropriate Relief by 
     the Honorable Donald L. Smith, Halifax County Superior Court.
       12-16-83--Order setting new date for execution. Date of 
     execution is March 9, 1984.
       01-30-84--Order Staying Execution of Death Sentence by 
     Honorable Joseph Branch, Chief Justice of the North Carolina 
     Supreme Court.
       08-14-84--Petition was filed by defendant to the North 
     Carolina Supreme Court for certiorari to review the denial of 
     his Motion for Appropriate Relief.
       08-13-85--Order by the North Carolina Supreme Court denying 
     Petition for Writ of Certiorari to review the Superior Court 
     of Halifax County. State v. Smith,      N.C.     , 333 S.E.2d 
     495 (1985).
       10-15-85--Petition for a Writ of Certiorari filed in the 
     Supreme Court of the United States.
       [[Page H1413]] 11-12-85--Brief in opposition to petition 
     for writ of certiorari to the North Carolina Supreme Court.
       12-09-85--Order by the Supreme Court of the United States 
     denying certiorari. Smith v. North Carolina, 474 U.S. 1026, 
     106 S.Ct. 582, 88 L.Ed.2d 565 (1985).
       01-30-86--Renewed Petition for Certiorari and Alternative 
     Motion to Reconsider denial of certiorari filed by Smith to 
     the North Carolina Supreme Court.
       02-11-86--Order in response to Smith's renewed petition; 
     dismissed without prejudice to allow Smith to file a motion 
     for appropriate relief on the issue in the Superior Court of 
     Halifax County.
       04-04-86--Second Motion for Appropriate Relief by defendant 
     to Halifax County Superior Court.
       04-04-86--Brief in support of Motion for Appropriate Relief 
     by defendant.
       09-26-86--State's answer to Smith's Motion for Appropriate 
     Relief filed April 4, 1986.
       10-10-86--Smith's reply to the State's answer.
       10-16-86--Brief in opposition to Kermit Smith's Motion for 
     Appropriate Relief by the State.
       03-02-87--Oral argument scheduled for hearing on 
     defendant's Motion for Appropriate Relief.
       03-06-87--Defendant's proposed Findings of Fact.
       03-06-87--Motion for Appropriate Relief denied by Order of 
     Superior Court Judge I. Beverly Lake, Jr.
       06-01-87--Petition to the North Carolina Supreme Court for 
     certiorari to review the order of Judge Lake.
       02-05-88--Certiorari denied by the North Carolina Supreme 
     Court by the Honorable J. Whichard. State v. Smith,      N.C. 
         , 364 S.E.2d 668 (1988).
       02-25-88--Motion for Stay of Execution of Death Sentence, 
     execution scheduled for April 26, 1988; Motion Denied.
       03-01-88--Motion for Stay of Execution to the North 
     Carolina Supreme Court.
       03-09-88--Stay of Execution denied by Order of the Court in 
     conference, Honorable J. Whichard, North Carolina Supreme 
     Court.
       04-15-88--Petition for Writ of Certiorari filed in United 
     States Supreme Court seeking review of the Superior Court of 
     Halifax County, North Carolina.
       04-19-88--Motion for stay of execution pending disposition 
     of Petition for Writ of Certiorari and filing of petitions 
     for Writ of Habeas Corpus.
       04-20-88--Response to Smith's motion for a Stay of 
     Execution.
       04-21-88--Order Staying execution of death sentence.
       04-27-88--Order by United States Supreme Court denying 
     certiorari. Smith v. North Carolina, 485 U.S. 1030, 108 S.Ct. 
     1589, 99 L.Ed.2d 903 (1988).
       05-20-88--Petition for Writ of Habeas Corpus filed by Smith 
     pursuant to 28 U.S.C. Sec. 2254.
       06-30-88--Answer to Petition for Writ of Habeas Corpus--
     Habeas Corpus Rule 5, 28 U.S.C. 2243.
       12-15-88--Motion for evidentiary hearing. (Rule 8, Rules 
     Governing Sec. 2254 cases in the United States District 
     Courts.
       12-15-88--Request for Discovery. (Rule 6, Rules Governing 
     Sec. 2254 cases in the United States District Courts.
       12-15-88--Memorandum in support of Petitioner's Motion for 
     Evidentiary Hearing.
       12-15-88--Memorandum of Law in Support of Petitioner's 
     request for discovery.
       12-22-88--Memorandum in Opposition to request for 
     discovery, Habeas Rule 6(a), Local Rules 4.05 and 5.01--
     Denied.
       01-23-89--Memorandum in Support of Petition for 
     Reconsideration/Request for Reconsideration.
       01-31-89--Request for Reconsideration denied.
       02-16-89--Request to expand the length of Petitioner's 
     brief.
       02-22-89--Request to expand both petitioner and 
     respondent's brief is allowed.
       02-28-89--Brief in Support of Petition for Writ of Habeas 
     corpus by Petitioner.
       03-28-89--Motion for Extension of Time to file respondent's 
     brief.
       03-30-89--Order granting extension of time to file brief in 
     response to Petitioner's brief is allowed. Brief should be 
     filed by May 1, 1989.
       04-21-89--Brief in support of respondent's answer to 
     petition for Writ of Habeas Corpus.
       04-24-89--Motion for extension of time within which to file 
     petitioner's reply brief and for permission to file a reply 
     brief in excess of their pages.
       05-30-89--Memorandum in support of renewed motion for 
     evidentiary hearing, discovery, and expert assistance.
       05-30-89--Renewed motion for evidentiary hearing, discovery 
     and expert assistance.
       10-11-89--Order from United States District Judge, W. Earl 
     Britt, reference decision in State v. McKoy.
       11-27-89--Reponse to Motion for Authorization to obtain 
     services of Resource Counsel.
       04-27-90--Order allowing extension of time by petitioner. 
     Motion to defer further proceedings is denied by Judge Britt, 
     United States District Judge.
       05-04-90--Petitioner's brief on the applicability of the 
     Supreme Court's decision in McKoy v. North Carolina, 494 U.S. 
     433 (1990).
       07-06-90--Motion to remand to the Superior Court of Halifax 
     County for the imposition of a life sentence, or, in the 
     alternative, petition for writ of certiorari.
       07-06-90--Memorandum in Support of Motion to Defer Further 
     Proceedings pending Re-exhaustion in the Courts of North 
     Carolina.
       07-06-90--Motion to Defer further proceedings pending re-
     exhaustion in the Courts of North Carolina.
       07-31-90--Memorandum in opposition to Petitioner's motion 
     to defer further proceedings pending re-exhaustion in the 
     Courts of North Carolina.
       08-09-90--Order--Petitioner's motion is allowed and further 
     consideration of petition by the Court is deferred pending 
     ruling by the North Carolina Supreme Court of petitioner's 
     ``Motion to Remand to the Superior Court of Halifax County 
     for the Imposition of a Life Sentence'', or, in the 
     alternative, Petition for Writ of Certiorari.
       09-24-90--Reponse in Opposition to Petitioner's Motion to 
     Remand to the Superior Court of Halifax County for the 
     Imposition of a Life Sentence, or, in the Alternative, 
     Petition for Writ of Certiorari.
       11-01-90--Order--the motion by respondent for leave to 
     amend his answer to the petition is allowed.
       11-07-90--Reply (Traverse) to amended answer to petition 
     for Writ of Habeas Corpus.
       12-10-90--Brief in support of Respondent's Amended Answer 
     to Petition for Writ of Habeas Corpus. Habeas Rule 5, 28 
     U.S.C. Sec. 2243.
       12-11-90--Motion to suspend page limitation of local rule 
     5.05.
       12-12-90--Motion to extend page limitation.
       12-13-90--Motion to suspend page limitation of local rule 
     5.05 for supporting memorandum is granted.
       12-13-90--Petitioner's supplemental brief on the issue of 
     retroactively.
       06-10-91--Memorandum Opinion: For reason stated in Section 
     III.C. of this opinion Kermit Smith's petition for a Writ of 
     Habeas Corpus is hereby granted, subject to further review by 
     the North Carolina Supreme Court. Petitioner is not entitled 
     to any relief on the remainder of his claim.
       06-10-91--It is ordered that for reasons stated in Section 
     III.C. of the Memorandum Opinion filed on June 10, 1991, the 
     petition for a writ of habeas corpus is hereby granted 
     subject to further review by the North Carolina Supreme Court 
     and the petitioner is not entitled to any relief on the 
     remainder of his claim. Smith v. Dixon, 766 F.Supp. 1370 
     (E.D.N.C. 1991).
       06-20-91--Respondent's Motion for Amendment of Judgment, 
     Fed.R.Civ.Proc. 59(e).
       06-20-91--Memorandum in support of respondent's Motion for 
     Amendment of Judgment, Local Rules 4.04 and 5.01.
       06-24-91--Memorandum in support of Petitioner's Motion to 
     alter or to amend the Judgment.
       06-24-91--Petitioner's Motion to Alter or to Amend the 
     Judgment.
       07-15-91--Petitioner's response to respondent's Motion for 
     Amendment of Judgment.
       08-14-91--Order: It is ordered and adjudged that for the 
     reasons stated in Section III.C. of the Memorandum Opinion 
     filed on June 10, 1991, the petition for a writ of habeas 
     corpus is hereby granted and defendant is ordered discharged 
     from his sentence of death to be re-sentenced to life 
     imprisonment unless the State of North Carolina shall conduct 
     a re-sentencing hearing pursuant to N.C.Gen.Stat. Sec. 15A-
     2000 within 180 days of the entry of judgment. Entry of this 
     judgment is stayed for 90 days to permit respondent to seek 
     further review in the North Carolina Supreme Court in 
     accordance with Clemons v. Mississippi, 494 U.S. 738 (1990). 
     If such review is not obtained by November 15, 1991, this 
     judgment will then become effective. If such review is 
     obtained during this time period, entry of judgment will 
     remain stayed until the stay is lifted by this court on 
     motion by either party. Petitioner is not entitled to any 
     relief on the remainder of his claims.
       08-19-91--Corrected Amendment: that for reasons stated in 
     Section III.C. of the Memorandum Opinion filed on June 10, 
     1991, the petition for writ of habeas corpus is hereby 
     granted and defendant is ordered discharged from his sentence 
     of death to be resentenced to life imprisonment unless the 
     State of North Carolina shall conduct a resentencing hearing 
     pursuant to N.C.Gen.Stat. Sec. 15A-2000 within 180 days of 
     the entry of judgment.
       10-01-91--Petition for Writ of Certiorari filed by State in 
     North Carolina Supreme Court requesting clarification of 
     basis for finding on direct appeal that ``especially heinous, 
     atrocious, or cruel'' was supported by evidence, and whether 
     instructional error was harmless.
       11-14-91--Order: The stay in the entry of the Court's 
     judgment is hereby extended from its current expiration date 
     of November 15, 1991 until seven days followed the denial of 
     the petition or seven days following a decision on the merits 
     in the event that the State of North Carolina grants 
     certiorari.
       11-15-91--North Carolina Supreme Court denied State's 
     petition, believing it did not have appellate jurisdiction. 
     State v. Smith, 330 N.C. 617, 412 S.E.2d (1991).
       12-02-91--Order: The Clerk is hereby directed to enter the 
     corrected amended judgment which was filed on August 18, 
     1991.
       12-13-91--Motion for stay of order granting writ of habeas 
     corpus Fed. R. App. P. 8(a).
       12-13-91--Notice of Appeal: State enters notice of appeal 
     to the United States Court of Appeals for the Fourth Circuit 
     from the final judgment entered June 10, 1991, modified 
     August 19, 1991, and ordered into effect on November 30, 1991 
     issuing a writ of habeas corpus to Kermit Smith, Jr. 
     requiring resentencing.
       [[Page H1414]] 12-13-91--State's Memorandum in support of 
     motion for stay of writ of Habeas Corpus.
       12-24-91--State's Appeal docketed in the United States 
     Court of Appeals for the Fourth Circuit.
       12-27-91--Notice of Smith's Cross-Appeal to the United 
     States Court of Appeals for the Fourth Circuit.
       12-27-91--Response to respondent's motion for stay of order 
     granting writ of habeas corpus.
       12-27-91--Memorandum in support of Petitioner's request for 
     issuance of a certificate of probable cause.
       12-30-91--Smith's Cross-Appeal docketed in Fourth Circuit.
       01-03-92--Order: August 19, 1991 judgment is hereby stayed 
     until further order of this Court; respondent is not required 
     to post a supersedeous bond. The court finds that petitioner 
     does have probable cause for his cross appeal and therefore 
     grants a certificate of probable cause.
       01-11-92--Fourth Circuit appoints C. Frank Goldsmith, Jr., 
     of Marion, N.C., and Martha Melinda Lawrence of Raleigh, 
     N.C., as counsel, and the North Carolina Resource Center as 
     ``consultant.''
       01-11-92--Fourth Circuit's Briefing Order, directing 
     State's opening Brief and Appendix to be filed by 2-20-92.
       01-16-92--State's Letter to Smith's counsel designating 
     Appendix.
       01-31-92--Smith's designations for Appendix.
       02-18-92--Order Appointing Counsel Nunc Pro Tunc.
       02-20-92--The State timely filed its opening Brief of 
     Appellant in Fourth Circuit.
       03-02-92--District Court Order approving CJA Form 20 
     payment for counsel's requesting hours; and in addition, 
     reimbursement for expenses incurred.
       03-06-92--Smith's motion to exceed page limitation for his 
     Brief.
       03-10-92--Order by Fourth Circuit granting Smith leave to 
     file Brief not to exceed 100 pages.
       03-24-92--Smith first submitted to Fourth Circuit his 100-
     page Brief of Appellee/Cross-Appellant.
       03-26-92--Brief returned to Smith because of improper 
     material in the addendum; Smith was directed to resubmit his 
     Brief in proper form on or before April 6, 1992; State's time 
     not to begin running until Smith's Brief resubmitted and 
     filed.
       04-05-92--Smith refiled Brief of Appellee/Cross-Appellee.
       04-22-92--State filed motion to suspend page limitation, 
     seeking leave to file a Brief not to exceed 100 pages.
       04-27-92--Order by Fourth Circuit granting State leave to 
     file Brief not to exceed 100 pages.
       05-08-92--State filed its Brief of Appellant/Cross-
     Appellee.
       05-12-92--Smith's motion to exceed page limitation for his 
     Reply Brief.
       05-18-92--Order by Fourth Circuit granting Smith leave to 
     file Reply Brief not to exceed 50 pages.
       05-26-92--Smith filed his Reply Brief.
       05-27-92--State's Letter of Additional Authorities.
       09-22-92--Smith's Letter of Additional Authorities.
       09-23-92--Smith's Motion for Additional Time for Oral 
     Argument.
       09-28-92--State's Letter of Additional Authorities, citing 
     Nickerson v. Lee, 971 F.2d 1125 (4th Cir. 1992), cert. 
     denied,    U.S.    , 113 S. Ct. 1289 (1983).
       09-28-92--Smith's Letter of Additional Authorities.
       09-29-92--Order by Fourth Circuit denying Smith's motion 
     for additional oral argument time.
       09-30-92--Argument heard in Fourth Circuit before Wilkins, 
     Butzner, and Sprouse.
       05-10-93--State's Letter of Additional Authorities.
       06-11-93--Fourth Circuit 2-to-1 panel decision affirming 
     District Court's grant of resentencing, but otherwise denying 
     relief on remaining grounds. Smith v. Dixon, 996 F.2d 667 
     (4th Cir. 1993).
       06-22-93--State filed Petition for Rehearing and Suggestion 
     for Rehearing In Banc.
       06-25-93--Letter from Fourth Circuit to Smith's counsel 
     requesting answer to State's Petition for Rehearing and 
     Suggestion for Rehearing In Banc, and that answer be filed by 
     7/6/93.
       07-06-93--Smith's Response to Petition for Rehearing and 
     Suggestion for Rehearing In Banc.
       07-19-93--Order by Fourth Circuit making technical 
     amendments to opinion filed 6/11/93.
       07-23-93--Order by Fourth Circuit granting rehearing In 
     banc, calendaring case for October session, and directing 
     additional copies of briefs and appendix to be filed.
       08-23-93--Smith's Motion for Leave to File Supplement 
     Brief.
       09-03-93--Order by Fourth Circuit granting ``the parties 
     leave to file supplemental briefs not in excess of 25 pages 
     each''; required Smith's brief to be filed on or before 9-13-
     93, and that State's responsive brief, if any, be filed on or 
     before 9-21-93.
       09-08-93--Smith filed motion seeking to reorder the 
     supplemental briefing schedule so that briefs to be filed 
     simultaneously, or he be granted extension of time.
       09-08-93--State's Response to Smith's motion to reorder 
     briefing/for extension of time.
       09-09-93--Order by Fourth Circuit extending time for Smith 
     to file his supplemental brief until 9-17-93, and directing 
     that any responsive brief by the State be filed on or before 
     9-24-93.
       09-20-93--Smith's Supplemental Brief received by Fourth 
     Circuit.
       09-21-93--State was notified by Henderson Hill of North 
     Carolina Resource Center that Kenneth J. Rose, counsel for 
     David Huffstetler, would be submitting a motion for leave to 
     file an amicus curiae brief in Smith's appeal.
       09-22-93--State was served with copies of Huffstetler's 
     motion, amicus curiae brief, and attachments, along with a 
     motion for leave to file the attachments to the amicus curiae 
     brief.
       09-23-93--State's Supplemental Brief forwarded to Fourth 
     Circuit by facsimile, with originals sent to Fourth Circuit 
     by Federal Express.
       09-23-93--State filed motion for leave to file attachments 
     to its Supplemental Brief, and Attachments under separate 
     cover.
       09-24-93--State filed Response in Opposition to 
     Huffstetler's motions for leave to file amicus curiae brief 
     and for leave to file attachments.
       09-24-93--Smith's Letter of Additional Authorities.
       09-28-93--Argument on Rehearing in Banc.
       01-21-94--Fourth Circuit decision reversing district 
     court's grant of rescentencing, 9-to-5, Smith v. Dixon,      
     F.2d.      (4th Cir., Jan. 21, 1994) (In Banc).
       02-04-94--Smith's Petition for Rehearing.
       02-28-94--Fourth Circuit Order denying Smith's Petition for 
     Rehearing.
       03-93-94--Smith's Motion for Stay of Mandate.
       03-14-94--Fourth Circuit Order granting Smith's Motion and 
     staying issuance of mandate for 30 days.
       05-27-94--Smith's Petition for Writ of Certiorari filed in 
     United States Supreme Court seeking review of Fourth 
     Circuit's en banc decision on appeal. No. 93-9353.
       08-22-94--State's Brief in Opposition to Petition for Writ 
     of Certiorari filed in United States Supreme Court.
       10-03-94--Certiorari denied by the United States Supreme 
     Court. Smith v. Dixon,      U.S.     , 115 S.Ct. 129, 130 
     L.Ed.2d 72 (1994).
       10-27-94--Hearing held in Halifax County Superior Court, 
     and Superior Court Judge James C. Spencer, Jr. Rescheduled 
     Smith's execution for Tuesday, January 24, 1995.
       12-09-94--Smith's filed Motion for Consideration of 
     untimely Petition for Rehearing, along with Petition for 
     Rehearing in United States Supreme Court.
       12-19-94--Smith filed Third Motion for Appropriate Relief 
     in Halifax County Superior Court.
       12-29-94--State filed Answer to Smith's Third Motion for 
     Appropriate Relief.
       01-03-95--Hearing held before Superior Court Judge J.B. 
     Allen, Jr. in Halifax County Superior Court on Smith's Third 
     Motion for Appropriate Relief, and Memorandum Opinion and 
     Order Denying Motion.
       01-04-95--Clemency Hearing held before Honorable James B. 
     Hunt, Jr., Governor of North Carolina.

  Mr. Chairman, I yield to the gentleman from North Carolina [Mr. 
Watt].
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for 
yielding. He is my colleague from North Carolina. Both of us represent 
different parts of the State, and I have the utmost respect for him. He 
has been involved in law enforcement for a number of years.
  I am not going to try to take issue with the fact that everybody 
could come to this floor and bring an example where the process has 
been abused.
  The CHAIRMAN. The time of the gentleman from North Carolina [Mr. 
Heineman] has expired.
  (On request of Mr. Watt of North Carolina, and by unanimous consent, 
Mr. Heineman was allowed to proceed for 1 additional minute.)
  Mr. HEINEMAN. Mr. Chairman, I yield to the gentleman from North 
Carolina [Mr. Watt].
  Mr. WATT of North Carolina. Mr. Chairman, there is one part of what 
the gentleman said that I just want to make sure that everybody 
understands. He talked about being a father and being a grandfather and 
doing what is necessary to protect his children and grandchildren.
  I want to make sure that I am clear that the gentleman would not go 
out, a father and grandfather, and avenge a crime committed against his 
child or his grandchild by shooting somebody who is innocent. And that 
is what this amendment deals with.
  I have no problem with the gentleman taking out whatever animosity or 
whatever frustration he has against victims, against a person who is 
guilty. But if a person is innocent, we do not sanction in this country 
going out and taking the life of somebody else just because the 
gentleman is frustrated.
  Mr. WYNN. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in support of the Watt amendment and perhaps 
unlike 
[[Page H1415]] some other supporters, I am not, I repeat, not an 
opponent of the death penalty. But I felt I had to rise today to remind 
my colleagues, some of whom are on the other side, that the issue is 
not speed, the issue is justice. And the distinguished gentleman from 
Florida said that in looking at this amendment, we are creating another 
way to get to court. And the only way that the defendant ought to get 
to court is if he alleges under current law that there is some sort of 
constitutional infirmity with his conviction.
  I understand that. I have practiced a little law in my time. But the 
point, Mr. Chairman, is this, that, yes, you ought to be able to get 
into the courthouse if you have a constitutional infirmity in your 
case. You ought to be able to make your case. But you also ought to be 
able to get into the courthouse if you are innocent.
  If you have evidence of probable innocence, our American judicial 
system ought to say, the courthouse door swings open for you. You can 
come through the door and present that evidence.
  Now, the gentleman may suggest, well, that is a radical change. I am 
not going to debate that point. I would suggest, maybe it is. In the 
State of Maryland we recently had a man who sat on death row for 8 
years for a rape-murder, probably as tragic and horrific as any of my 
colleagues can imagine. After 8 years, through DNA evidence, it was 
determined he was in fact not the perpetrator. Thankfully, he had not 
been executed.
  That evidence should be available to the court. That at least ought 
to get him in the courthouse door.
  There have been other cases throughout the country in which 
recantations of testimony have resulted in the determination that the 
accused sitting on death row was in fact an innocent man.
  As I said, Mr. Chairman, it is not a question of speed, it is a 
question of justice. And justice demands that if someone can prove or 
establish the probability of their innocence, they ought to at least be 
allowed to come through the courthouse door. There will be time to 
conduct the execution, if that is merited, if that is the case, but 
certainly, we ought to seek justice before we seek speed.
  Mr. Chairman, I yield to the gentleman from North Carolina [Mr. 
Watt].
  Mr. WATT of North Carolina. Mr. Chairman, just for the brief purpose 
of assuring the gentleman that this is not a radical change. January 
1995, January 23, 1995, this year, the Supreme Court said that this is 
the law. And all I am trying to do is stop them from changing the law.
  I want them to put the law in as the Supreme Court has said it is. 
This is not a change from existing law. I assure the gentleman.
  Mr. WYNN. Reclaiming my time, Mr. Chairman, I want to thank the 
gentleman for pointing that out and also commend him for the 
thoroughness of his research. To the extent it is not a radical change, 
I do not even believe the opposition can rely on that argument.
  We are simply attempting, according to the sponsor, to codify 
existing law which has been well reasoned by the higher courts in 
determining that once again justice takes precedence over expediency.
  Mr. CHABOT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, the gentleman from North Carolina is very articulate 
and obviously feels very strongly about this particular subject. Many 
of us on this side of the aisle, however, feel very strongly as well.
  To address the issue of habeas corpus, the allegation is made that 
many on this side of the aisle want to attack the Constitution and that 
we are not really conservative because we are attacking the 
constitution. That is inaccurate. And there is a report that I would 
like to refer to at this time, the Supreme Court Justice Lewis Powell 
recently chaired an ad hoc committee of Federal habeas corpus in 
capital cases. I would like to read a couple of sentences from that, 
because I think it really clears up some of the things that have been 
said here today.
  What it says is that, ``contrary to what may be assumed, the 
Constitution does not provide for federal habeas corpus review of state 
court decisions.''
  The Constitution does not provide that.
  ``The writ of habeas corpus available to state prisoners is not that 
mentioned in the Constitution. It has evolved from a statute enacted by 
Congress, now codified in section 28 U.S.C. section 2254.''
  So it is not an attack on the Constitution. What we are talking about 
is a revision, a change in statute that was enacted by this body. So 
this body is now taking appropriate action to change a previous 
statute.

                              {time}  1710

  Mr. Chairman, let us look at what is really happening here. The 
people of this country feel very much the way I do, that the death 
penalty in this country is not being used to the degree that most 
people want it to be used. We have a death penalty on the books. There 
are many people, particularly of a liberal persuasion, who will say 
that the death penalty is not a deterrent to murder, it is not a 
detterent to crime.
  I would submit, Mr. Chairman, that if that is true, and I do not 
agree that that is true, but if it is true, it is because of the way 
the death penalty in this country has been carried out. That is, that 
people remain on death row for years and years and years.
  Let us just look at the case of John Wayne Gacy in Chicago. John 
Wayne Gacy, the killer clown who killed dozens of people and was 
stuffing them underneath his porch, underneath his basement, this man 
was on death row for 16 years, so for 16 years the taxpayers are 
keeping this gentleman alive, providing him with television, providing 
him with food, providing him with an attorney. It took 16 years to 
execute this individual. That is not that unusual in this country. 
People are on death row for 10 years, 12 years.
  The last execution we have had in my State, the State of Ohio, was in 
the early sixties. It has been over 30 years. I will sometimes have 
people in Ohio say, generally, again, of the liberal persuasion, they 
will tell me that the death penalty is not a deterrent. If it is not, 
it is because of the way that it has been carried out in this country.
  Mr. Chairman, I would submit that what we need to do is to have a 
fair appeals process, but an appeals process that is much shorter than 
what we have right now. I would submit that sometime in the near future 
I would like to see the death penalty process dramatically reduced to a 
year, 2 years, something like that. Even whether with what we are 
proposing here today it is still going to be much longer than what I 
would like to see it, but it is an improvement over what we have now. 
That is why I strongly support this measure and believe that it is time 
that we made the death penalty work in this country. If it does not 
work right now, it is because of the length of time that people remain 
on death row at taxpayer expense. The people in this country are sick 
and tired of paying for cable TV and paying for the food and lawyers 
for those that have killed innocent people.
  One final point I would like to make. The people it is really not 
fair to are the victims, those families of the people that were 
murdered, those innocent victims that have the appeals process come up, 
they have to go in and testify. It is like ripping open that wound, 
until the person is finally executed. It is time we had a fair and fast 
appeals process so that the death penalty really will be a deterrent. 
Then we are really protecting life in this country.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. CHABOT. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. I appreciate the gentleman yielding.
  Mr. Chairman, I want to make sure the gentleman is clear. This is not 
about whether we support the death penalty or not. There is nothing in 
this that deals with the death penalty. It is not about the length of 
appeals. It is about how you get your foot in the door to raise an 
issue, whether if you have credible evidence that you did not commit 
the crime, credible evidence of innocence, that you can go through the 
same process that you go through that you set up in the bill.
  Mr. CHABOT. Reclaiming my time, let us also be clear as to what has 
happened. A jury of one's peers has already 
[[Page H1416]] convicted this person beyond reasonable doubt.
  The CHAIRMAN. The time of the gentleman from Ohio [Mr. Chabot] has 
expired.
  (By unanimous consent, Mr. Chabot was allowed to proceed for 1 
additional minute.)
  Mr. CHABOT. Mr. Chairman, let us also be clear that the person who is 
on death row, if we are talking the death penalty, and I am in this 
particular instance, that person was already convicted by his or her 
peers at a fair trial beyond a reasonable doubt. It has already gone 
through a fairly extensive appeals process.
  We are talking about another layer after they have gone through the 
State appeals, they are at the Federal appeals. I think the gentleman 
from North Carolina [Mr. Watt] would probably agree that it does not 
make any sense for people to remain on death row for 10, 12, 16 years.
  Mr. WATT of North Carolina. If the gentleman will continue to yield, 
Mr. Chairman, I just want to make sure that the process that the 
gentleman has set up for raising constitutional issues is the same 
process within which this language would fit.
  It does not change that process. It does not prolong it any longer 
than raising a constitutional claim prolongs it.
  The CHAIRMAN. The time of the gentleman from Ohio [Mr. Chabot] has 
expired.
  (At the request of Mr. McCollum and by unanimous consent, Mr. Chabot 
was allowed to proceed for 2 additional minutes.)
  Mr. WATT of North Carolina. If the gentleman will continue to yield, 
Mr. Chairman, it is not about the death penalty procedure, it is about 
somebody coming in with credible evidence of innocence. I just wanted 
to make sure the gentleman understands.
  Mr. CHABOT. Reclaiming my time, Mr. Chairman, I yield to the 
gentleman from Florida [Mr. McCollum].
  Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding.
  Mr. Chairman, the point of this is that by doing this new procedure 
that the gentleman wants us to put into this law today, the gentleman 
would extend the opportunity for delay, because he would extend the 
opportunity for another bite at the apple.
  Granted, it is not a constitutional right. The gentleman is creating 
a new one here, to come in under a probably innocent standard of some 
sort to get into the door for another appeal.
  As the gentleman from Ohio [Mr. Chabot] has stated, somebody might 
have had 10 or 15 appeals already on a constitutional basis and then 
they come up with new affidavit, some missing aunt or uncle comes in 
and says ``At 10 o'clock that night, by golly, I saw him down on Park 
Avenue, instead of where the crime was committed.''
  Here is new evidence. If it had been admitted, maybe a Federal judge 
will say it is probably something the court would have considered and 
found the guy innocent for. By golly, they have a new appeal, and it 
does delay the carrying out.
  That is why the District Attorney's Association nationally has said 
that the Watt amendment would dramatically expand death row inmates' 
opportunities to relitigate their convictions, and opposes this. That 
is why they say that the amendment of the gentleman from North Carolina 
[Mr. Watt] would make it easier for death row inmates to reopen their 
cases and delay the caseload of death row inmates, delaying their 
sentences.
  Mr. Chairman, I think the gentleman has made a point, the gentleman 
from Ohio [Mr. Chabot]. I understand the point of the gentleman from 
North Carolina [Mr. Watt], but I think the gentleman's point is equally 
and I believe preferentially made, and I believe this amendment should 
be defeated, because it would delay further the carrying out of 
sentences on death row inmates, and not do anything more than add a new 
door, a new avenue to that appellate process.
  Mr. FATTAH. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I was not going to participate in this discussion, but 
I think it is important that voices be raised on this subject. 
Seemingly, to me, since I have come to Washington, people have spent a 
lot of time trying to make simple things complex.
  The gentleman from North Carolina [Mr. Watt] has offered a very 
simple amendment that says that if there is evidence of innocence that 
an objective court would consider as a circumstance in which the person 
would probably be found innocent, then that should allow them an 
opportunity to bring that matter before the court.
  We are off talking about how quickly people should be put to death 
and all these other matters. Now we have the gentleman who just 
previously spoke talking about aunts and uncles.
  We should not trivialize the matter of innocence in terms of people 
who should not be victimized in terms of imprisoned in our land, or 
suffer the ultimate penalty, the death penalty, if in fact they are 
innocent.
  Mr. Chairman, just as the case has been made that there are people 
who have strung these things out who were obviously guilty, I think 
that in almost every state of the union we could find examples of 
people who have been found innocent who have been in prison for long 
periods of time, and who have been put under the death penalty.
  Whether we come to the floor and parade horrendous crimes that have 
been committed on one hand, and people seemingly have not suffered the 
appropriate punishment, or rather, whether we would take the time and 
look at the cases of people who have been jailed year in and year out, 
some for decades, almost lifetimes, who were absolutely innocent, that 
the same D.A. associations and others would be just as concerned for 
innocent Americans being wrongfully convicted and being locked out of 
an opportunity to present their cases to the court.
  Mr. Chairman, the preamble to our Constitution requires us to, in 
part, participate in the process of creating a justice system in our 
land. That is our responsibility. It is not our responsibility to join 
the mob out in front of the jailhouse asking that someone be hung, or 
killed that night, before a trial and a jury have found them to be 
absolutely guilty beyond a reasonable doubt.
  Mr. Chairman, I would say, finally, being not a lawyer, I am 
constantly interested in these matters, nonetheless. Reading the trade 
journal of the American Bar Association in January 1994, January a year 
ago, there were two interesting articles.
  One was about a young man in one of our 50 States who was on death 
row, and because of some procedural circumstances, could not get his 
case back before the court, who appeared to be innocent based on all of 
the evidence now available.

                          ____________________