[Congressional Record Volume 142, Number 61 (Monday, May 6, 1996)]
[Senate]
[Pages S4716-S4717]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THE SUPREME COURT AND HABEAS CORPUS REFORM

  Mr. HATCH. Mr. President, last Friday, the Supreme Court decided to 
hear a challenge to the constitutionality of the habeas provisions in 
the Anti-Terrorism Act. To examine this issue, the Court chose the 
vehicle of Felker versus Turpin, a case in which the prisoner, Ellis 
Felker, kidnaped, robbed, raped, sodomized, and then killed Evelyn Joy 
Ludlam, a 19-year-old college student who was working as a waitress. 
The Court ordered an expedited briefing and argument schedule, with the 
likely result that the Justices will decide the issues involved by the 
beginning of July.
  Mr. President, I ask the Clinton administration, and in particular, 
its Solicitor General, Drew Days, to vigorously defend the 
constitutionality of our habeas reform. Habeas reform was the heart and 
soul of the Anti-Terrorism Act, and it is the only thing in the act 
that will directly affect the perpetrators of the heinous bombing in 
Oklahoma. Without habeas reform, those who murdered in Oklahoma, like 
other convicted murderers throughout our Nation, will be able to use 
frivolous petitions and appeals to prevent the imposition of their 
justly deserved punishments.
  It is a sad day when we in the Senate must ask the Justice Department 
to vigorously side with the State in a death penalty case. But I am 
afraid to say that we must because of the Clinton administration's 
demonstrated reluctance to support habeas reform and the death penalty. 
Through its Solicitor General, the Clinton administration has failed to 
support State efforts to impose capital sentences--a 180-degree 
turnaround from the policies of the Reagan and Bush administrations. 
For example, in Judiciary Committee hearings led by myself and Senator 
Thompson, we learned that, during the 1994 Supreme Court term, the 
Solicitor General under the Clinton administration failed to file even 
one brief on the side of the State in death penalty cases. As this 
chart makes clear, this is a sharp drop off from the practice

[[Page S4717]]

under the Reagan and Bush administrations, when that number was 42.9 
percent in 1991 and 37.5 percent in 1992.
  The Clinton Solicitor General's failure to defend the death penalty 
is only part of the administration's soft-on-crime litigating 
positions. In case after case, the Solicitor General has refused to 
appeal cases in which the lower courts have overruled the Government, 
have overturned convictions, or have made it difficult to prosecute the 
defendant. Take, for example, the decision in United States versus 
Cheely, in which a panel of Carter judges in the ninth circuit struck 
down the Federal death penalty as unconstitutional. The Clinton 
administration's Solicitor General refused to appeal that case to the 
full ninth circuit or to the Supreme Court. When asked by Senator 
Thompson why no appeal was filed, Drew Days responded that he felt that 
the case did not raise large enough concerns to justify a rehearing.
  Another example is the case of United States versus Hamrick. This is 
the case in which a prisoner sent a mail bomb to a U.S. attorney. 
Luckily, the bomb did not go off. Unluckily, a panel of judges on the 
fourth circuit overturned his conviction for assault with a deadly or 
dangerous weapon because those judges felt the bomb was an incomplete 
bomb and could not go off. Again, President Clinton's Solicitor General 
failed to appeal that decision, and the fourth circuit had to sua 
sponte order a rehearing to reverse that activist decision.
  I could go on. I could describe the Solicitor General's effort to 
narrow the Federal child pornography laws. I could describe the 
Solicitor General's support for lawsuits by prisoners against the 
Arizona prisons. I could describe the drop-off in the Solicitor 
General's support for the State in all criminal cases before the Court. 
I have discussed these cases elsewhere, and I think that the point is 
clear. If the administration were truly serious about fighting crime, 
more than 90 percent of which is prosecuted in State court, then it 
should work harder to toughen the judicially created criminal rules 
that bind both Federal and State law enforcement, prosecutors, and 
courts.
  The Solicitor General's conduct follows the rest of the 
administration's opposition to habeas reform and the death penalty. For 
example, on the eve of House debate on the antiterrorism bill, the 
White House sent emissaries to the Hill to lobby for weakening changes 
to the habeas reform package. Abner Mikva, the former White House 
counsel, lobbied to restore the de novo standard of review in habeas 
petitions, which would allow Federal judges to reopen issues that had 
been lawfully and correctly resolved years earlier.
  Before that, the Clinton Justice Department in 1994 lobbied the 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, the Clinton 
administration issued a directive implementing its substance to require 
a racial review of all Justice Department death penalty decisions.
  The weaknesses of the Clinton administration and of the Solicitor 
General to combat crime and to support the vigorous enforcement of the 
death penalty concern me in this case. The importance of winning this 
case cannot be overstated. One of the keys to winning the war on crime 
is to make clear society's determination to mete out swift, effective 
justice to those who are found guilty of violating its laws. Our habeas 
reform bill will prevent murderers from abusing our procedural system 
to forestall their punishments.
  Because of my concerns about President Clinton's Solicitor General 
and the death penalty, let me announce today that I plan to file an 
amicus brief before the Supreme Court defending the constitutionality 
of habeas reform. I invite all interested Members of both the Senate 
and the House to join my brief. We cannot take the chance that the 
Clinton administration will pull another Cheely.

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