[Congressional Record Volume 141, Number 25 (Wednesday, February 8, 1995)]
[House]
[Pages H1425-H1434]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  EFFECTIVE DEATH PENALTY ACT OF 1995

  The Committee resumed its sitting.
  Mr. CONYERS. Mr. Chairman, in continuing my opposition against the 
biggest throwback amendment of all, I must express my shock and 
disappointment at the gentleman from California for really attempting 
to end Federal habeas corpus, if even the most minimal State guarantees 
are satisfied.
  [[Page H1426]] Presumably the bill, the crime bill, has been reported 
by the subcommittee, the full committee, it is now on the floor, and 
now from the Republican ranks we now have another amendment that even 
vitiates the provisions, the very modest provisions, in the McCollum 
bill, and so we would end up with not even one bite at the apple which 
I thought was awfully scarce, no right to counsel even in a 
postconviction proceeding.
  So the result with the 50 States would have 50 different standards 
for protecting Federal constitutional rights. I do not think that we 
would want this kind of provision put in the bill under any 
circumstances.

                              {time}  1850

  The full and fair issue was deadlocked in the other body last year, 
and this amendment is another attempt to pass it again.
  I urge overwhelming rejection of this amendment.
  Mr. Chairman, I yield 4 minutes to the gentleman from North Carolina 
[Mr. Watt].
  Mr. WATT of North Carolina. I thank the gentleman for yielding this 
time to me, although I doubt I will take 4 minutes.
  I do not know what I can say about this. I just want to make sure 
people understand what it is we are doing here.
  All of my colleagues and the American people are getting, if this 
amendment passes, the Federal courts completely out of the habeas 
business. You will not have any Federal habeas rights if this bill 
passes, because in order for you to get in the Federal court, the 
Federal court would have to find that a decision that was rendered in 
the State court was arbitrary or unreasonable interpretation of clearly 
established Federal law, resulted in a decision that was based on an 
arbitrary and unreasonable application to the facts, resulted in a 
decision that was based on an arbitrary and unreasonable determination 
of the facts in light of the evidence presented in the State 
proceeding. And what you are doing, really, is inviting rock-throwing 
between the Federal courts and State courts.
  Now, we know how gentlemanly and cordial the courts have been with 
each other. Federal courts never ever say to a State court that, 
``Court, you have been arbitrary and unreasonable.'' That would not 
even be gentlemanly, would not even be proper protocol, almost, in a 
Federal court.
  I have never seen a Federal court say to a State court, ``Judge, you 
have been arbitrary and unreasonable.'' That is the kind of stuff that 
we say to claimants when they file lawsuits.
  So here we are now inviting the Federal courts to start throwing 
rocks at the State court and the State court to start throwing rocks 
back at the Federal court and doing away with even the one opportunity 
that was guaranteed, or at least provided in the underlying bill. And 
we are doing it, I would add, without the benefit of one iota of 
discussion in committee about it.
  I have been banging my head against this wall all day, and I am sure 
you are going to do whatever you want to do. But at least if you are 
going to do this, have somebody came in and present some evidence that 
it makes sense. Ask Federal judges if they think it is a good idea for 
them to start saying to State judges that, ``You are arbitrary and 
unreasonable.'' It just does not happen.
  So the practical effect of what you are doing is to say that you are 
never going to have any rights in the habeas arena in Federal court.
  I encourage my colleagues to be reasonable and defect this proposed 
amendment.
  Mr. CONYERS. I thank the gentleman from North Carolina, my colleague.
  Mr. Chairman, may I remind my friends on the other side on the 
Committee on the Judiciary that this matter has never come up before 
that I can recall, before the Committee on the Judiciary. The gentleman 
from California [Mr. Cox] has never appeared before the committee.
  Mr. McCOLLUM. Not in this Congress, but it certainly came up in other 
Congresses.
  Mr. CONYERS. Just a minute, please. I will be happy to yield time. We 
have never considered this matter in this 104th Congress. It has never 
come up, was never the subject of an amendment.
  Mr. Chairman, I will give the gentleman from Florida [Mr. McCollum] a 
chance to correct anything he would like to correct. But this has never 
been put before the Committee on the Judiciary for a vote, and the 
gentleman from California [Mr. Cox] has never presented this subject 
matter before, and we are literally blind-sided in the last hour of 
this debate on this very important part where you have advanced the 
habeas part of the Contract With America, and now we have another 
amendment that goes in a completely different way.
  Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I would yield to my friend, the chairman of the 
Subcommittee on Crime.
  Mr. McCOLLUM. I thank the gentleman for yielding.
  Mr. Chairman, I would just like to point out to the gentleman that at 
hearings of the subcommittee, on January 19, 1995, we had two panels on 
habeas corpus reform, and both panels addressed this question. One 
panel involved the Attorney General of California, Daniel Lungren. 
Attorney General Lungren spent a great deal of time discussing and 
arguing for the full and fair concept that Mr. Cox is advocating here 
tonight.
  Mr. CONYERS. Mr. Chairman, I was there. He did mention, it was rather 
fulsome testimony on a great range of subjects. But I could hardly 
consider that that was the notice that we needed to come here tonight. 
In the markup, it was never mentioned at all. As a matter of fact, it 
was the gentleman's provisions on habeas that we gave great attention 
to.
  Mr. Chairman, I yield further to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Mr. Chairman, I would like to inquire of 
the gentleman from Florida [Mr. McCollum] if, in fact, testimony was 
presented and the committee then dealt with this and thought it was a 
wonderful idea, why was it not in the original bill? Why are we coming 
to the floor with it at the 99th hour on this bill and dealing with it 
in 10 minutes of debate?
  If you all thought it was a great idea, I would have thought you 
would have incorporated it into the bill.
  Mr. McCOLLUM. If the gentleman will yield further.
  Mr. CONYERS. Briefly.
  Mr. McCOLLUM. I thank the gentleman.
  Briefly, the idea of 10 minutes of debate was by unanimous consent 
request. We did not have to follow that.
  Second, it has come to the floor the way it has. The gentleman from 
California [Mr. Cox] is not a member of the committee. We did not bring 
it up, the committee did not bring it up. He has a right to bring it 
up, to bring it forward, and he has.
  The CHAIRMAN. The time is controlled by the gentleman from California 
[Mr. Cox], who has 1\1/2\ minutes remaining.
  Mr. COX of California. I thank the Chairman.
  Mr. Chairman, I just point out that the language of the amendments 
says reasonable. It also says arbitrary. But a separate standard is 
reasonable. It is arbitrary or unreasonable.
  Obviously, the reasonableness test is the more difficult to meet.
  Simply stated, the Federal courts will defer to reasonable decisions 
on the facts, reasonable decisions on the law, and reasonable decisions 
on mixed questions of law and fact made at the State courts.
  That is exactly what they should do because after all we are already 
requiring in this bill that criminal defendants exhaust all of their 
State remedies, if they go through trial, if they have an appeal, if 
they have another appeal, and so on. All of this within the State court 
system.
  But if habeas corpus, statutory habeas corpus is available simply to 
throw out the whole State judicial system, why do we have it in the 
first place? If we are going to look at all of these questions from 
scratch, de novo, facts, evidence, law, the whole thing, as if the 
State proceeding had never happened, then Robert Alton Harris would be 
able to, in the future, to be able to delay his execution for 13 more 
years.

[[Page H1427]]

  (The letter referred to by Mr. Cox of California is as follows:)

                                                 February 8, 1995.
     Hon. Henry Hyde,
     Chairman of the House Judiciary Committee, Rayburn House 
         Office Building, Washington, DC.
       Dear Chairman Hyde: We would first of all like to thank you 
     for your tireless effort on behalf of habeas corpus reform. 
     As Attorneys General for our respective states we are 
     confronted with a system of federal habeas review that is 
     often intrusive, cumbersome, and time consuming. It also 
     imposes a great cost on victims of crime and undermines 
     finality in our criminal justice system.
       The central problem underlying federal habeas corpus review 
     is a lack of comity and respect for state judicial decisions. 
     The lower federal courts should simply not be relitigating 
     matters that were handled properly and reasonably by the 
     state judicial systems. This not in any way a criticism of 
     those who serve in the federal judiciary, but rather a 
     demonstration of the need for Congressional action to reform 
     the federal statutory scheme.
       In this regard, we strongly support an amendment that will 
     be offered by Congressman Christopher Cox to title I H.R. 
     729, which would give deference to state court decisions on 
     federal habeas review, as long as the state courts acted 
     reasonably in their adjudication of the case. Specifically, 
     the amendment would provide:
       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.
       We believe that meaningful habeas corpus reform must 
     contain such a standard of deference to reasonable state 
     court decisions. This is essential if the trial of criminal 
     defendants is to be the ``main event'' rather than a sideshow 
     for ultimate resolution of the case on federal habeas corpus 
     review.
       Thank you again for your continued effort on behalf of 
     prosecutors and crime victims. We look forward to working 
     with you on this and other issues in the future.
           Sincerely,
         Dan Morales, Attorney General of Texas; Grant E. Woods, 
           Attorney General of Arizona; Franie Sue Del Papa, 
           Attorney General of Nevada; Daniel E. Lungren, Attorney 
           General of California; W. A. Drew Edmondson, Attorney 
           General of Oklahoma; Joseph P. Mazurek, Attorney 
           General of Montana; Pamela Carter, Attorney General of 
           Indiana, Jeff Sessions, Attorney General of Alabama; 
           Ernest D. Preate, Jr., Attorney General of 
           Pennsylvania.
                                                                    ____

                The Harris Case for Habeas Corpus Reform
       On July 5, 1978, Robert Alton Harris murdered two teenage 
     boys in San Diego. Two days later, he was arraigned.
       On March 6, 1979, the San Diego Superior Court pronounced 
     judgment on Harris, following a trial in which the jury 
     convicted him of two counts of first degree murder and 
     returned a death sentence.
       Five days before execution, Gov. Wilson denied Harris's 
     application for clemency. Harris filed his 9th state habeas 
     corpus petition and 4th federal habeas corpus petition.
       In the next four days, Harris filed his 5th and 6th federal 
     habeas corpus petitions.
       Harris was even the named plaintiff in a class action filed 
     in U.S. district court on behalf of all California death-row 
     inmates. The suit alleged that the gas chamber was a cruel 
     and unusual means of execution and sought a stay on Harris' 
     execution.
       On April 21, 1992, Harris was finally executed.
       The total delay from judgment to execution was 13 years.
       In all, Harris filed 6 federal habeas corpus petitions.
       69% of the 141 significant events in the Harris proceedings 
     occurred in federal court. Only 31% occurred at the state 
     level.


           the harris case is not unique--that's the tragedy

       One Ninth Circuit Judge has called the Harris case, even 
     before its particularly egregious final rounds of litigation, 
     ``a textbook example'' of the abuse of federal habeas corpus.
       While 400 prisoners have been sentenced to death in 
     California since the state reinstated the death penalty in 
     1978, only Robert Alton Harris and David Mason have been 
     executed.
       Today, there are 125 California death penalty cases before 
     the federal courts.
       A similar case in Washington state: 4 federal habeas corpus 
     petitions dragged out for 12 years the execution of Charles 
     Campbell. Campbell was a convicted rapist who murdered 3 
     people while on work furlough from prison. The victims were 
     his earlier rape victim, a neighbor who had testified against 
     him, and her 8-year-old daughter. The 9th Circuit took 5 
     years to resolve must one of the habeas corpus petitions.

  Mr. Chairman, I yield to the gentleman from Florida [Mr. McCollum] to 
close.
  Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding, and I 
would like to say that everything we are doing here is reasonable. If 
there is a full and fair review of the provisions by the courts, the 
Federal courts, of what is going on underneath, and if the lower courts 
have made this decision, why should one Federal judge overturn the 
rulings of the State court judge, five State intermediate appellate 
courts, and perhaps nine Supreme Court justices.?
  The CHAIRMAN. All time has expired.
  Mr. CONYERS. Mr. Chairman, I ask unanimous consent to proceed for 30 
additional seconds.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Michigan?
  There was no objection.

                              {time}  1900

  Mr. CONYERS. Mr. Chairman, I just want everybody in this Chamber to 
know that, as opposed as I am to this Draconian amendment offered by 
the gentleman from California [Mr. Cox], ironically, if adopted, it may 
be the kiss of death for any habeas corpus reform since we know that 
the Senate is almost sure to deadlock.
  So, Mr. Chairman, I say to my colleagues, Have it your way, 
gentlemen. The McCollum habeas and the Cox habeas are in direct 
contradiction, and you----
  The CHAIRMAN. All time has expired.
  The question is on the amendment offered by the gentleman from 
California [Mr. Cox].
  The question was taken; and the Chairman announced that the noes 
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 291, 
noes 140, not voting 3, as follows:
                             [Roll No 106]

                               AYES--291

     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
     Boucher
     Brewster
     Browder
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chapman
     Chenoweth
     Christensen
     Chrysler
     Clement
     Clinger
     Coble
     Coburn
     Coleman
     Collins (GA)
     Combest
     Condit
     Cooley
     Costello
     Cox
     Cramer
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Danner
     Davis
     Deal
     DeLay
     Deutsch
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Dornan
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Frost
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Gilman
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Green
     Greenwood
     Gunderson
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hancock
     Hansen
     Harman
     Hastert
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Holden
     Horn
     Hostettler
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Jefferson
     Johnson (SD)
     Johnson, Sam
     Jones
     Kanjorski
     Kaptur
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     LaHood
     Lantos
     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
     Menendez
     Meyers
     Mica
     Miller (FL)
     Minge
     Molinari
     Montgomery
     Moorhead
     Moran
     Morella
     Murtha
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     Orton
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Peterson (FL)
     Peterson (MN)
     [[Page H1428]] 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
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Stupak
     Talent
     Tanner
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Tejeda
     Thomas
     Thornberry
     Tiahrt
     Torkildsen
     Torricelli
     Traficant
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wilson
     Wolf
     Wyden
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                               NOES--140

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

                             NOT VOTING--3

     Andrews
     Collins (MI)
     Metcalf

                              {time}  1919
  Ms. FURSE, Mr. POMEROY, and Mr. RAHALL changed their vote from 
``aye'' to ``no.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.
                              {time}  1920

  The CHAIRMAN. Are there further amendments to the bill?


              amendment offered by mr. fields of louisiana

  Mr. FIELDS of Louisiana. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Fields of Louisiana: In the matter 
     proposed to be inserted in section 3593(e) of title 18, 
     United States Code, by section 201, insert ``or a sentence of 
     life imprisonment without the possibility of release'' after 
     ``shall recommend a sentence of death''.
       Strike subsection (b) of section 201 and eliminate the 
     subsection designation and heading of subsection (a).

  Mr. FIELDS of Louisiana. Mr. Chairman, I ask unanimous consent that 
time on my amendment and all amendments thereto be limited to 10 
minutes, equally divided on both sides.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Louisiana?
  There was no objection.
  The CHAIRMAN. The gentleman from Louisiana [Mr. Fields] will be 
recognized for 5 minutes, and a Member opposed will be recognized for 5 
minutes.
  Does the gentleman from Pennsylvania [Mr. Gekas] wish to manage the 
opposition to the Fields amendment?
  Mr. GEKAS. I do, Mr. Chairman.
  The CHAIRMAN. The gentleman from Pennsylvania [Mr. Gekas] will be 
recognized for 5 minutes.
  The Chair recognizes the gentleman from Louisiana [Mr. Fields].
  Mr. FIELDS of Louisiana. Mr. Chairman, I yield such time as she may 
consume to the gentlewoman from Illinois [Mrs. Collins].
  (Mrs. COLLINS of Illinois asked and was given permission to revise 
and extend her remarks.)
  Mrs. COLLINS of Illinois. Mr. Chairman, I rise in support of the 
amendment.
  Mr. Chairman, today my Republican friends continue along with their 
stampede to undo over 200 years of constitutional rights and 
protections afforded all of our citizens. I have decided that the GOP 
should rename their 100-day legislative agenda the Assault on America.
  I am truly disturbed with the short-sighted and politically misguided 
attempts by those on the other side of the aisle to limit individual 
liberties and establish an eye-for-an-eye justice system in the United 
States. Their irrational cries for vengeance as a form of crime control 
do nothing but blind society to the real solutions to the problems with 
which we are confronted and inevitably heighten divisiveness among 
varying races and socioeconomic classes across our Nation.
  We have a perfect example of this, Mr. Chairman, in the bill before 
us, H.R. 729, the Effective Death Penalty Act. The title of this 
legislation is an absolute oxymoron. No study that I am aware of has 
ever proven the deterrent effect of the death penalty, and yet the 
leadership wants to accelerate the rate of executions in this country 
while at the same time greatly curtailing the rights of defendants to 
receive not only adequate representation and fair trials, but also 
sufficient protections against wrongful executions.
  No matter what your stance on the death penalty, I firmly believe 
that few in America wish to run the risk of putting an innocent person 
to death. However, this bill clearly heightens that risk.
  Not only does H.R. 729 fail to require that States provide defendants 
with competent lawyers at the critical trial stage of death penalty 
cases, it also effectively bars defendants from second habeas corpus 
petitions even where newly discovered evidence shows that the defendant 
is most likely innocent of the charges leveled against him or her.
  I am particularly alarmed because, as Supreme Court Justice Harry 
Blackmun stated last year, ``the death penalty experiment has failed * 
* * it remains fraught with arbitrariness, discrimination, and caprice, 
and mistake.'' Given that this is the case, why in the world would the 
GOP want to expand its use?
  It is becoming increasingly clear, Mr. Chairman, that the Republicans 
believe the Constitution applies only selectively to those individuals 
and groups that they deem acceptable or deserving--poor, underserved, 
minority Americans need not apply.
  Mr. Chairman, the fate of our system of justice rests on the 
citizenry believing that it is fair. Whenever that fairness is lost, so 
follows the justice. Unfortunately, the bill before us would only bring 
greater unfairness to the system.
  I urge my colleagues to vote no on this nonsensical attempt to 
accelerate government-sanctioned executions in the United States.
  Mr. FIELDS of Louisiana. Mr. Chairman, I yield myself such time as I 
may consume. Let me briefly explain the amendment.
  The amendment under the present piece of legislation that is before 
us--it provides in no uncertain terms that the jury or, if there is no 
jury, the court shall recommend a sentence of death. What this 
amendment simply would do is not take out, it would not take out the 
sentence of death, as much as I would want to do that, but it would 
maintain that language, but it would add to, to give the jury and the 
court the opportunity of not only being able to recommend a sentence of 
death but give them the option to either recommend a sentence of death 
or a sentence of life in prison without the possibility of release.
  That is all the amendment does.
  Now, philosophically, I am very strongly and adamantly opposed to 
capital punishment, but it does not do away with capital punishment in 
the bill. But I do think if we leave the bill as it is in its present 
form, we will have a bill that would give the judge and would give the 
jury no option whatsoever. Due to the fact that many of the people who 
are victims of capital punishment are the people who do not have 
capital, many times he who does not have the capital normally get 
punished.
  So this amendment certainly gives us an opportunity to give the judge 
and the jury the option of either imposing capital punishment or giving 
a person life in prison without parole.
  Mr. Chairman, I reserve the balance of my time.
  Mr. GEKAS. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, if the gentleman's amendment should be accepted by the 
House, it would in effect make the 
[[Page H1429]] present bill that calls for instructions to the jury to 
carry a certain essence with them, would make those provisions 
unconstitutional.
  We have to recall that in the crime bill that is now the law of the 
land the flawed language, which we consider to be flawed, calling for 
instructions to the jury that no matter what the aggravating 
circumstances and mitigating circumstances might be, no matter what 
weight is placed on them allowing the jury to find life or the sentence 
of death is clearly unconstitutional.
  What we do is implant language into the bill which makes it mandatory 
to find the death penalty, if a jury, in the second hearing, in the 
bifurcated hearing, determines that the aggravating circumstances 
outweigh the mitigating circumstances.
  That conforms with many of the States who have crafted death 
penalties of their own with respect to the jury instructions, and the 
Supreme Court has blessed the language of at least 15 States who have 
similar mandatory language, finding that the aggravating circumstances 
outweighing the mitigating circumstances requires a death penalty.
  Now, what this gentleman's amendment does is allow another 
alternative to the jury, as I understand it, life imprisonment without 
patrol, which means that the mandatory feature, that which the Supreme 
Court has found to be constitutional and which forms the bedrock of the 
provisions in the present legislation, which we are offering to the 
House, would render it unconstitutional.
  We have gone through this road many times. In a strange way, adopting 
this amendment would be like repeating last year's error in the crime 
bill, which itself took us back to prior to 1974, before the Supreme 
Court struck down the death penalty. And provides for a jury 
deliberation on the death penalty that allows for so much discretion 
that discrimination or racial or gender basis or age or any of those 
things could enter into the picture, where in our language, in our 
bill, because of the mandatory features, if aggravating circumstances 
outweigh mitigating, the chances for discrimination, bias, gender, 
race, all of those are eliminated.
  So we would ask that the gentleman's amendment be defeated.
  Mr. Chairman, I reserve the balance of my time.
  Mr. FIELDS of Louisiana. Mr. Chairman, this amendment has nothing to 
do with race. There is not race in the bill. It has nothing to do with 
race.
  Mr. Chairman, I yield 1\1/2\ minutes to the distinguished gentleman 
from Vermont [Mr. Sanders].
  Mr. SANDERS. Mr. Chairman, I thank the gentleman for yielding time to 
me.
  I think the Fields amendment is eminently sensible.
  At a time when many of our friends are saying, get the big, bad 
Federal Government off the backs of local communities, what the Fields 
amendment says to judges and juries all over America, if they 
understand what the circumstances are in the case and if they want to 
rule for the death penalty, OK, they can do that, but if they want to 
rule for life imprisonment, they also have that right.

                              {time}  1930

  It is flexible, it is consistent with local control.
  In a more general sense, Mr. Chairman, I get a little bit nervous 
with the fervor that we hear here about the death penalty. I would 
point out to my friends that to the best of my knowledge, the United 
States of America remains the only major industrialized nation on Earth 
that allows for the death penalty in all circumstances other than war 
crimes and in treason. Our friends in Canada do not have the death 
penalty. Our friends south of us in Mexico do not have the death 
penalty.
  What the amendment of the gentleman from Louisiana [Mr. Fields] says 
is, give juries and give judges the option. I think it is a sensible 
proposal.
  The CHAIRMAN. The Chair will inform the gentleman from Louisiana [Mr. 
Fields] that he has 2 minutes remaining, and the gentleman from 
Pennsylvania [Mr. Gekas] has 2 minutes remaining.
  Mr. GEKAS. Mr. Chairman, I yield myself such time as I may consume.
  It is well-known, and it is so well-embedded in the Congressional 
Record in previous sessions and in newspaper reports, television 
reports, and in every poll known to mankind that the American people, 
by a wide margin, 75, 80 percent, favor the imposition of the death 
penalty in a proper case. They do not exactly favor the imposition of 
the death penalty, they favor the concept of allowing a jury that hears 
the facts to have the option of listening to whether aggravating 
circumstances appear in a particularly vicious case to determine that a 
death penalty is the proper sentence.
  Mr. Chairman, the amendment that we have here returns us to the stone 
age of the death penalty, where discretion was so freakishly applied by 
the jury, and that word ``freakishly'' is in the Supreme Court opinion 
that struck down the death penalty, that we cannot be certain that bias 
and prejudice would not enter into the final decision made by the jury.
  The amendment that we have at hand would do much of the same. In 
giving unfettered discretion to the jury to determine, regardless of 
the aggravating circumstances or the mitigating circumstances, that 
they could find death or life throws us back to the unconstitutional 
days of the death penalty, which we are trying to avoid, and which this 
bill corrects and brings into play language already approved by the 
Supreme Court. Thereby we avoid the possibility of the death penalty. 
The Supreme Court has said that this language, as it appears in the 
State criminal statutes in 10, 12, 15 States, is sound, is 
constitutional, is proper, and we are lifting it from a Supreme Court 
opinion already in existence, so that we would be safe in assuming that 
this language cures our constitutional problems with the imposition of 
the death penalty.
  Mr. SANDERS. Mr. Chairman, will the gentleman yield?
  The CHAIRMAN. The time of the gentleman from Pennsylvania [Mr. Gekas] 
has expired.
  Mr. FIELDS of Louisiana. Mr. Chairman, I yield 30 seconds to the 
gentleman from Vermont [Mr. Sanders].
  Mr. SANDERS. Mr. Chairman, the gentleman is correct, I think, in 
saying that polls in America support the death penalty. People want 
judges and juries to have the option to use the death penalty. I think 
the gentleman will not disagree with me that polls and studies also 
indicate that the public wants judges and juries to have the option to 
use the death penalty or not to use the death penalty to allow for life 
imprisonment. That is precisely what the Fields amendment is.
  Mr. FIELDS of Louisiana. Mr. Chairman, I yield 1\1/2\ minutes to the 
gentleman from Illinois [Mr. Durbin] to close the debate.
  Mr. DURBIN. Mr. Chairman, I thank my colleague, the gentleman from 
Louisiana, for yielding time to me.
  Mr. Chairman, I would say to the committee that I have a different 
position on the death penalty than the gentleman who has offered the 
amendment. I favor the death penalty, he opposes it, but I still 
believe he offers a valuable amendment.
  If Members believe in the bedrock of the American judicial system, it 
is trial by jury. It is a decision by America's citizens as to the 
guilt or innocence of an individual.
  What the gentleman from Louisiana [Mr. Fields] is suggesting is that 
that jury, under the most heinous crimes and heinous circumstances, 
would be given two options and not one. Under the bill, they have only 
one option, the death penalty. Under the amendment offered by the 
gentleman from Louisiana [Mr. Fields], they have a second option of 
life in prison without parole.
  It strikes me we are dealing with factors that are somewhat 
subjective, aggravating and mitigating factors. I think that if we 
believe in the Constitution and the bedrock of our judicial system, we 
give to that jury these two options.
  Both options protect society from those individuals who have 
committed such violent crimes that we no longer want to see them on the 
streets or in our neighborhoods, but I think it is reasonable to offer 
this option. I salute my colleague, the gentleman from Louisiana, for 
offering that option.
  I hope that my colleagues, despite their fervor over the death 
penalty, will understand that this gets to the 
[[Page H1430]] bedrock principle of justice in this country, whether or 
not a decision is to be made by a jury of a person's peers.
  The CHAIRMAN. All time has expired.
  The question is on the amendment offered by the gentleman from 
Louisiana [Mr. Fields].
  The question was taken; and the chairman announced that the ayes 
appeared to have it.


                             recorded vote

  Mr. GEKAS. Mr. Chairman, I demand a recorded.
  A recorded vote was ordered.
  The CHAIRMAN. This is a 15-minute vote.
  The vote was taken by electronic device, and there were--ayes 139, 
noes 291, not voting 4, as follows:
                             [Roll No 107]

                               AYES--139

     Abercrombie
     Ackerman
     Barrett (WI)
     Becerra
     Beilenson
     Bentsen
     Berman
     Bishop
     Bonior
     Boucher
     Brewster
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Chapman
     Clay
     Clayton
     Clyburn
     Collins (IL)
     Conyers
     Coyne
     de la Garza
     DeFazio
     Dellums
     Dingell
     Dixon
     Doggett
     Duncan
     Durbin
     Edwards
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Flake
     Foglietta
     Ford
     Frank (MA)
     Furse
     Gejdenson
     Gonzalez
     Green
     Gutierrez
     Gutknecht
     Hamilton
     Hastings (FL)
     Hefner
     Hilliard
     Hinchey
     Hoyer
     Jacobs
     Jefferson
     Johnson, E. B.
     Johnston
     Kennedy (MA)
     Kennelly
     Kildee
     Kleczka
     LaFalce
     LaTourette
     Laughlin
     Levin
     Lewis (GA)
     Lofgren
     Lowey
     Luther
     Maloney
     Markey
     Martinez
     Matsui
     McCarthy
     McDermott
     McKinney
     McNulty
     Meek
     Mfume
     Miller (CA)
     Mineta
     Minge
     Mink
     Moakley
     Mollohan
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Pomeroy
     Rahall
     Rangel
     Reynolds
     Rivers
     Roemer
     Rose
     Roth
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Scott
     Serrano
     Shays
     Skaggs
     Slaughter
     Smith (MI)
     Spratt
     Stark
     Stokes
     Studds
     Thompson
     Thornton
     Thurman
     Torkildsen
     Torres
     Towns
     Tucker
     Velazquez
     Vento
     Visclosky
     Ward
     Waters
     Watt (NC)
     Waxman
     Williams
     Wise
     Woolsey
     Wynn
     Yates

                               NOES--291

     Allard
     Archer
     Armey
     Bachus
     Baesler
     Baker (CA)
     Baker (LA)
     Baldacci
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Bevill
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Borski
     Browder
     Brownback
     Bryant (TN)
     Bryant (TX)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Cardin
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Clement
     Clinger
     Coble
     Coburn
     Coleman
     Collins (GA)
     Combest
     Condit
     Cooley
     Costello
     Cox
     Cramer
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Danner
     Davis
     Deal
     DeLauro
     DeLay
     Deutsch
     Diaz-Balart
     Dickey
     Dicks
     Dooley
     Doolittle
     Dornan
     Doyle
     Dreier
     Dunn
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Frost
     Funderburk
     Gallegly
     Ganske
     Gekas
     Gephardt
     Geren
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Greenwood
     Gunderson
     Hall (OH)
     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
     Jackson-Lee
     Johnson (CT)
     Johnson (SD)
     Johnson, Sam
     Jones
     Kanjorski
     Kaptur
     Kasich
     Kelly
     Kennedy (RI)
     Kim
     King
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     LaHood
     Lantos
     Largent
     Latham
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Lincoln
     Linder
     Lipinski
     Livingston
     LoBiondo
     Longley
     Lucas
     Manton
     Manzullo
     Martini
     Mascara
     McCollum
     McCrery
     McDade
     McHale
     McHugh
     McInnis
     McIntosh
     McKeon
     Meehan
     Menendez
     Meyers
     Mica
     Miller (FL)
     Molinari
     Montgomery
     Moorhead
     Moran
     Morella
     Murtha
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     Orton
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Peterson (FL)
     Peterson (MN)
     Petri
     Pickett
     Pombo
     Porter
     Portman
     Poshard
     Pryce
     Quillen
     Quinn
     Radanovich
     Ramstad
     Reed
     Regula
     Richardson
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Schumer
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Stupak
     Talent
     Tanner
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Tejeda
     Thomas
     Thornberry
     Tiahrt
     Torricelli
     Traficant
     Upton
     Volkmer
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Wyden
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--4

     Andrews
     Collins (MI)
     Metcalf
     Wilson

                              {time}  1951

  Mr. SMITH of Michigan changed his vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
                amendment offered by mr. smith of texas

  Mr. SMITH of Texas. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Smith of Texas: Proposed section 
     2257 of title 28, United States Code, in section 111 of H.R. 
     729, is amended--
       (1) in subsection (b)--
       (A) by striking ``, or fails to make a timely application 
     for court of appeals review following the denial of such a 
     petition by a district court'' in paragraph (1);
       (B) by striking paragraph (2);
       (C) by redesignating paragraph (3) as paragraph (2);
       (D) by striking the period at the end of paragraph (2) as 
     so designated and inserting ``; or''; and
       (E) by adding a new paragraph (3) as follows:
       ``(3) a State prisoner files a habeas corpus petition under 
     section 2254 within the time required in section 2258 and 
     fails to make a substantial showing of the denial of a 
     Federal right or is denied relief in the district court or at 
     any subsequent stage of review.''; and
       (2) in subsection (c), by striking ``If one of the 
     conditions in subsection (b) has occurred, no Federal court 
     thereafter'' and inserting ``On a second or later habeas 
     corpus petition under section 2254, no Federal court''.
       Proposed section 2260 of title 28, United States Code, in 
     section 111 of H.R. 729, is amended to read as follows:

     ``Sec. 2260. Certificate of probable cause

       ``An appeal may not be taken to the court of appeals from 
     the final order of a district court denying relief in a 
     habeas corpus proceeding that is subject to the provisions of 
     this chapter unless a circuit justice or judge issues a 
     certificate of probable cause. A certificate of probable 
     cause may only issue if the petitioner has made a substantial 
     showing of the denial of a Federal right. The certificate of 
     probable cause must indicate which specific issue or issues 
     satisfy this standard.''.
       In the table of sections for proposed chapter 154 of title 
     28, United States Code, in section 111 of H.R. 729, the item 
     relating to proposed section 2260 of title 28, United States 
     Code, is amended by striking ``inapplicable''.

  Mr. SMITH of Texas (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 
Texas?
  There was no objection.
  Mr. SMITH of Texas. Mr. Chairman, I ask unanimous consent that debate 
on my amendment and all amendments thereto be limited to 10 minutes, 5 
minutes per side.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Texas?
  There was no objection.
  The CHAIRMAN. The gentleman from Texas [Mr. Smith] is recognized for 
5 minutes.
  Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, the committee bill provides for an automatic stay of 
execution throughout all stages of federal review for the first federal 
habeas petition for states that provide counsel on state collateral 
review. Some States had raised concerns that this provision may have 
the unintended effect of prolonging litigation by allowing a stay of 
execution even where the federal habeas petition presents no 
substantial claim for the federal court to consider.
  [[Page H1431]] This amendment has bipartisan support.
  I would like to read an excerpt from a letter from the attorney 
general of Texas, a Democrat, Dan Morales. This letter reads in part,

       Providing for an automatic stay regardless of the merit of 
     the issues raised is inconsistent with the purpose of federal 
     habeas review, and as a practical matter, will lead to 
     unwarranted delay in the imposition of valid sentences. The 
     goal of affording death sentence inmates ``one bite of the 
     apple'' should at the very least be accomplished without 
     staying an execution while a petitioner pursues frivolous 
     appeals.

  Mr. Chairman, the amendment before us provides that the automatic 
stay will terminate once State court review is completed if that 
petitioner fails to make a substantial showing of the denial of a 
Federal right or a denied relief on his petition in the Federal 
district court or at a later stage of Federal habeas review. Under 
current law, Federal courts routinely must evaluate whether an issue 
exists to warrant review in granting of a stay, so the rights of the 
inmate are still protected.
  This amendment improves the legislation, Mr. Chairman, and I urge its 
adoption.

                                Office of the Attorney General

                                     Austin, TX, February 7, 1995.
     Hon. Lamar S. Smith,
     House of Representatives,
     Washington, DC.
       Dear Representative Smith: The recently introduced House of 
     Representatives Bill 729 raises significant concerns for the 
     State of Texas in the post-conviction litigation of capital 
     cases. Specifically, I am concerned with the provision of 
     proposed Sec. 2257 for an automatic stay of execution while a 
     death-sentenced inmate litigates a complete round of federal 
     habeas review, from district court through the circuit courts 
     of appeals and the Supreme Court and the provision of 
     proposed Sec. 2258 eliminating the certificate of probable 
     cause requirement for appeals. Providing for an automatic 
     stay, regardless of the merit of the issues raised, is 
     inconsistent with the purpose of federal habeas review and, 
     as a practical matter, will lead to unwarranted delay in the 
     imposition of valid death sentences. The goal of affording 
     death-sentenced inmates ``one bite of the apple'' should at 
     the very least be accomplished without staying an execution 
     while a petitioner pursues frivolous appeals. I urge you to 
     support a floor amendment eliminating these two provisions.
       As I'm sure you are aware, death-sentenced petitioners 
     pursuing federal habeas review have, virtually without 
     exception, pursued a direct appeal to the state's highest 
     court of the review, and, in most instances, sought 
     certiorari review of the state court's disposition of the 
     direct appeal. Further, most if not all such petitioners have 
     litigated at least one complete round of state habeas review. 
     Under these circumstances, if a petitioner cannot satisfy the 
     standard of Barefoot v. Estelle, 463 U.S. 880 (1983), which 
     requires a substantial showing of the denial of a federal 
     right, then a stay is unwarranted. As demonstrated by 
     existing practice, United States district courts, circuit 
     courts of appeals and the Supreme Court are fully able to 
     evaluate whether there exists an issue which warrants review 
     and a stay.
       Notably, the certificate of probable cause requirement was 
     originally enacted to eliminate or reduce the number of 
     unwarranted stays of execution entered while death-sentenced 
     inmates pursued frivolous appeals. Barefoot v. Estelle, 463 
     U.S. at 892 n.3 (and citations therein). Thus, the proposed 
     automatic stay, which would extend through the appeal and 
     disposition of a petition for certiorari review, represents a 
     step backward rather than forward in the goal of expediting 
     post-conviction review. Indeed, the automatic stay is an 
     unwarranted step in the opposite
      direction from the ``full and fair'' provisions that have 
     garnered so much support in the past. Rather than 
     deferring to a state court's reasonable disposition of 
     constitutional issues, the automatic stay provisions 
     disregard the significant amount of review that precedes 
     federal habeas review. The ``full and fair'' concept 
     aside, the current practice of allowing each federal court 
     from the district court through the Supreme Court to 
     determine whether a stay is warranted is preferable.
       The effect of the automatic stay is not ameliorated by the 
     time limits imposed on adjudication at each stage or by the 
     designation of a finite period of time to go from state 
     review into federal habeas review. The time limits imposed do 
     very little, if anything, to streamline the process of the 
     United States District Courts in Texas, the Fifth Circuit 
     Court of Appeals, or the Supreme Court. For example, a death-
     sentenced inmate has normally delineated his grounds for 
     relief in state court and exhausted state remedies with 
     respect to those grounds. It simply does not require 180 days 
     to transform a state petition into a federal petition founded 
     on the same legal bases and, in practice, federal district 
     courts in Texas normally require a petition to be filed if 
     the petitioner has been allowed, on the average, 60 or more 
     days following state habeas review. Similarly, the time 
     limits imposed for adjudication at each stage do not impose 
     real limitations. For example, allowing the district court 60 
     days after argument to rule does not limit the time a 
     petition may languish on the court's docket before argument.
       Finally, by staying an execution until the Supreme Court 
     denies a petition for certiorari review, the legislation 
     almost assures additional litigation by death-sentenced 
     inmates. Capital litigation will expand to fill anytime 
     allowed. If an execution date cannot be set until after the 
     Supreme Court's disposition of a certiorari petition, the 
     time between the vacating of the stay and the scheduled 
     execution date will afford a petitioner the opportunity to 
     formulate a second round of review, which will have to be 
     resolved regardless of the limitations imposed on successive 
     petitions. By contrast, if a state is able to schedule an 
     execution date to coincide approximately with the filing of a 
     certiorari petition, the initial round of review is likely to 
     be the only round.
       In short, I urge you to support an amendment to the 
     expedited procedures providing for the retention of the 
     certificate of probable cause requirement for the first tour 
     of federal habeas review and eliminating the automatic stay. 
     The provisions of the ``expedited'' federal habeas procedures 
     would lengthen the time between conviction and imposition of 
     sentence beyond the current 8.5 year average for Texas. 
     Indeed, although it is expected that the Texas legislature 
     will, in the immediate future, enact habeas reform that fully 
     complies with the requirements of proposed Sec. Sec. 2256-
     2262, federal habeas review would be expedited by Texas 
     choosing not to ``opt in'' to those provisions.
       In addition, I urge you to support the amendment sponsored 
     by Representative Cox which would require federal habeas 
     courts to defer to state court decisions as long as the state 
     courts acted reasonably in their adjudication of the case and 
     application of federal law. As I noted earlier, the State of 
     Texas expends considerable judicial and law enforcement 
     resources assuring that capital convictions comply with the 
     constitutions of the United States and Texas. Relitigation of 
     issues fully and fairly resolved by the state courts is 
     unnecessary and inappropriate unless those issues have not 
     been reasonably resolved by the state courts in accord with 
     federal constitutional principles.
       Very best wishes,
           Sincerely,
                                                      Dan Morales,
                                                 Attorney General.

  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.
  The CHAIRMAN. The gentleman from Michigan [Mr. Conyers] is recognized 
for 5 minutes.
  Mr. CONYERS. Mr. Chairman, I yield myself 1\1/2\ minutes.
  The gentleman from Texas, with this amendment, has unerringly gone to 
the one part of the McCollum habeas reform matter that we could have 
complimented him on, because he institutes an automatic stay of 
execution while the habeas petition is pending.
  By honing in on this one provision, we are now saying that there will 
not be any need for Federal habeas because the petitioner may be 
executed while his petition is pending. He might not ever live to find 
out that he was granted habeas.
  This is the most ultimately inhumane proposal that we have heard 
tonight.
  It is amazing that we have had these contradictory provisions coming 
from the side of the aisle that wrote the habeas bill that we do not 
like, and now we have these worsening amendments as the night goes on.
  I urge the strong strenuous rejection of this proposal by the 
gentleman from Texas.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may 
consume.
  As has been the case so often this evening, the real question is 
whether we are going to allow those who have been convicted of capital 
crimes to indulge themselves in almost endless appeals. I think the 
American people would answer ``no'' to that question. I think Congress 
should answer ``no'' to that question.
  Mr. Chairman, I yield the balance of my time, 3 minutes, to the 
gentleman from Florida [Mr. McCollum], the chairman of the 
subcommittee.
  Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  I simply wanted to point to everybody here, and I will not consume 
the entire 3 minutes, but the amendment before us provides the 
automatic stay that we are going to routinely have in the bill 
underlying will terminate once 
[[Page H1432]] State court review is completed, if the petitioner fails 
to make a ``substantial showing of the denial of a Federal right'' or 
is denied relief on his petition in the Federal district court or at a 
later stage of Federal habeas review.
  It really is only a statement of what the law truly is and is 
intended to be in a codified form. If somebody does not make a 
substantial showing after denial of a Federal right, there should not 
be any stay. It seems self-evident, but we have had problems 
technically with this during the courts and the process.
  If there is an appeal ongoing and there obviously is a request for a 
stay, if the appeal has any meaning at all, the Federal court is going 
to grant the stay.
  This does not say you cannot have it. It just is not going to be 
automatic. There can be somebody who stops that stay along the process 
before you go through a whole bunch of hoops to go in there and say, 
``Look, this is not a substantial showing of the denial of a Federal 
right. Let's go on and get the execution carried out'' instead of 
having automatic stuff that the statute would otherwise require.
  I think what we did when we wrote this bill was probably err in going 
overboard on these automatic stays, so the gentleman from Texas is 
correcting a flaw in the underlying bill.
  I urge my colleagues to vote for it.
  Mr. SCHUMER. Mr. Chairman, will the gentleman yield for a question?
  Mr. McCOLLUM. I yield to the gentleman from New York.
  Mr. SCHUMER. Mr. Chairman, the question here is, and again being 
mindful of the fact that we do not want to allow endless appeals, but 
let us say that the defendant is in the process of going to the judge 
to ask for an appeal, can the State rush him to execution before that 
appeal is adjudicated one way or another?

                              {time}  2000

  As I understand it, that is the purpose of the automatic stay, that 
you do not have this sort of very obscene sort of beat-the-clock game, 
``we can rush him to do it before you can rush to the judge.'' An 
automatic stay, my understanding has always been, usually works for a 
very short period of time. Again, the great length of appeals that we 
have heard in the cases has been dealt with in the main body of the 
bill, something that I agree with. Now answer that question.
  Mr. McCOLLUM. Reclaiming my time, I would simply say the difference 
is that the stay is not automatic.
  Mr. Chairman, I yield to the gentleman from New York.
  Mr. SCHUMER. I thank the gentleman for his continued generosity in 
yielding.
  My specific question is that: While the defendant's attorney is 
making a petition to the judge, a motion to the appellate judge for 
appeal, could the State execute that gentleman while they are trying to 
get that appeal, under the gentleman from Texas' amendment?
  Mr. McCOLLUM. Theoretically, I suppose that could occur, but it would 
be an awfully fast execution because you could certainly get that 
effort up there very quickly to the courts. That is the way that things 
work. You have people working the midnight oil in all the courts in the 
country and certainly in that State during the time under 
consideration.
  I urge a ``yes'' vote on the gentleman's amendment.
  Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentleman from 
North Carolina [Mr. Watt].
  Mr. WATT of North Carolina. I thank the gentleman for yielding. I 
will not take a minute.
  I would just rise in opposition to this amendment and say that this 
bill already speeds up the appeals process. My amendment that I offered 
that would have tried to redeem people who come forward with evidence 
of innocence was defeated, and now we are going to rush to judgment 
without any stay, and this is just criminal.
  I urge strongly that this amendment be defeated.
  Mr. CONYERS. Mr. Chairman, I yield 1 minute to my colleague, the 
gentleman from New York [Mr. Schumer].
  Mr. SCHUMER. I thank the gentleman for yielding.
  Mr. Chairman, just summing up to my colleagues on both sides of the 
aisle what the gentleman from Florida, Mr. McCollum's answer to the 
question would mean: It would indeed mean that there could in case 
after case be a sort of rush, petitioners' attorneys rushing to get a 
judge to authorize a stay and the State, in many cases, rushing to 
execute the defendants.
  That kind of result, those of us who are for the death penalty, those 
who are against the death penalty, that is not the kind of result we 
would want. And there are better ways to cure the endless appeals that 
have gone on than this. I think this amendment deserves to be defeated 
in a bipartisan way. It just besmirches some of the food efforts the 
gentleman from Florida [Mr. McCollum] is trying to do.
  The CHAIRMAN. The gentleman from Michigan [Mr. Conyers] has 1\1/2\ 
minutes remaining and is entitled to close debate on this amendment.
  Mr. CONYERS. Ladies and gentlemen, we are now taking out the one 
redeeming feature in McCollum habeas reform. I want to just point out 
that the section providing for automatic stays of execution while a 
habeas is pending was a much needed improvement on the current system 
where the fate of a condemned man hangs in the balance while lawyers 
scramble at the last minute to find a judge that will stay the 
execution. We had corrected that.
  Why on Earth he got talked into having that undone at the last minute 
of the final minutes of debate on the floor amazes me. It was the 
gentleman's amendment all the time. Mr. McCollum literally wrote this 
bill. He put in the stay. Now it is being taken out.
  Did we do something wrong? Have we disappointed you in some way?
  Please let us keep the automatic stay feature in. It will not make 
this habeas bill much better, but it will certainly be a lot better 
than going back to the system of lawyers scrambling around looking for 
judges before a person is executed, who may find out or who may never 
find out that his habeas was in fact granted.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Texas [Mr. Smith].
  The question was taken, and the Chairman announced that the noes 
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 241, 
noes 189, not voting 4, as follows:
                             [Roll No. 108]

                               AYES--241

     Allard
     Archer
     Armey
     Bachus
     Baesler
     Baker (CA)
     Baker (LA)
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Brewster
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Coble
     Coburn
     Collins (GA)
     Combest
     Condit
     Cooley
     Cox
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Davis
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Doolittle
     Dornan
     Doyle
     Dreier
     Duncan
     Dunn
     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
     Goodlatte
     Goodling
     Goss
     Graham
     Green
     Greenwood
     Gutknecht
     Hall (TX)
     Hancock
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Holden
     Horn
     Hostettler
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     Livingston
     LoBiondo
     Longley
     Lucas
     Martini
     McCollum
     McCrery
     McDade
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Mica
     Miller (FL)
     Molinari
     Montgomery
     Moorhead
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     Oxley
     Packard
     Parker
     Paxon
     Peterson (MN)
     Petri
     Pombo
     Porter
     Portman
     Pryce
     Quillen
     Quinn
     Radanovich
     Ramstad
     Regula
     Richardson
     [[Page H1433]] Riggs
     Roberts
     Roemer
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roth
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Skeen
     Smith (MI)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Talent
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Tejeda
     Thomas
     Thornberry
     Tiahrt
     Traficant
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Wyden
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                               NOES--189

     Abercrombie
     Ackerman
     Baldacci
     Barcia
     Barrett (WI)
     Becerra
     Beilenson
     Bentsen
     Berman
     Bevill
     Bishop
     Bonior
     Borski
     Boucher
     Browder
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Cardin
     Chapman
     Clay
     Clayton
     Clement
     Clinger
     Clyburn
     Coleman
     Collins (IL)
     Conyers
     Costello
     Coyne
     Cramer
     Danner
     de la Garza
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Durbin
     Edwards
     Ehlers
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Flake
     Foglietta
     Ford
     Frost
     Furse
     Gejdenson
     Gephardt
     Gibbons
     Gilman
     Gonzalez
     Gordon
     Gunderson
     Gutierrez
     Hall (OH)
     Hamilton
     Harman
     Hastings (FL)
     Hayes
     Hefner
     Hilliard
     Hinchey
     Houghton
     Hoyer
     Jackson-Lee
     Jacobs
     Jefferson
     Johnson (SD)
     Johnson, E. B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     LaFalce
     Lantos
     Laughlin
     Levin
     Lewis (GA)
     Lincoln
     Lipinski
     Lofgren
     Lowey
     Luther
     Maloney
     Manton
     Manzullo
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy
     McDermott
     McHale
     McKinney
     McNulty
     Meehan
     Meek
     Menendez
     Meyers
     Mfume
     Miller (CA)
     Mineta
     Minge
     Mink
     Moakley
     Mollohan
     Moran
     Morella
     Murtha
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Orton
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Payne (VA)
     Pelosi
     Peterson (FL)
     Pickett
     Pomeroy
     Poshard
     Rahall
     Rangel
     Reed
     Reynolds
     Rivers
     Rose
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Schumer
     Scott
     Serrano
     Sisisky
     Skaggs
     Skelton
     Slaughter
     Smith (NJ)
     Spratt
     Stark
     Stokes
     Studds
     Stupak
     Tanner
     Thompson
     Thornton
     Thurman
     Torkildsen
     Torres
     Torricelli
     Towns
     Tucker
     Velazquez
     Vento
     Visclosky
     Volkmer
     Ward
     Waters
     Watt (NC)
     Waxman
     Williams
     Wilson
     Wise
     Woolsey
     Wynn

                             NOT VOTING--4

     Andrews
     Collins (MI)
     Frank (MA)
     Yates

                              {time}  2021

  Messrs. DeFAZIO, BEVILL, and JOHNSON of South Dakota changed their 
vote from ``aye'' to ``no.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.
  The CHAIRMAN. Are there other amendments to the bill? If not, the 
question is on the committee amendment in the nature of a substitute, 
as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The CHAIRMAN. Pursuant to the order of the House of yesterday, the 
Committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Quinn) having assumed the chair, Mr. Dreier, Chairman of the Committee 
of the Whole House on the State of the Union, reported that that 
Committee, having had under consideration the bill (H.R. 729) to 
control crime by a more effective death penalty, pursuant to the order 
of the House of Tuesday, February 7, 1995, he reported the bill back to 
the House with an amendment adopted by the Committee of the Whole.
  The SPEAKER pro tempore. Under the order of the House of yesterday, 
the previous question is ordered.
  The previous question was ordered.
  The SPEAKER pro tempore. Is a separate vote demanded on any amendment 
to the committee amendment in the nature of a substitute adopted in the 
Committee of the Whole? If not, the question is on the amendment.
  The amendment was agreed to.
  The CHAIRMAN. The question is on the engrossment and third reading of 
the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             recorded vote

  Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 297, 
noes 132, not voting 5, as follows:
                             [Roll No. 109]

                               AYES--297

     Allard
     Archer
     Armey
     Bachus
     Baesler
     Baker (CA)
     Baker (LA)
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bentsen
     Bereuter
     Bevill
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Borski
     Boucher
     Brewster
     Browder
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Cardin
     Castle
     Chabot
     Chambliss
     Chapman
     Chenoweth
     Christensen
     Chrysler
     Clement
     Coble
     Coburn
     Coleman
     Collins (GA)
     Combest
     Condit
     Cooley
     Costello
     Cox
     Cramer
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Danner
     Davis
     de la Garza
     Deal
     DeLay
     Deutsch
     Diaz-Balart
     Dickey
     Dicks
     Dingell
     Dooley
     Doolittle
     Dornan
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Frost
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Gilman
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Green
     Greenwood
     Gunderson
     Gutknecht
     Hall (TX)
     Hamilton
     Hancock
     Hansen
     Harman
     Hastert
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Holden
     Horn
     Hostettler
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson (SD)
     Johnson, Sam
     Jones
     Kanjorski
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Laughlin
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Lincoln
     Linder
     Lipinski
     Livingston
     LoBiondo
     Longley
     Lucas
     Manton
     Manzullo
     Martini
     Mascara
     McCollum
     McCrery
     McDade
     McHale
     McHugh
     McInnis
     McIntosh
     McKeon
     Menendez
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Molinari
     Montgomery
     Moorhead
     Moran
     Morella
     Murtha
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     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
     Schumer
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Spratt
     Stearns
     Stenholm
     Stockman
     Stump
     Stupak
     Talent
     Tanner
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Tejeda
     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

                               NOES--132

     Abercrombie
     Ackerman
     Baldacci
     Barrett (WI)
     Becerra
     Beilenson
     Berman
     Bishop
     Bonior
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Clay
     Clayton
     Clyburn
     Collins (IL)
     Conyers
     Coyne
     DeFazio
     DeLauro
     Dellums
     Dixon
     Doggett
     Durbin
     Ehlers
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Flake
     Foglietta
     Ford
     Frank (MA)
     Furse
     Gejdenson
     Gephardt
     Gibbons
     Gonzalez
     Gutierrez
     Hall (OH)
     Hastings (FL)
     Hefner
     Hilliard
     Hinchey
     Hoyer
     Jackson-Lee
     Jacobs
     Jefferson
     Johnson, E. B.
     Johnston
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     LaFalce
     Lantos
     Levin
     Lewis (GA)
     Lofgren
     [[Page H1434]] Lowey
     Luther
     Maloney
     Markey
     Martinez
     Matsui
     McCarthy
     McDermott
     McKinney
     McNulty
     Meehan
     Meek
     Mfume
     Miller (CA)
     Mineta
     Minge
     Mink
     Moakley
     Mollohan
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Pomeroy
     Rahall
     Rangel
     Reed
     Reynolds
     Rivers
     Rose
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Scott
     Serrano
     Skaggs
     Slaughter
     Stark
     Stokes
     Studds
     Thompson
     Thornton
     Thurman
     Torres
     Towns
     Tucker
     Velazquez
     Vento
     Visclosky
     Ward
     Waters
     Watt (NC)
     Waxman
     Williams
     Wise
     Woolsey
     Wynn

                             NOT VOTING--5

     Andrews
     Clinger
     Collins (MI)
     Houghton
     Yates

                              {time}  2041

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  

                          ____________________