[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.

                          ____________________