[Congressional Record Volume 141, Number 25 (Wednesday, February 8, 1995)]
[House]
[Pages H1416-H1425]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
{time} 1720
There was another case this same magazine had in it in the same month
of a young man who admitted, confessed that he had killed two people in
the process of a drug transaction who had now served some 10 years and
had been let go and was then a student at that time in law school in
another one of our 50 States.
This is an interesting circumstance that now the Congress tonight,
after disposing, after voting against the notion of competent counsel
for people would now suggest that even if there is probable cause of
innocence that that is not in and of itself enough to give them an
opportunity to present their case.
Ms. PELOSI. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in strong support of the amendment offered by
the gentleman from North Carolina [Mr. Watt] and in opposition to H.R.
729, the Effective Death Penalty Act. I do not believe that this debate
is whether we should have a death penalty under circumstances under
which it should be imposed. Rather it is about whether a person who is
innocent can be spared from having a capital punishment exacted upon
them.
The amendment of the gentleman from North Carolina [Mr. Watt] is more
necessary now than before, because this crime bill, the series of bills
being put together now continues what I consider to be the unfortunate
trend of last year's crime bill which made more crimes punishable by
the death penalty.
One would think that if one were a strong advocate for capital
punishment
[[Page H1417]] that one would also be a strong advocate for competent
counsel, as the amendment offered by the gentleman from New York [Mr.
Schumer] proposed, or the amendment offered by the gentleman from North
Carolina [Mr. Watt] to make sure that an innocent person did not
receive the death penalty.
A majority of the people in this House clearly believe that
procedures governing habeas corpus may need reform, Mr. Chairman, but
this bill goes too far in limiting the fundamental right of appeal
which is to protect innocent people from being executed and that is why
it is so very important that the Watt amendment be given every
consideration by this body, hopefully favorable.
What it says, and I think it is very important for our colleagues to
understand, as the gentleman from North Carolina [Mr. Watt] has
explained what it says, and that it is very important for all of the
people of our country to understand what it says, because it affects
each and every one of them, every person sitting at home watching this
debate has to know that if he or she or any member of their families is
ever convicted unjustly and incorrectly of a crime, especially a crime
that calls for capital punishment, that he or she would not be able to
have recourse should a witness come forward, or DNA evidence prove, or
a confession come forward to prove that person's innocence.
The Watt amendment says, and it relates to credible, newly discovered
evidence, which had it been presented to the trier of fact or
sentencing authority at trial would probably have resulted in the
acquittal of the offense for which the death sentence was imposed.
So, my friends, if you are sitting at home on your sofa and one of
your children is accused and convicted of a crime and sentenced to the
death penalty and has exhausted his habeas corpus procedures, and
someone confesses to that crime, tough luck. That is not the American
way.
Mr. Chairman, I would like to engage the gentleman from North
Carolina [Mr. Watt] in a colloquy to ask him precisely these questions.
if someone is convicted of a capital offense and sentenced to death,
and a witness comes forward who can prove, who can give credible
evidence that the person is probably innocent, would that person not
have that opportunity for that witness to come forward?
Mr. WATT of North Carolina. Will the gentlewoman yield?
Ms. PELOSI. I am happy to yield to the gentleman from North Carolina.
Mr. WATT of North Carolina. If this bill passes they would not have
that opportunity.
Ms. PELOSI. And if someone made a confession to the crime?
Mr. WATT of North Carolina. Let me go back because the gentleman from
New York [Mr. Schumer] has reminded me that under present law they
actually would have the right to raise it, but once this bill is
passed, they will not have the right to raise it.
Ms. PELOSI. The same thing for any advances in technology; for
example, what is happening with DNA, et cetera, that kind of evidence
and that opportunity would not be available to the person convicted?
Mr. WATT of North Carolina. Under current law they would have the
right to do it, but under this bill they would not have the right to
raise it.
Ms. PELOSI. Mr. Chairman, I ask the gentleman from Florida [Mr.
McCollum], would he answer those same questions? If this bill passes
would a person not be able to use DNA evidence or new evidence, new
technology?
Mr. McCOLLUM. Mr. Chairman, will the gentlewoman yield?
Ms. PELOSI. I yield to the gentleman from Florida.
Mr. McCOLLUM. Of course he could if it was clear and convincing
evidence, he could. That is the standard in our bill, if he could
present them with the situation where it would be unquestionable
innocent status; if that were the case.
Mr. WATT of North Carolina. If the gentlewoman would yield, before he
can ever get to the clear and convincing standard, he has to get into
court by raising some constitutional claim, different from innocence.
So the gentleman from Florida [Mr. McCollum] is right, that would be
the ultimate standard, but it would not even be able to get into the
court.
The CHAIRMAN. The time of the gentlewoman from California [Ms.
Pelosi] has expired.
(At the request of Mr. McCollum, and by unanimous consent, Ms. Pelosi
was allowed to proceed for 2 additional minutes.)
Mr. McCOLLUM. Mr. Chairman, will the gentlewoman yield?
Ms. PELOSI. I do have something else I want to say because I contend
what the gentleman is putting forth here today in this rush for 100
days, in your 100-day agenda, is trampling on over 200 years of the
rule of law in our country, protecting the rights of the innocent, and
people can get up here all day and talk about anecdotes that are
devastating and terrible and we all have those stories to tell about
people who are guilty, and who abuse the process.
This is not what the Watt amendment is about. The Watt amendment is
about protecting the innocent, and the overwhelming number of people in
our country I believe want to protect the innocent.
Mr. McCOLLUM. Mr. Chairman, would the gentlewoman yield?
Ms. PELOSI. I yield to the gentleman from Florida.
Mr. McCOLLUM. Mr. Chairman, I just want to make the point that the
gentleman from North Carolina is incorrect that we have to have a
constitutional infirmity. You have to have clear and convincing
evidence and be able to show ultimately that you have an unquestionable
innocence and you can get in. You do not have to have both. It is one
or the other; it is not both.
It is basically current law that we have established in here with
respect to what we have done in this bill, and the gentleman wants to
retreat a little bit from it. We have changed one standard to clear and
convincing. There is doubt whether it would be preponderance or clear
and convincing. So, we have lowered the standard a little. The
gentleman lowers the standard on present law considerably on how you
get in on the innocent.
Mr. WATT of North Carolina. Mr. Chairman, would the gentlewoman
yield?
Ms. PELOSI. I am pleased to yield to the gentleman from North
Carolina.
Mr. WATT of North Carolina. I want to be clear on exactly what the
gentleman from Florida [Mr. McCollum] said. The standard is convincing
evidence, he says.
Mr. McCOLLUM. Clear and convincing.
Mr. WATT of North Carolina. That is the ultimate standard we are
talking about; that is not the standard for review. The standard for
review, based on the Supreme Court's recent ruling, is the standard
that I have picked up in my amendment.
Ms. PELOSI. I thank the gentleman from North Carolina for his
leadership on this issue.
I urge my colleagues to support the Watt amendment.
The CHAIRMAN. The Chair wishes to inform Members that all remarks are
to be addressed to the Chair and not to anyone outside of the Chamber.
Mr. HYDE. Mr. Chairman, I move to strike the requisite number of
words, and I rise in opposition to the Watt amendment.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Chairman, the problem with the Watt amendment is it
vitiates the very purpose of habeas corpus reform. It makes an already
endless, interminable process increasingly subject to more and more
delay.
The fair administration of justice means these matters have to
finally come to closure.
John Wayne Gacy spent 14 years appealing, appealing, appealing from
the time of his conviction of murdering 27 young men until the time he
was executed. These matters have to be brought to closure, not as a
matter of statistics, but as a matter of justice to the families of the
victims and as a matter of justice to the law itself.
{time} 1730
One of the weaknesses of the Watt amendment is there is no
requirement of showing due diligence in discovering this new evidence.
If one sleeps on his or her rights and years go by and then
[[Page H1418]] something turns up that probably would result, probably,
in an acquittal, it seems to me that does not rise to the level of the
deprivation of the constitutional right such as would make the
reopening of these trials appropriate. This goes on endlessly,
endlessly, endlessly; and so without a showing of due diligence that
you looked for all the evidence you could and there was a reason why
you could not find this--which is not a requirement in this amendment--
and probably would be acquitted by virtue of that evidence, rather than
unquestionably just does not seem just.
We have Supreme Court cases, Herrera versus Collins, and Schlup
versus Delo, both capital cases, that stand for the principle that if
you do not show a constitutional error then you have to show that you
would unquestionably be released. But, bring these habeas corpus
matters to closure. Have the trial as good as you can and then exercise
due diligence.
If there is evidence that was not presented at the trial but just
across 15 years later and say here is new evidence that probably would
result, means there is never any finality to these matters and that in
and of itself is unjust.
Mr. SCHUMER. Mr. Chairman, will the gentleman yield?
Mr. HYDE. I yield to my friend, the gentleman from New York.
Mr. SCHUMER. I thank the gentleman for yielding. I understand his
frustration with the law, and the Gacy case has been cited by both the
gentleman from Ohio and the gentleman from Illinois, the chairman.
And I agree with them on the Gacy case, and I agree with them that
there have been too many appeals. What I would simply say to the
gentleman is the law that you are proposing, other parts of it that
deal with the 1 year and the timeliness of appeal and all of these
other things deal with cases like Gacy.
Whether the Watt amendment were accepted or not, the Gacy case could
not exist if the bill, H.R. 729, were to pass, and, in fact, as I
understand it, and the gentleman can correct me, Gacy was from his
State and he probably has more familiarity with the specifics of the
case than I do, new evidence showing innocence was never one of the
reasons that Gacy was able to extend the appeal after appeal after
appeal.
Mr. HYDE. My recollection is he had 52 separate appeals.
Mr. SCHUMER. None were on the issue of the Watt amendment. All were
on other issues.
Mr. HYDE. Is my figure too high? A staff person of the gentleman from
North Carolina [Mr. Watt] was shaking her head.
Mr. WATT of North Carolina. If the gentleman will yield, I was not
responding to that. I do not know how many appeals he had. None of them
were based on a claim of innocence. That is the point the gentleman
from New York [Mr. Schumer] is making, and if a person is probably
innocent, which is, I mean, that is what your words are, probably
innocent, I submit to you he should be given a shot, and that is all
this amendment says.
Mr. HYDE. I submit to you he should exercise diligence in finding
this new evidence, and absent a showing of due diligence, it is an
imposition on the whole judicial system and on justice itself because
there is merit, real merit, in bringing these matters to finality and
to closure. They would endlessly be open under the gentleman's
amendment.
Mr. SCHUMER. Mr. Chairman, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from New York.
Mr. SCHUMER. I agree with that. Maybe the gentleman from North
Carolina [Mr. Watt] does not. I do. Many do, even on this side of the
aisle.
But that is not the issue of the Watt amendment, and what I would say
to the gentleman, in all due respect, is the Gacy case and the endless
appeals are not what Watt is trying to do. If somebody knew that they
had new evidence relating to innocence----
The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has
expired.
(At the request of Mr. Schumer and by unanimous consent, Mr. Hyde was
allowed to proceed for 2 additional minutes.)
Mr. SCHUMER. If the gentleman will continue to yield to me, I would
say why, in God's name, would someone who had been convicted and was
waiting on death row delay bringing up the fact that there was new
evidence that they were innocent. There have been too many appeals. I
do not dispute that. But I would say that there are certain exceptions.
I make one other point to the gentleman, the Schlup case was decided
January 23, 1995, after the contract was issued, and the election, and
I do not mean this as political, but I mean, after all of this
happened.
The case, in my judgment, reading the case, requires a standard of
probable, probably resulting in conviction of one who is innocent.
To quote on page 28 of the case, ``the Carrier Standard,'' which is
what the court decided should be used not the more stringent Sawyer
standard, ``Requires the habeas petitioner to show that `a
constitutional violation has probably resulted in the conviction of one
who is actually innocent.'''
On page 24, the court states that, ``This is, indeed, a
constitutional standard.''
So in addition to the practical arguments I would make to the
gentleman, who is a fine constitutional lawyer, that the Schlup case,
in a sense our new evidence, would render this part of H.R. 729
unconstitutional, and the Watt standard, by simply just reechoing what
is existing law as newly done by the Schlup case, does not do damage to
the gentleman's general claim that, A, there have been too many
appeals, and, B, that we ought limit it.
Mr. HYDE. Let me just say this: I wish you would help us bring these
cases to closure. When you have had a trial, a trial that is error
free, when you have been convicted beyond all reasonable doubt, and
then years later evidence turns up and you are not required to even
show that you diligently did everything you could to get whatever
evidence you could, it seems to me you are opening the door for never
ending these appeals.
The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has
again expired.
(At the request of Mr. Ackerman and by unanimous consent, Mr. Hyde
was allowed to proceed for 2 additional minutes.)
Mr. FOGLIETTA. Mr. Chairman, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from Pennsylvania.
Mr. FOGLIETTA. I think our objective here in passing this legislation
is not to expeditiously execute people but to execute only those that
we are sure are guilty of the capital crime.
Mr. HYDE. How many years does it take? How many years do we wait to
find out?
Mr. FOGLIETTA. I do not care how long it takes. We should not be
executing innocent people because we want to do it expeditiously.
Mr. HYDE. Do you support the death penalty?
Mr. FOGIETTA. Yes, I do, in certain cases.
Let me ask you, is it correct, I understand your position is that if
a person is, or it is determined that a person who is facing execution
has cause to believe that he or she is probably innocent that that
person should not have an opportunity to present that evidence in
court.
Mr. HYDE. I am saying the rule ought to require you to have exercised
due diligence to get all of the evidence that leads to your innocence.
That is my point.
Mr. FOGLIETTA. Suppose you have not exercised due diligence but you
are probably; probably an innocent
person should go to jail, should be executed because they did not
execute due diligence?
Mr. HYDE. I do not want any innocent person to go to jail, but it
seems to me----
Mr. FOGLIETTA. How about a probably innocent person?
Mr. HYDE.. The rule of right reason would say at some point we have
to have finality.
Mr. FOGLIETTA. Even if the person is probably innocent?
Mr. HYDE. I do not think it is fair to impose on the system and the
families of the victims to have an open-ended appeals process, and that
is what the Watt amendment does.
Mr. ACKERMAN. Mr. Chairman, will the gentleman yield?
[[Page H1419]] Mr. HYDE. I yield to the gentleman from New York.
The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has
again expired.
(At the request of Mr. Ackerman and by unanimous consent, Mr. Hyde
was allowed to proceed for 2 additional minutes.)
Mr. ACKERMAN. The gentleman from Illinois is no doubt among the
fairest Members that I have ever seen in this House, and certainly one
of the most compassionate. It seems to me we are talking sort of at
different levels over and each other on different issues here.
Whether one is for or against the death penalty, I think most people
would agree that this is not a debate on whether or not there are
endless appeals and there should be limits for the kinds of the appeals
that are going on and things of that nature. I think you could find
some general agreement on all sides here.
The question really is this: Supposing somebody has been found guilty
and is on death row, who has been convicted and suddenly some evidence
does appear that did not exist; there are all sorts of scientific
things now, and suppose you and I and somebody with the wisdom of
Solomon, maybe even Jerry Solomon----
Mr. HYDE. How many years would you permit to elapse between the trial
and surfacing of this newly discovered evidence?
Mr. ACKERMAN. If the person is still alive, living, breathing,
innocent human being and you would look at the evidence, and you and I
and a thousand judges unanimously would say, ``My God, look what
happened here, this man is innocent,'' and he was condemned to death.
{time} 1740
And he was condemned to death. How would you propose that he get back
before the court? That is really the question. The gentleman put
closure to nothing but executing an innocent person.
Mr. HYDE. I yield to the gentleman from Florida.
Mr. McCOLLUM. I thank the gentleman from Illinois for yielding to me.
Mr. Chairman, I think we need to come up with some clear explanation;
that is, here is this section. It says, first of all, that on the first
appeal, that you take under habeas corpus, you do not have to have the
probable cause certificate that the gentleman from North Carolina wants
to amend. You do not have to have it at all the first time. So, if have
a guilt or innocence question the first time you go to Federal court
after you finish your State lines of appeal or other lines and you
petition the first time, guilt or innocence, you do not have to have--
guilt or innocence--you do not have to have prerequisites that are in
the bill. In addition to that----
The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has
expired.
(On request of Mr. McCollum and by unanimous consent, Mr. Hyde was
allowed to proceed for 2 additional minutes.)
Mr. HYDE. I yield further to the gentleman from Florida.
Mr. McCOLLUM. I thank the gentleman for yielding further.
Mr. Chairman, it is only when you get into the successive petitions
after you have already had regular appeals and you have already had
your first-time shot at this on guilt or innocence or anything else
that the issue arises that the gentleman is making all the noise about.
And in that situation, for the second, third, fourth, fifth, sixth,
seventh, eighth, ninth, tenth appeal, whatever it is, there are three
things you have to show. You have to show the basis for the stay and
request for relief is not a claim, not previously presented in State or
Federal courts. That would certainly qualify if you have new evidence.
Or you have to show 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 prosecution review.
That is where that point comes in. Reasonable diligence on the
second, third, fourth, fifth petitions. And there is a third condition,
that facts underlying this claim of new facts, new evidence, would be
sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
petitioner guilty of the underlying offense.
The problem here is real clear. We want to stop these successive
petitions. If you go through it on newly found evidence for second,
third, fourth, or fifth, you have to go through what I just described.
It seems eminently fair. It involves clear and convincing evidence, et
cetera. The first time around, you do not have the same standard. And
that is not what the gentleman is amending.
Mr. HYDE. Reclaiming my time, in the Herrera case, the accused's
relative 6 years later came up with an affidavit that said, ``He was
with me that night.'' So that was supposed to reopen the case, and that
would fit in with Mr. Watt's amendment. The court said, ``No, that is
not enough.''
The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has
again expired.
(On request of Mr. Ackerman and by unanimous consent, Mr. Hyde was
permitted to proceed for 2 additional minutes.)
Mr. HYDE. I will yield to the gentleman from New York.
Mr. ACKERMAN. Mr. Chairman, we are trying to work together to remedy
some inequities in the system. I think that the frustration of the
American people, as has been expressed here, goes to the point that so
many technicalities are raised wherein guilty people are extended
indefinitely on death row. And that has caused a major frustration,
which many of us can understand; that is, guilty people who are finding
technicalities.
What is happening here, in trying to remedy that, we have an
amendment that goes to a court issue. What happens when it is an
innocent person? What we are doing here is not addressing that problem.
Mr. HYDE. The gentleman from Ohio will address that problem.
Mr. ACKERMAN. The question, if I can phrase it, is: Why are we
looking to put technicalities in the way of an innocent person coming
before the court? That is just as wrong. That is even worse because you
are taking away a life.
Mr. HYDE. You would think it is the exclusionary rule, with all these
technicalities getting in the way.
Mr. Chairman, I yield to the gentleman from Ohio.
Mr. CHABOT. Mr. Chairman, one point--and many points have been made
on both sides--one point that has not been made is that every State has
a Governor and the Governors have the final ability to commute a
sentence. So if, in fact, one is arguing that at some point there is
clearly an innocent person, the Governor can always commute the
sentence.
I would also submit that in many instances these folks that are
dragging out this death penalty process kill other inmates, kill
guards, and ultimately end up on the streets, sometimes, and kill
innocent people.
Mr. ACKERMAN. If the gentleman would make a leap of faith and say
that we have one innocent person, how does that one innocent person
present his case that you and I might agree and everybody might agree
is innocent? You are going to kill somebody because we are dealing with
other cases that say this is not expedient now----
The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has
again expired.
Mrs. MINK of Hawaii. Mr. Chairman, I move to strike the requisite
number of words.
(Mrs. MINK of Hawaii asked and was given permission to revise and
extend her remarks.)
Mrs. MINK of Hawaii. Mr. Chairman, this amendment which has been
offered expresses the fundamental belief that people in this country
have about our courts and the judicial system. And that goes to the
belief that somehow the system of justice will protect those who are
innocent. And what we are doing here today is trying to insert
[[Page H1420]] into legislation which has been proposed that
fundamental principle of making sure that no matter how we tamper with
the law, no matter what restrictions we put on the right of habeas
corpus, no matter what limits we put to it, that if the defendant has
newly found evidence that goes to prove his innocence, he ought to have
an opportunity to raise that issue before the court and to take it back
for a trial. That is all we are saying.
This is not a debate about the death penalty. This is not a debate
about whether or not we ought to have greater restrictions on the use
of the writ of habeas corpus. This is not even about a question of
abuse.
This admits all of the necessities that have been found in the
majority's legislation and says, ``Yes, but wait a minute, if we put
all of these new restrictions into the law, what is going to happen to
an individual who might be found innocent because of newly found
evidence?''
We are not saying that these defendants have a right to try the case
all over again de novo. We are just saying that if there is newly found
credible evidence, it gives the courts a point to decide whether this
issue is genuine or not genuine, is a technicality or contrived. And
that is why the importance of the word ``credible'' evidence, newly
discovered.
Certainly, every one of us has a firm understanding of what the court
system is, what the guarantees of due process are in this country and
what the symbol of justice is for every American. And that is, if you
are innocent, no law, no contrived limitation, no restrictions put on
by the Congress is going to take that life if there is credible
evidence that that individual is innocent.
So I am saying to the majority that has put forth this bill, accept
this amendment. It does no harm to the basic tenets that you are trying
to impose for all of these other criminals that you do not want to have
these endless appeals on technicality.
Innocence is not a technicality. It is basic to our understanding of
what the courts are supposed to protect.
Individuals, perhaps, could not come before the courts of law in a
timely way. Due diligence for a defendant is not the same as due
diligence for the prosecutor or for the State. It is extremely
difficult to come up with evidence to prove your innocence. But when
they do, they ought to have their day in court.
So I urge this House to accept the Watt amendment and perfect it so
that we do not have to go back and say we passed a law today in the
Congress that does not protect the rights of the innocent in this
country.
Mr. Chairman, I rise in opposition to habeas corpus reform in the
Effective Death Penalty Act, H.R. 729, which would severely diminish
the constitutional rights of State prisoners. Habeas corpus is the only
means by which State prisoners who believe they have been wrongly or
unconstitutionally convicted may appeal to the Federal courts to review
their convictions. Particularly in cases where the death penalty is
rendered, it is unquestionable that full opportunity for judicial
review must be conferred upon the accused.
I am particularly concerned that H.R. 729 would strictly limit the
time period during which habeas corpus petitions could be filed, and
confines each individual to a single appeal. With the intricacies and
numerous requirements in capital cases, 1 year is an inadequate period
of time for recruitment of attorneys willing to handle Federal death
penalty cases and subsequent preparation and filing of habeas
petitions. To additionally limit those convicted to a single appeal
unrightfully circumscribes the fairness of the judicial process in
these cases. I agree that valuable time in the courts must not be
occupied by unreasonably persistent cases, but discretion should remain
with the courts with regard to availability of habeas corpus appeals.
The reasoning behind these unnecessary provisions is that prisoners
on death row allegedly delay the filing of habeas petitions and file
petitions that are frivolous. However, facts from the Judiciary
Committee show that from 1976 to 1991, Federal habeas courts granted
relief in more than 40 percent of death penalty cases on the basis of
serious constitutional error. These decisions reconfirm our essential
constitutional rights.
If the problem is that habeas appeals hamper the business of Federal
courts, why does H.R. 729 fund the use of competent counsel in
postconviction proceedings and not actual death penalty trials? Federal
funding to States for counsel in death penalty cases should compel
States to appoint attorneys proficient and experienced in death penalty
cases. To require quality representation only after the death penalty
has been rendered presents a grave inequity that harms the judicial
process.
I am also concerned that H.R. 729 narrows the claims that a Federal
court can consider in death penalty cases to claims previously raised
and rejected in State courts, even if State decisions were incorrect.
Eliminating Federal review of such claims would result in differential
enforcement of constitutional rights from State to State, potentially
producing 50 different explanations of Federal constitutional
provisions. The American Bar Association has lodged its ``vigorous
opposition'' to this provision which it predicts will ``insulate
virtually all State criminal proceedings from Federal review.'' It is
paramount that Federal court access to meaningful review in death
penalty cases be preserved.
H.R. 729 will greatly compromise constitutional rights of prisoners,
judicial fairness, and jurisdiction of Federal courts in serious death
penalty cases. This bill would irresponsibly speed up habeas corpus
appeals without ensuring that those on death row have full access to
judicial review, safeguards against wrongful executions, and access to
qualified counsel. I strongly urge my colleagues to cast a vote in
opposition to H.R. 729.
Mr. SCHUMER. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I just would like to make a couple of points on this
debate, just to take up where we left off before.
I think, again, just to reiterate: The issue in the Watt amendment is
not endless appeals. There are other parts of H.R. 729, a bill I
supported when we voted it out of subcommittee, that deal with the
endless appeals.
{time} 1750
In my judgment I would concede the point. I think it is right that
defense lawyers have used appeal, after appeal, after appeal. They are
morally opposed to capital punishment, and so they feel they should use
every means to prevent it from happening, something I disagree with,
and that is why I support 729.
But the issue the gentleman from North Carolina brings up is not
related to that. It is not related to endless appeals. It deals with
the rare instance where there is new evidence, and not just any new
evidence, not just something out of a lawyer's head, but something that
on initial review by a judge would probably change the result of the
trial. Therefore, the new evidence cannot be relatively immaterial, nor
can it be not credible. It has to be credible evidence that is material
so that the jurors would have said, ``When the judge looks at the new
evidence, there would be a reversal.'' That is a pretty high standard.
In fact, and this is the point I would like to make to the gentleman
from Florida, the gentleman from Ohio and the others, it is such a
relatively tough standard that a recent case, the Schlup case, said
that that was the standard based on not any statute, but based on the
Constitution. The standard that the gentleman from North Carolina has
wisely incorporated in his amendment is the exact standard found in the
Carrier case as cited in Schlup. I ask, ``Do you know what that means,
ladies and gentlemen? It means we could reject the Watt amendment, and
it would still be required constitutionally.''
This is not an issue up for legislative discretion. This is an issue
in the Constitution.
I say to my colleagues, ``I don't blame the other side for not
putting the Watt amendment in their bill. Their bill was first drafted
before this case, but, fellows and ladies, show a little flexibility.
The Supreme Court has made a ruling. You shouldn't be fighting a ruling
that is going to exist whether you like it or not, and I don't think,
as somebody who believes that there have been too many appeals, I don't
think it's going to do damage to that. But don't fight it for the sake
of fighting it.''
There is a case. There is something that was issued only--today is
February 8? It was 3 weeks ago, on January 23, 1995, an opinion by
Judge Stevens joined in by the majority of the court that says, quote,
the Carrier standard requires the habeas petition to show that, quote,
a constitutional violation has probably resulted in the conviction of
one who is actually innocent.
[[Page H1421]]
The point made by the gentlewoman from Hawaii [Mrs. Mink] and my
colleague, the gentleman from New York [Mr. Ackerman], and others is
this: If the new evidence is significant enough that it would probably
change the jury.
I say to my colleagues, ``You can't make this stuff up. It's got to
be real. Then why not?''
Those of us who believe in capital punishment; I am among them; were
criticized last year for putting in a bill that had 60 new capital
punishments. Those who believe in capital punishment want to make sure
that it is done fairly and equitably, want to make sure that, if there
is overwhelming new evidence, say the DNA evidence that the gentleman
talks about, so it is almost crystal clear that the wrong person is on
death row; it does not happen that often, but it does happen; is not
executed. Those of us who believe that the ultimate sanction is
sometimes called for should want to make sure that, when there is
credible new evidence that would in a judge's mind, and most of the
judges are appointees of Ronald Reagan and George Bush, in that judge's
mind mean that the jury would probably, not possibly, but probably,
overturn the case, would support this simple amendment. It would
eliminate most of the endless appeals. The amendment would not
eliminate most of the endless appeals; you know that, and I know that;
it would simply provide a small, tightly constructed and
constitutionally required window when there is new evidence.
Mr. CUNNINGHAM. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I just heard my good friend, the gentleman from New
York [Mr. Schumer] talk about that they do not make it up. In
California, we had a judge named Rose Bird who was opposed to the death
penalty and found every single thing that she could to stop the death
penalty, even of those that were guilty.
I have also heard the gentleman from Florida [Mr. McCollum] state
that there are processes which, if they find new evidence, that they
can bring this forward. I have heard him state it on the floor, and I
also heard that the have a Governor that can take a look at the case,
and so there are several mechanisms that enable, if someone is
innocent, either new evidence, or the Governor, or due process, that
that can be brought forward.
And I agree. We did have the Alton Harris case of a person who was
guilty, and I appreciate it because of the sympathy, because it does
drag out a process where the guy admitted, yet we kept on going, and I
understand that is not what we are talking about.
But this gentleman feels that we do have a process in which someone
that is innocent could bring that new evidence forward and that, if we
allow the gentleman's amendment, we have got a hundred Rose Birds out
there that will oppose any death penalty.
Mr. SCHUMER. Mr. Chairman, will the gentleman yield?
Mr. CUNNINGHAM. I yield to the gentleman from New York.
Mr. SCHUMER. Mr. Chairman, I just make two quick points.
First, if there is a judge who is opposed to the death penalty and
refuses to implement the law of the land, we should not eliminate any
change that an innocent person has a right to some appeal. We should
get rid of the judge, and, as I understand it, that is just what the
people in California did in the case of the judge the gentleman is
talking about. That was the appropriate remedy. Because there are some
judges who either go too far one way or the other, Mr. Chairman, we
should not change the law for them. We should change them.
The second point I will make to the gentleman is this one:
If there is no Watt amendment, and if 729 passes, there will be no
route after the first appeal for evidence of innocence to enter into
the case.
Mr. CUNNINGHAM. Reclaiming my time, Mr. Chairman, I would like to
have the gentleman from Florida [Mr. McCollum] explain again. As I
understand it, there is that route.
Mr. SCHUMER. Not after the first appeal.
Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
Mr. CUNNINGHAM. I yield to the gentleman from Florida.
Mr. McCOLLUM. Mr. Chairman, there is a way after the first appeal and
successive petition. I read it earlier in the Record. I am not going to
reread the whole thing again, but:
If you can demonstrate there is newly discovered evidence
which you couldn't have easily and reasonably discovered the
first time around, and if it's clear and convincing evidence
that if it goes before a court would result in innocence,
then you can go produce that.
Mr. Chairman, it is clearly written into our bill.
What we say here is 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 the first
time around, and the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional
error no reasonable factfinder would have found the petitioner guilty
of the underlying offense.
Mr. CUNNINGHAM. I have a question for the gentleman from Florida, and
let me ask a question.
If, say, for example, DNA results came up of just recent technology
that proved that the individual was innocent? Would they have a right
to retrial or to be----
Mr. McCOLLUM. Mr. Chairman, would the gentleman yield?
Mr. CUNNINGHAM. I yield to the gentleman from Florida.
Mr. McCOLLUM. Certainly they would, if it is clear and convincing
evidence.
Mr. CUNNINGHAM. What happens if someone comes up and admits to the
crime? Would that person also have the same rights?
Mr. McCOLLUM. If that was clear and convincing evidence, it was very
clear that would have found the petitioner, would not have found the
petitioner, guilty the first time around.
Mr. CUNNINGHAM. So there is surely a way in which, if a person is
innocent and evidence appears, that person has many motives to----
Mr. McCOLLUM. Absolutely and unquestionably so, and in addition to
that I might add to the gentleman that a Governor of a State could
always commute. That power exists.
Mr. SCHUMER. Mr. Chairman, will the gentleman yield?
Mr. CUNNINGHAM. I yield to the gentleman from New York.
Mr. SCHUMER. We are back where we were in the discussion previously,
I believe, between the gentleman from North Carolina and the gentleman
from Florida.
I say to my colleagues, It is true, as the gentleman from Florida
states, that if you were already in the door, he had appealed for some
other reason that was recognized, the clear and convincing standard
would be allowed.
But I would ask the gentleman to pose the question this way:
If we found the petitioner had undergone the first appeal, had been
found guilty, and let us say a year later, because under the new law it
would not be 10 years or 8 years; a year later they found the DNA
evidence, but there is no route----
The CHAIRMAN. The time of the gentleman from California [Mr.
Cunningham] has expired.
(On request of Mr. Schumer and by unanimous consent, Mr. Cunningham
was allowed to proceed for 1 additional minute.)
Mr. SCHUMER. Mr. Chairman, will the gentleman yield?
Mr. CUNNINGHAM. I yield to the gentleman from New York.
{time} 1800
Mr. CUNNINGHAM. Mr. Chairman, I yield to the gentleman from New York.
Mr. SCHUMER. Mr. Chairman, if there was no other way for this person
to get back into that court, then it is my understanding that the
capital sentence would have to be taken, even with the DNA evidence,
even with the clear and convincing evidence, for the very reason that
the standard for review which the gentleman from North Carolina [Mr.
Watt] puts in his amendment is not in H.R. 729 or existing law.
So there would be no way, I must sincerely disagree with my friend
from Florida, there would be cases where this new evidence would occur.
Mr. CUNNINGHAM. Say Elton Harris, who admitted to his guilt after 14
years and said that he admitted he was
[[Page H1422]] guilty, and all of a sudden it proved that he was not
guilty. You are telling me there is no way that if we had DNA evidence
or if someone admitted to the guilt, that he would not be protected?
Mr. SCHUMER. I am not familiar with the details of the Harris case.
But, yes, I would say to the gentleman that if in that case Harris had
no other way to beg back into court, then, yes.
Ms. NORTON. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise to respond to a number of issues that have been
raised in this debate. First of all, the Watt amendment does not talk
about innocence, but uses a word which is much stricter in the law, and
that is that the matter would probably have resulted in an acquittal.
That is a very high standard. We are not using the more amorphous word
``innocent'' here.
Moreover, you have just rejected the Schumer amendment. More than
half of all attorneys handling capital trials have had no previous
death penalty experience. So the probability of finding newly
discovered evidence is great, and we are not even willing to say that a
man or woman standing on trial for his or her life should have
competent counsel.
At the very least then we ought to say if incompetent counsel has not
found evidence, newly discovered evidence can be brought forward.
There was discussion of due diligence here. It may be in the bill,
but the fact is it is a judge-made rule in any case, and probably the
court would find, based on the way courts have looked at these matters
in the past, that if due diligence had not been exercised, the court
would be more likely to find this was not newly discovered evidence at
all.
We are dealing with a situation where 40 percent of death penalty
cases heard in the Federal courts have been granted relief because of
significant constitutional error. I submit to you, Mr. Chairman, judges
have been sitting all these years, where they detest these cases and
would love not to find relief, and have been easily finding relief.
We have a problem here. The problem we have is that these cases have
been tried, often by people who are not competent to try them. At the
very least you would think if newly discovered evidence overlooked by
such counsel could be found, that the person would get a second
petition.
The 40 percent of the cases I speak of where significant
constitutional error was found have been found in the last few years,
since 1976. And we are talking about judges appointed by the two
previous Presidents.
We are talking in the last 10 years about petitions representing only
4 percent of all civil filings. Whatever is the problem in the Federal
courts, it is not presented by habeas corpus petitions. And while I can
understand the need to reduce the number, surely given this new rule
for truly exceptional cases, for cases that can find their way through
this narrow hole where the person probably would have been acquitted--
and we are not talking about innocence, we are talking about acquittal,
and that has a fixed meaning in the law--surely, that person should be
able to get into court.
This does not open a large hole. I am left to ask, what are the
Federal courts for if not for looking at cases where newly discovered
evidence means that the person would probably have been acquitted?
As to Governors, I say to you, this is not a country where Governors
or Members of Congress ought to judge whether constitutional rights
have been violated. So it is certainly not the appropriate remedy to
move from the courts to the Governor, who will look to the polls and
decide whether he ought to exercise a remedy that is almost never
exercised. That is no remedy. That is not a remedy at law; that is a
political remedy. There should not be a political remedy for a
constitutional right.
This is the death penalty we are talking about. This is the great
habeas corpus remedy we are talking about. The bill more than protects
the rights of the victims and their families. We create here the kind
of right that I believe the average American would want us to protect.
Mr. GUTIERREZ. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, my colleague, the gentleman from North Carolina [Mr.
Watt], has offered a reasonable and sensible amendment to this very
unreasonable bill today, and I congratulate my friend and colleague for
his spirited defense of the Constitution.
Standing up for the Constitution puts you in a minority in this body
these days. Standing up for the ideas of our forefathers is considered
a radical idea in this body these days.
Looking to the sacred document that has guided our ideas for what is
right and wrong for more than 200 years is apparently no longer part of
our contract with the people anymore.
So I thank the gentleman from North Carolina [Mr. Watt], for this
important amendment, and for reminding us that the Constitution still
matters.
This amendment simply states that prisoners sentenced to death will
be able to file a second habeas petition if newly discovered evidence
shows that the person is likely to be found innocent.
Let me repeat, because this should sound so logical to everyone that
you might think that I have somehow misstated the Watt amendment: newly
discovered evidence that shows that a person is likely to be innocent.
Now, I understand the desire to get tough on crime and criminals. I
share the desire to crack down on crime. I believe we should get tough
on criminals. I was proud to support a crime bill during the last
session that moved our Nation toward that goal. It made it harder to
get military-style weapons. It increased funding for prisons. It
increased preventive measures. It was an important start, Mr. Chairman.
We should continue to build on that start. I think we should do more
to make criminals pay for their crimes. I think we should do more to
protect our families from criminals.
That is the real purpose, or should be, of anticrime legislation. Yet
my colleagues have lost sight of the true goal of anticrime
legislation. The goal is to protect our families, Mr. Chairman, to
protect our homes, to protect our neighborhoods. I challenge any of my
colleagues who support this measure to demonstrate to me how this bill
helps us reach any of those goals I just stated.
How have we reached a point in our anticrime debate that we have lost
interest in the Constitution? Have we reached a point in our anticrime
debate that newly discovered, clear, credible evidence of innocence
does not win you the opportunity in America, just the opportunity for a
new trial, in this, the greatest country in the world?
{time} 1810
How does denying the possibility, the mere possibility of a new trial
for a person who may be innocent, Mr. Chairman, help us make our
families and streets safer? How does it make our families feel safer in
their homes? How does it make our kids feel safer on the way to school?
We all know the answer. Denying habeas when new evidence suggests
innocence does not protect our communities. We all know it. It merely
gives us a sound bite for the news this evening. It gives us a headline
to cheer about tomorrow morning. It merely allows us to pat ourselves
on the back and convince ourselves that we are doing something to
protect the neighborhoods that we are all so concerned about.
But we are not, Mr. Chairman. This is not, and I repeat, this is not
about the right of criminals. This is about the right of all of us,
including the Members in this body, all of us in this room, all of our
families, all of the people that we represent, their right, their
fundamental right, their constitutional right as Americans not to be
punished for a crime that they did not commit. Their right, our right
to have a chance, a fair chance to prove our
innocence.
Justice and fairness can be frustrating at times. Sometimes justice
and fairness takes a little more time than we want it to take. But what
separates us from nations that value vengeance over justice, revenge
over fairness? It is this, that we have a way of doing things
differently in this country. That is what this amendment is all about.
Mr. FOX of Pennsylvania. Mr. Chairman, I move to strike the requisite
number of words.
Mr. Chairman, the call has come out as to how we make the streets
safer in the United States. We make the streets
[[Page H1423]] safer by making sure we have swift justice with
certainty when it comes to capital offenses. The U.S. citizens are
asking who protects the victims from murder? The deceased victims
cannot speak but their families can. And they have told us in great
numbers that they want to make sure there is certainty that sentences,
especially where dealing with a capital offense like murder.
As a former Montgomery County assistant district attorney in
Pennsylvania, I can tell my colleagues when I worked on the crime
victims bill of rights in Pennsylvania, the people of this country and
of my commonwealth want to make sure there is certainty when it comes
to the offense of murder.
Habeas corpus relief is a concept whose time has arrived. The endless
appeals are inappropriate. The proposed amendment would drastically
expand the possibilities for death row inmates to reopen cases where
there was no trial that had any kind of constitutional error.
I urge my colleagues to adopt this habeas corpus reform. It is a step
in the right direction to protect crime victims.
Mr. CONYERS. Mr. Chairman, there is a major omission in the bill that
goes to the heart of due process and fundamental fairness: An innocent
man should never be executed.
The McCollum bill gives a criminal defendant ``one bite at the
apple'' but would not permit any appeals after the 6-month deadline has
passed except in the difficult-to-imagine situation where there is
clear and convincing evidence of innocence and no reasonable juror
would find the petitioner guilty.
The amendment that we are considering will substitute preponderance
of the evidence instead of the more restrictive standard in the
McCollum bill.
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
judge and dispose the claim rather than a standard of whether to really
hear the claims in the first place.
If this is intentional, then it is a sly smokescreen to cut off all
claims based on innocence. I would hope that is not the case and that
the majority is willing to support this amendment.
Claims of innocence in habeas proceedings are not part of a far-
fetched scenario that can never happen in this day and age. The truth
is this is all too common. In fact, the Supreme Court decided a case
just this January 23, 1995, that shows how easily this can occur.
The facts in Schlup versus Delo are that a prison inmate accused of
murder argued that a videotape and interviews in the possession of
prosecutors showed he could not have committed the murder but in the
information was not revealed to him until 6 years after his conviction.
The Court ruled that Mr. Schlup should be allowed to raise his claims
of innocence.
There is case after shocking case of similar horror stories:
James Dean Walker had served 20 years in prison when one of his
codefendants confessed that he had pulled the trigger that killed a
Little Rock police officer. Walker's gun had not been fired but he had
been convicted on the testimony of a witness who said she had seen him
shoot the officer. The eighth circuit, which had denied his first
habeas petition 16 years earlier, agreed in 1985 that he should be
freed.
Rubin ``Hurricane'' Carter was convicted of murder in 1967 and served
in prison for 18 years even though the witnesses whose identification
led to their convictions later recanted their identifications. The
conviction was reversed after a Federal judge ordered prosecutors to
turn over evidence, including failed polygraph tests, which showed the
witnesses were lying. Carter was set free.
Robert Henry McDowell was almost executed for a crime that the victim
initially told police was committed by a white man. McDowell was black.
The North Carolina supreme court reversed a trial court order granting
him a new trial but the fourth circuit ordered him to be released after
the police reports were made public.
False identifications, witnesses recanting, death-bed confessions,
these are all too familiar to those who defend death row inmates.
Access to Federal courts is vital.
This 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. Support the amendment that prevents executing an
innocent person.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from North Carolina [Mr. Watt].
The question was taken; and the Chairman announced that the ayes
appeared to have it.
recorded vote
Mr. McCOLLUM. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 151,
noes 280, not voting 3, as follows:
[Roll No. 105]
AYES--151
Abercrombie
Ackerman
Baldacci
Barrett (WI)
Becerra
Beilenson
Bentsen
Berman
Bishop
Bonior
Boucher
Brown (CA)
Brown (FL)
Brown (OH)
Bryant (TX)
Clay
Clayton
Clement
Clyburn
Coleman
Collins (IL)
Collins (MI)
Conyers
Coyne
de la Garza
DeFazio
DeLauro
Dellums
Dixon
Doggett
Durbin
Engel
Eshoo
Evans
Farr
Fattah
Fazio
Fields (LA)
Filner
Flake
Foglietta
Ford
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gibbons
Gonzalez
Gordon
Green
Gutierrez
Hall (OH)
Hamilton
Hastings (FL)
Hefner
Hilliard
Hinchey
Hoyer
Jackson-Lee
Jacobs
Jefferson
Johnson, E. B.
Johnston
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kleczka
LaFalce
Lantos
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Maloney
Manton
Markey
Martinez
Matsui
McCarthy
McDermott
McKinney
McNulty
Meehan
Meek
Menendez
Mfume
Miller (CA)
Mineta
Minge
Mink
Moakley
Mollohan
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne (NJ)
Pelosi
Pomeroy
Rahall
Rangel
Reed
Reynolds
Rivers
Rose
Roybal-Allard
Rush
Sabo
Sanders
Sawyer
Schroeder
Schumer
Scott
Serrano
Skaggs
Slaughter
Spratt
Stark
Stokes
Studds
Stupak
Tanner
Tejeda
Thompson
Thornton
Thurman
Torres
Towns
Tucker
Velazquez
Vento
Visclosky
Ward
Waters
Watt (NC)
Waxman
Williams
Wise
Woolsey
Wynn
Yates
NOES--280
Allard
Archer
Armey
Bachus
Baesler
Baker (CA)
Baker (LA)
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
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
Cardin
Castle
Chabot
Chambliss
Chapman
Chenoweth
Christensen
Chrysler
Clinger
Coble
Coburn
Collins (GA)
Combest
Condit
Cooley
Costello
Cox
Cramer
Crane
Crapo
Cremeans
Cubin
Cunningham
Danner
Davis
Deal
DeLay
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
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
Greenwood
Gunderson
Gutknecht
Hall (TX)
Hancock
Hansen
Harman
Hastert
Hastings (WA)
Hayes
Hayworth
Hefley
Heineman
Herger
Hilleary
Hobson
Hoekstra
Hoke
Holden
Horn
Hostettler
Houghton
Hunter
Hutchinson
Hyde
Inglis
Istook
Johnson (CT)
Johnson (SD)
Johnson, Sam
Jones
Kasich
Kelly
Kim
King
Kingston
Klink
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Laughlin
Lazio
Leach
Lewis (CA)
Lewis (KY)
Lightfoot
Lincoln
Linder
Lipinski
Livingston
LoBiondo
Longley
Lucas
Manzullo
Martini
Mascara
McCollum
McCrery
McDade
McHale
McHugh
McInnis
McIntosh
McKeon
Metcalf
Meyers
Mica
Miller (FL)
Molinari
Montgomery
Moorhead
Moran
Morella
Murtha
Myers
Myrick
Nethercutt
Neumann
Ney
Norwood
Nussle
Orton
Oxley
Packard
Parker
Paxon
Payne (VA)
Peterson (FL)
Peterson (MN)
Petri
Pickett
Pombo
Porter
Portman
Poshard
Pryce
Quillen
Quinn
Radanovich
Ramstad
Regula
Richardson
Riggs
Roberts
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Roukema
Royce
Salmon
Sanford
Saxton
Scarborough
Schaefer
Schiff
Seastrand
[[Page H1424]] Sensenbrenner
Shadegg
Shaw
Shays
Shuster
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Solomon
Souder
Spence
Stearns
Stenholm
Stockman
Stump
Tate
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Tiahrt
Torkildsen
Torricelli
Traficant
Upton
Volkmer
Vucanovich
Waldholtz
Walker
Walsh
Wamp
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wilson
Wolf
Wyden
Young (AK)
Young (FL)
Zeliff
Zimmer
NOT VOTING--3
Andrews
Sisisky
Talent
{time} 1831
So the amendment was rejected.
The result of the vote was announced as above recorded.
amendment offered by mr. cox of california
Mr. COX of California. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Cox of California: Strike section
104 and insert the following:
SEC. 104. EFFECT OF PRIOR STATE CONSIDERATION.
(a) Exhaustion of 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.''.
(b) Standard of Deference to State Judicial Decisions.--
Section 2254 of title 28, United States Code, is amended by
adding at the end the following:
``(g) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was
decided on the merits in State proceedings unless the
adjudication of the claim--
``(1) resulted in a decision that was based on an arbitrary
or unreasonable interpretation of clearly established Federal
law as articulated in the decisions of the Supreme Court of
the United States;
``(2) resulted in a decision that was based on an arbitrary
or unreasonable application to the facts of clearly
established Federal law as articulated in the decisions of
the Supreme Court of the United States; or
``(3) resulted in a decision that was based on an arbitrary
or unreasonable determination of the facts in light of the
evidence presented in the State proceeding.''.
In the proposed new section 2259(b) of title 28, United
States Code, added by section 111, strike ``section 2254(d)''
and insert ``subsections (d) and (g) of section 2254''.
Mr. COX of California (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
California?
There was no objection.
Mr. COX of California. Mr. Chairman, I also ask unanimous consent
that debate be limited on both sides, for purposes of this amendment
and any amendment thereto, to 10 minutes on each side.
The CHAIRMAN. Is there objection to the request of the gentleman from
California?
Mr. WATT of North Carolina. Mr. Chairman, reserving the right to
object, I am trying to figure out why we want to limit debate. Could
the gentleman enlighten us? I just want to find out what the amendment
does and what is the justification for limiting debate on it.
Mr. COX of California. Mr. Chairman, if the gentleman will yield, in
informal discussions on the floor prior to offering the amendment, our
side was asked whether we would be agreeable to a limitation on debate.
It is not my personal intention in any way to limit debate, but there
were Members on the Democratic side who were interested in proceeding
in a timely fashion. That is the only purpose for the unanimous consent
request that is now on the floor.
Mr. WATT of North Carolina. Mr. Chairman, I withdraw my reservation
of objection.
The CHAIRMAN. Is there objection to the request of the gentleman from
California?
Mr. CONYERS. Mr. Chairman, reserving the right to object, could I
ask, are there more than two amendments on the gentleman's side? It
seems to me that there is only one amendment on our side. Can the
gentleman give us an idea on that?
Mr. COX of California. Mr. Chairman, if the gentleman will yield, for
that purpose I would defer to the gentleman from Florida [Mr.
McCollum].
Mr. CONYERS. I yield to the gentleman from Florida.
Mr. McCOLLUM. Mr. Chairman, if the gentleman will yield, I believe
there are two amendments altogether. There may be three. It seems to me
the gentleman from Texas, Mr. Fields on our side, and also the
gentleman from Texas, Mr. Lamar Smith, each had amendments. I do not
know of any others, and I do not know their intent about offering those
amendments.
Mr. CONYERS. If they are going to offer them, would the gentleman
just ask them to provide copies to this side, please?
Mr. Chairman, I withdraw my reservation of objection.
The CHAIRMAN. Is there objection to the request of the gentleman from
California?
There was no objection.
The CHAIRMAN. The gentleman from California [Mr. Cox] will be
recognized for 10 minutes, and a Member opposed will be recognized for
10 minutes.
The Chair recognizes the gentleman from California [Mr. Cox].
Mr. COX of California. Mr. chairman, I yield myself such time as I
may consume.
Mr. Chairman, I rise to offer a simple common sense amendment to H.R.
729. My amendment, which I am calling the Harris amendment, provides
that a habeas writ will not be granted when State court decision
reasonably interprets and Federal law reasonably interprets the facts
of the case and reasonably applies the law to the facts, or to put it
simply, State decisions that are reasonable on the law and the facts
will be upheld by a habeas review.
The purpose of my amendment is to prevent the use of endless appeals
to frustrate the punishment of already convicted criminals, including
first degree murders. We do not have a Federal Criminal Code. We have,
in chief, a State criminal justice system. When one commits murder,
rape, robbery, and so on, all of these are offenses against State law.
Our Federal criminal jurisprudence is a gloss on that State criminal
justice system. The Federal procedural rules, in fact, operate in many
cases as a frustration to the State system. So we find that there are
egregious cases, and all too many of them, of convicted first degree
murderers who have run all of their appeals in the State criminal
justice system, who then get another bite, and another bite at the
apple, seemingly endlessly in the Federal system, and who have been
able, through the abuse of the habeas device, to postpone their
executions, seemingly indefinitely.
I said I am calling this the Harris amendment. It is so named after
Robert Alton Harris, the notorious first degree murderer who postponed
for well over a decade his own execution through the abuse of the
device of Federal habeas corpus, statutory habeas corpus.
Harris, even before the murder conviction that was the subject of
that long legal odyssey, was already a murderer. He had been convicted
of murdering a 19-year-old boy in California. For this he served 2
years and 5 months, and he was out on parole, went out on parole, and
he and his brother decided that they ought to rob a bank.
They went after the San Diego Trust and Savings Bank. They decided
they needed to steal a getaway car. So they headed out for the Jack-in-
the-Box, in San Diego, and they spotted two high school sophomores,
John Mayeski who was 15, and Michael Baker was 16, sitting in their
Ford LTD eating Jack-in-the-Box hamburgers.
Let me quote from the January 17, 1990, San Francisco Chronicle
article about this terrible crime.
Armed with a 9mm Luger automatic pistol, Robert Harris
commandeered Mayeski's car and ordered the two boys to drive
him to a
[[Page H1425]] wooded area near Miramar Lake. He promised
them no one would be hurt.
Daniel Harris, who later became the chief prosecution
witness against his brother, followed in another car. He
testified that they drove to the lake, where Robert Harris
fired two rounds into Mayeski, then went after Baker, who was
running for his life.
``I went over to John after he was shot. I looked at him
for three or four seconds, I guess. I heard some screaming
from the bushes, then three or four shots,'' said Daniel, who
served three years in Federal prison for his role. Later
after he was arrested, Robert Harris boasted to his cellmate
that he told the terrified Baker boy to quit crying and die
like a man. When the boy started to pray, Harris said, ``God
can't help you now, boy. You're going to die.'' After the
murders, Robert Alton Harris and his brother finished the
boys' half-eaten hamburgers. They then went on to rob the
bank. In one of the great ironies of this case, one of the
police officers who ended up apprehending Robert Alton Harris
was the father of one of their murdered boys.
{time} 1840
Unfortunately, this case is not unique. There are many, many cases
like this. But Robert Alton Harris' case took a long time to lead to
his conviction.
It was 1979, a year later, when the Superior Court pronounced
judgment on him. It was years later when finally the Governor denied
his application for clemency. It was years later when he filed his
ninth State habeas corpus petition, and he was already then
on his fourth Federal habeas corpus petition. In 4 days, Harris filed
a fifth and sixth Federal habeas corpus petition. He was not executed,
even though this crime occurred in 1978, until 1992.
To repeat, this crime that I have described in some detail occurred
in 1978. The judgment was pronounced in 1979, but it was not until
1992, a total delay of 13 years from judgment, that Robert Alton Harris
finally finished abusing Federal habeas corpus and was executed. That
made him only the second person executed in California under our death
penalty since 1978.
We have 400 prisoners sentenced to death in California since the
State reinstated the death penalty in 1978. Only two, Robert Alton
Harris and David Mason, have been executed.
Today there are 125 California death penalty cases before the Federal
courts, and because of the abuse of Federal statutory habeas corpus and
this device of endless appeals, we will never perhaps be able to
execute these convicted first-degree murderers.
As the Powell Commission wrote, ``The relatively small number of
executions as well as the delay in cases where an execution has
occurred makes clear that the present system of collateral review,''
referring to statutory habeas corpus, ``operates to frustrate the
law.''
Opponents of reform correctly state that our whole system of criminal
justice rests on the premise that it is better for 10 guilty men to go
free than for one innocent man to suffer, and for that reason, the
Constitution requires the States and the Federal Government to provide
every criminal defendant the full panoply of protections assured by the
Bill of Rights, an unrivaled arsenal of procedural and substantive
rights. And that is why, after cases have been fully litigated through
the State judicial system, habeas corpus review is available in Federal
court, a duplicative system of review that, as Justice Lewis Powell has
written, ``is without parallel from any other system of justice in the
world.''
The question before us today is not the availability of that habeas
review, but, rather, the standard that the Federal courts will use so
that we can avoid the kind of repetition and abuse that we saw in the
Robert Alton Harris case and that we see in so many cases throughout
the country.
The reasonableness standard that I am proposing is already used for
factual determinations in habeas cases pursuant to statute and for
legal determinations in many cases. This reasonableness standard
respects the coordinate role of the States in our constitutional
structure, while assuring ample Federal review of State determinations
of law and fact.
It strikes a sensible balance that is consistent with the interests
of defendants, victims, and States. It is supported by crime victims
and law enforcement professionals around the country, including the
National District Attorney's Association, which has written to all of
us in this Chamber about urging our support for what they call the Cox
amendment, what I am calling the Harris amendment, the California
District Attorneys' Association, my home State, DA's around the country
through the National DA's Association, and as I mentioned, Citizens for
Law and Order, and victims' rights groups from across the country and
coast to coast, Democrat and Republican attorneys general alike,
including the AG's in Texas and California, Democrat and Republican.
I urge your strong support for this strong habeas reform.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN. Is there a Member who wishes to speak in opposition to
the amendment?
Mr. CONYERS. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN. The gentleman from Michigan [Mr. Conyers] is recognized
for 10 minutes in opposition of the amendment.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
What we have here in this full and fair concept is a throwback to an
outmoded idea first advanced in the other body that would effectively
end all rights of habeas corpus, if minimal State guarantees are
satisfied. In other words, there would be no right of Federal review
unless the State court decision is totally arbitrary. This makes the
previous one-bite-of-the-apple position of the gentleman from Florida
[Mr. McCollum] of which we argued about and against, look absolutely
great.
This is probably the throwback amendment to habeas corpus of all
throwbacks. I mean, this would effectively end habeas corpus today at
the Federal level. It almost says that: Let each State do their own
thing on habeas corpus and forget Federal habeas review. That's a
totally untenable position that I am surprised my friend, the gentleman
from California, would even drag it out on the floor at this late hour.
This would end even the very modest advances in the McCollum bill,
which are very few, indeed.
The CHAIRMAN. The Committee will rise informally in order that the
House may receive a message.
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