[Congressional Record Volume 142, Number 45 (Thursday, March 28, 1996)]
[Senate]
[Pages S3151-S3152]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          HABEAS CORPUS REFORM

  Mr. HATCH. Mr. President, just short of a year ago, this country was 
rocked by an attack on the Alfred Murrah Federal building in Oklahoma 
City, OK. In the wake of that horrible, tragedy, this body took up 
antiterrorism legislation. I fought for the inclusion of meaningful 
habeas corpus reform legislation in the Senate bill over the initial 
hesitation of President Clinton. The House bill contains identical 
language. We will shortly be delivering a conference report to the 
President for his signature. At long last, after well over a decade of 
effort, we are about to

[[Page S3152]]

curb these endless, frivolous appeals of death sentences.
  I might add that this is one of the most important criminal law 
changes in this country's history, and it is about time we get it on 
track.
  To be sure, there are many other important antiterrorism measures 
which will be included in the final terrorism bill including increased 
penalties, antiterrorism aid to foreign nations, plastic explosives 
tagging requirements, and important law enforcement enhancements. But 
let us make no mistake about it--habeas corpus reform is the most 
important provision in the terrorism bill. In fact, it is the heart and 
soul of this bill. It is the only thing in the Senate antiterrorism 
bill that directly affected the Oklahoma bombing. If the perpetrators 
of that heinous act are convicted, they will be unable to use frivolous 
habeas petitions to prevent the imposition of their justly deserved 
punishment. The survivors and the victims' families of the Oklahoma 
tragedy recognized the need for habeas reform and called for it to be 
put in the bill.
  The Clinton Administration, which initially opposed meaningful habeas 
corpus reform, came to its senses and the President himself said he 
supported our habeas reform proposal. The antiterrorism bill, with the 
Hatch-Specter habeas proposal passed this body in an overwhelming vote.
  Most of those familiar with capital litigation know that support for 
true habeas reform--support for an end to frivolous death penalty 
appeals--is the most authentic evidence of an elected official's 
support for the death penalty. It is against this backdrop that I was 
surprised to learn recently that on the eve of House debate on the 
antiterrorism bill--a bill that includes this important habeas reform 
proposal--the White House had sent emissaries to key Members of the 
House to lobby for weakening changes to the habeas reform package. 
Former White House Counsel Abner Mikva, accompanied by White House 
staff, met with key Members of the House and proposed that the bill be 
amended to essentially restore the de novo standard of review in habeas 
petitions. This would have gutted habeas corpus reform by allowing 
Federal judges to reopen issues that had been lawfully and correctly 
resolved years earlier. I had thought we had a President who was 
committed to meaningful habeas reform.

  When I first learned of this effort, I was surprised. After all, 
President Clinton promised that justice in the Oklahoma bombing case 
would be swift. Indeed, he recognized that an end to frivolous death 
penalty appeals was critical when he said,

       [Habeas corpus reform] ought to be done in the context of 
     this terrorism legislation so that it would apply to any 
     prosecutions brought against anyone indicted in Oklahoma.

  [Larry King Live, June 5, 1995].
  But then I began to consider all of the steps this President has 
taken to undermine the death penalty. For example, President Clinton 
vetoed legislation late last year which contained language identical to 
the terrorism bill's habeas corpus proposal. Veto message to H.R. 2586, 
the temporary debt limit increase, Nov. 13, 1995. Prior to that, in 
1994, the Clinton Justice Department lobbied the Democrat controlled 
House for passage of the so-called Racial Justice Act. This provision, 
in the guise of protecting against race-based discrimination, would 
have imposed a quota on the imposition of the death penalty. It would 
have effectively abolished the death penalty.
  When the Senate refused to accept this death penalty abolition 
proposal, President Clinton decided to issue a directive implementing a 
so-called Racial Justice Act-type review of all Department of Justice 
decisions involving the Federal death penalty. [Wall Street Journal, 
July 21, 1994]. On March 29, 1995, Attorney General Reno issued the 
directive. Ironically, the Clinton Administration did not see fit to 
provide the victims' families in death penalty eligible cases with any 
right to petition the Department on the issue of whether the death 
penalty should be sought. [A.G. Reno directive on title 9 of the U.S. 
Attorneys' Manual, March 29, 1995].
  To further gauge President Clinton's position on the death penalty 
and the streamlining of habeas corpus reform, one should consider 
whether his Department of Justice has supported State efforts to impose 
capital sentences. According to testimony provided to the Senate 
Judiciary Committee, the Clinton Justice Department considers the fact 
that a case involves the death penalty as a factor against filing 
amicus briefs in support of the State. [Testimony of Paul Cassell, 
Associate Professor of law, University of Utah, November 14, 1995]. The 
Bush Administration filed briefs in support of the State in 44.4 
percent of the cases on appeal where a defendant's death sentence was 
being challenged. Briefs were filed in 42.9 percent of these cases and 
in 1991 and in 37.5 percent of the cases in 1992. In 1994, the Clinton 
Justice Department failed to file a single brief in support of States 
trying to carry out capital sentences. Many of these cases presented 
opportunities to protect the Federal death penalty but the Clinton 
administration sat on its hands.

  On March 14, President Clinton said that, in his opinion, the 
terrorism bill's habeas corpus provision is not as good as it could be, 
and that there are some problems in the way that it's done but that he 
may go along with the version contained in the terrorism bill. [U.P.I. 
March 14, 1996].
  Ironically, President Clinton's support for the terrorism bill seems 
to be dwindling as the likelihood for passage of habeas corpus reform 
seems to be increasing. Some Democrats appear to be preparing to 
scuttle the bill by arguing that it may not go far enough. Indeed, one 
of my colleagues on the other side of the aisle has gone so far as to 
call the House terrorism bill useless. We now hear that there is talk 
within the White House of a possible veto threat unless the terrorism 
bill is changed.
  What I find interesting is that most of the provisions the President 
and his brethren are flexing their muscles over were not in the 
administration's original terrorism bill. For example, the President 
has been critical of the House's bipartisan votes to drop a ban on so-
called cop killer bullets and a provision allowing law enforcement to 
conduct roving wiretaps. On February 10, 1995, Senator Biden introduced 
the administration's original terrorism bill, S. 390. Neither of these 
provisions were contained in S. 390. Indeed, the House-passed terrorism 
bill is more comprehensive than the President's original bill.
  So I ask my colleagues: Why is a bill which is substantially similar 
to--in fact broader than--the original Clinton-Biden bill of 1995 
useless in 1996? Could the fact that the final terrorism bill will 
contain tough, true habeas corpus reform be what's really at issue 
here?
  President Clinton's newfound tough on crime rhetoric must be balanced 
against his administration's record of hostility toward true habeas 
corpus reform. In a few weeks, the Congress will deliver to President 
Clinton a tough terrorism bill which will contain our habeas corpus 
reform provision--a provision to end frivolous death penalty appeals. 
This reform measure has already been vetoed once and President Clinton 
has tried to weaken it. If he chooses to veto the terrorism bill, that 
will be a decision he and the families of murder victims across this 
country will have to live with. But let's not kid ourselves about why 
he may do so. To borrow a phrase--keep your eye on the ball. The ball 
here is habeas corpus reform.

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