[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.
____________________