<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:22189.wais]
TERRORIST DEATH PENALTY ENHANCEMENT ACT OF 2005, AND THE STREAMLINED
PROCEDURES ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 3060 and H.R. 3035
__________
JUNE 30, 2005
__________
Serial No. 109-46
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel for Intelligence
and Homeland Security
Michael Volkov, Deputy Chief Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
JUNE 30, 2005
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 4
WITNESSES
Mr. Barry M. Sabin, Chief of Counterterrorism Section for the
Criminal Division, U.S. Department of Justice
Oral Testimony................................................. 7
Prepared Statement............................................. 9
The Honorable Joshua K. Marquis, District Attorney, Clatsop
County, Oregon
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Mr. Ron Eisenberg, Deputy District Attorney, Philadelphia,
Pennsylvania
Oral Testimony................................................. 89
Prepared Statement............................................. 90
Mr. Bernard E. Harcourt, Professor of Law/Faculty Director of
Academic Affairs, University of Chicago
Oral Testimony................................................. 94
Prepared Statement............................................. 97
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 5
APPENDIX
Material Submitted for the Hearing Record
Letter from Michael Israel, Editor, Criminal Justice Washington
Letter, to the Honorable Howard Coble, a Representative in
Congress from the State of North Carolina, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security, and
the Honorable Robert C. Scott, a Representative in Congress
from the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 140
TERRORIST DEATH PENALTY ENHANCEMENT ACT OF 2005, AND THE STREAMLINED
PROCEDURES ACT of 2005
----------
THURSDAY, JUNE 30, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chair of the Subcommittee) presiding.
Mr. Coble. Good afternoon, ladies and gentlemen. The
hearing will come to order.
I have good news and bad news. The good news is we are all
here in place. The bad news is, Mr. Scott, I am told that there
will be a series of votes imminently, so we will play that by
ear and then play that card which was dealt to us.
Before I give my opening statement, and before I recognize
Mr. Scott, much interest has been indicated in this issue, and
some Members of the Subcommittee have requested a second
hearing, and we will in fact conduct a second hearing. I'm not
sure when that will be, but there will be a second hearing
conducted.
I want to welcome everyone to this hearing on the death
penalty in America. The issue of the death penalty in our
country continues to spark significant debate. The American
people believe in the death penalty, especially for
terrorists--strike that. Many American people believe in the
death penalty, especially for terrorists who have killed
Americans. I am convinced that we must be vigilant in ensuring
that capital punishment is meted out fairly against those truly
guilty criminals.
In the last session of Congress we enacted the Justice for
All Act, a far-reaching measure which provided additional
safeguards of our death penalty system for post-conviction DNA
testing of evidence and improvements in our capital counsel
system. This was a matter you all remember that was co-
sponsored by our Chairman of the full Committee, Mr.
Sensenbrenner, and Mr. Delahunt. And I think, Bobby, you co-
sponsored it as well, or did you? The DNA. And Mr. Scott and I
were co-sponsors of that as well.
The integrity of our criminal justice system, and in
particular our death penalty system, has been enhanced by the
enactment of this measure. Despite these improvements, some
death penalty opponents continue to argue that the system is
broken and that the death penalty system is unfair.
I am concerned about the manner in which the debate is
being conducted in some instances. Some death penalty opponents
have, in some cases, used some disinformation or even deceptive
information on occasion to suggest that the death penalty in
our country is not accurate. Yet no credible evidence has been
provided, known to me, to suggest that a single innocent person
has been executed since the Supreme Court imposed the
heightened protections in 1976.
We now have in place greater safeguards and technologies to
ensure accuracy at the most important phase of a prosecution;
that is, the trial. Aside from the protection of the public and
the just punishment of the guilty, our death penalty system
vindicates the rights of victims and their families to see that
justice is in fact done.
Often during the debate of the death penalty the rights of
victims and their need for closure is minimized, or in some
instances ignored.
Today we are also examining two important proposals, the
first introduced by Representative Carter, the gentleman from
Texas, a former Member of the Judiciary Committee. H.R. 3060,
the ``Terrorist Death Penalty Enhancement Act of 2005,'' adds
the death penalty for a number of terrorist attacks, including
weapons of mass destruction, atomic bombs, guerrilla violence,
missiles, and other means of attack. The House passed many of
these provisions in the last session of Congress, but they were
dropped during the conference with the Senate on the
Intelligence Reform bill.
In addition, Representative Carter's bill proposes to treat
terrorism crimes similarly under our Federal death penalty
statute to espionage and treason crimes where a terrorist crime
creates a grave risk of harm to our country.
Today we are also examining Representative Lungren's
proposal, H.R. 3035, the ``Streamlined Procedures Act of
2005,'' which reforms habeas corpus review of State court
convictions.
The Subcommittee in the judicial security hearing, and in
examining child crimes, and even last Congress during
consideration of the Justice for All Act, has gathered a
substantial amount of evidence showing that the Federal court
habeas review, particularly in the death penalty area, has
suffered from extraordinary delays, some I am told as long as
15 years, for a pending habeas petition to be resolved by a
single Federal judge, a misguided application to precedent to
frustrate the ends of justice in some instances.
I look forward to hearing from today's witnesses, and I am
now pleased to recognize my friend, the distinguished gentleman
from Virginia, the Ranking Member of the Subcommittee, Mr.
Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you in convening this hearing. I would want to make one
comment, though, on the death penalty. When you suggest that no
innocent people have been executed, it is a fact that some
people have been executed, and there has been evidence that
could show whether we executed the right man or not. And in
some States they will destroy the evidence, in others they will
refuse to release the evidence, so you can't find whether they
were correct or not. And furthermore, there are a lot of cases
where people have been put on death row, and but for DNA
evidence they would have been executed. DNA evidence not only
in some cases confirmed innocence, but also pointed to the
actual perpetrator.
Mr. Coble. Would the gentleman suspend a moment?
Mr. Scott. Yes.
Mr. Coble. Now, are you talking, Mr. Scott, from 1976 or
prior to 1976? I was going post 1976.
Mr. Scott. People have been released from death row since
1976, yes, because they have been found innocent through DNA
evidence; fair trial, everything else, just had the wrong man.
And DNA evidence revealed, exposed the fact that not only did
they not do it but also pointed out the one that did.
Now, there is no reason to suspect that people for whom
there is no DNA evidence are innocent at any smaller percentage
than those for which you lucked out and do have DNA evidence.
And so those who have suggested no innocent person has not been
executed I think cannot make that case credibly.
But I must say, though, Mr. Chairman, that this hearing has
somewhat evolved from what it started with. It started with a
hearing where a main focus would be whether or not there was
any deterrence value on the death penalty. It has changed to
one in which I found the primary issue to be whether the writ
of habeas corpus should be essentially eviscerated through H.R.
3035, the so-called Streamlined Procedures Act.
Because of the devastating implications of this bill, and
because I am restricted to calling only one witness for this
hearing who only has 5 minutes to make his case, the entire
focus of our witness had to be devoted to this issue, the
habeas corpus issue. This means that the deterrence issue and
H.R. 3060, the Terrorist Death Penalty Act, could not be
addressed. And that is unfortunate because there is valuable
information that needs to be on the record regarding both of
these issues, and therefore I feel that we need a separate
hearing on this issue. And I want to thank you, Mr. Chairman,
for committing to having that separate hearing.
From the initial discussions of our counsels on the
hearing, I fully expect that the future witnesses will be those
who will be researching the deterrence issue. And I expect one
of those--I expected one of those witnesses to be Joanna
Shepard or one of her colleagues who would be an economist. She
has since qualified her original finding that the death penalty
reduced crime following a tirade of criticism and challenges
from social scientists and criminal justice researchers. She
had stated that executions have an overall deterrent value on
the national level, but critics pointed out that her analysis
was failed. She has subsequently concluded, as I understand it,
that of the 27 States that have had at least one execution
during their study period, capital punishment deterred murder
in 6 of those States. However, the study suggested that it
increased murder in 13 States, or twice as many; in 8 States it
had apparently no effect. So on 22 percent of the States
executions had a deterrent effect. In contrast, almost 80
percent of the States had either no effect or it actually
increased crime.
She concluded that her previously established, quote,
deterrent effect had come from 6 States with high execution
rates. And if you are going to draw that conclusion, unless you
go to those high execution rates in a handful of States, you
are better off with no death penalty at all.
H.R. 3035 represents a radical restructuring of traditional
applications of the habeas corpus, one of the founding
principles of our country. We will hear some issues and
problems presented by this bill from our witness, Professor
Harcourt, but we really need to focus more attention on the
implications of this bill before proceeding further on it.
And so, Mr. Chairman, I look forward to the testimony of
our witnesses today and look forward to working with you in our
next hearing.
Mr. Coble. I thank you, Mr. Scott.
We have been joined by the distinguished gentleman from
Michigan, the Ranking Member of the full Committee Mr. Conyers,
and the distinguished gentleman from Florida and Ohio,
respectively, Mr. Feeney and Mr. Chabot, and the gentleman from
California, Mr. Lungren.
It is customary to reserve opening statements to Mr. Scott
and to me, but when the Ranking Member of the full Committee
attends our hearing, I am pleased to recognize him for an
opening statement if he has one. Mr. Conyers.
Mr. Conyers. Thank you, Chairman Coble. I come here to wish
that these two bills had been the subject of separate hearings
because they are both complex and both very important.
Mr. Coble. Would the gentleman suspend?
Mr. Conyers. With pleasure.
Mr. Coble. Mr. Conyers, before you came--and you may know
this--we have also agreed to have a second hearing on these
issues as well.
Mr. Conyers. Yes, thank you. I am happy to know that.
We are dealing with the death penalty, and I have heard the
Ranking Subcommittee Member make some important points about
it, with which I associate myself, but in the end, the inherent
problems with the death penalty is that it sometimes has a
reverse deterrent effect and may in fact create martyrs,
especially when terrorist-type cases--the Timothy McVeigh
situation. There are now over a hundred Americans that have
been sentenced to death, only later to be exonerated, which
suggests that many of the people convicted and sentenced to
death may actually be innocent.
And then in terms of the habeas corpus and stripping
Federal courts of their jurisdiction is a very serious matter.
Single-handedly, this measure would virtually eliminate the
ability of the Federal courts to determine Federal
constitutional issues in cases involving prisoners either
facing death sentences or serving prison terms. And let's see,
the Supreme Court decisions--one, two, three at least--would be
overturned, and I think additionally would undermine the
overall independence of the Federal judiciary.
I think these matters, both the proposals, contain bad
policy, and I look forward to the hearings and ask unanimous
consent to insert my statement into the record.
Mr. Coble. Without objection, the statement will be
inserted into the record.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
H.R. 3060 offers a solution for a problem and culture that is
obviously sorely misunderstood. While it pretends to make us safer, in
reality it undermines the solid bit of information that we do know.
For example, we know--thanks to the testimony of the majority's own
witness last Congress--that there is no scientific evidence indicating
that terrorists will actually be deterred by the threat of capital
punishment.
We also know, that with the addition of each new death penalty, we
decrease the likelihood of international cooperation and assistance in
our efforts to bring suspected terrorists to justice.
Finally, we know--as a result of the events surrounding the
execution of convicted Oklahoma City bomber Timothy McVeigh that the
execution of terrorists could actually have a reverse deterrent effect
through the creation of ``martyrs.''
In the end, the inherent problems with this bill are the same as
those found in many other bills involving the death penalty. Namely,
that the system is flawed, defendants rarely receive adequate legal
representation and that its application is racially discriminatory.
There are now over 100 Americans that have been sentenced to death,
only later to be exonerated. Proving that many of the people convicted
and sentenced to death are actually innocent.
Turning attention away from H.R. 3060 and to H.R. 3035, the
addition of this bill to the scope of today's hearing proves that the
real issue confronting us is about far more than reducing crime and
preventing terrorism. As H.R. 3035 clearly demonstrates, it's really
about undermining the role of habeas corpus and stripping federal
courts of their jurisdiction to determine many federal issues.
Singlehandedly, this bill would virtually eliminate the ability of
federal courts to determine federal constitutional issues in cases
involving prisoners either facing death sentences or serving prison
terms. It would overturn a whole series of Supreme Court decisions;
including Rhines v. Webber (125 S.Ct. 1528)(2005), Artuz v. Bennett
(531 U.S. 4)(2000), and Carey v. Saffold (593 U.S. 927)(2003). And, it
would considerably undermine the overall independence of the federal
judiciary.
Quite interestingly, proponents of this bill are some of the same
Members of Congress who advocated for the expansion of federal
jurisdiction in the case of Terri Schiavo. Now, just a few days later
they seek to drastically eliminate it for a countless number of
individuals presently involved in our criminal justice system.
Bad politics makes for bad policy. These bills are both. I strongly
urge my colleagues to oppose these two measures.
Mr. Coble. Gentlemen, it is the practice of the
Subcommittee to swear in all witnesses appearing before us, so
if you would please stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative. You may be seated.
We have a very distinguished panel, ladies and gentlemen,
let me introduce them to you. We have four distinguished
witnesses today. Our first witness is Mr. Barry Sabin, Chief of
the Counterterrorism Section of the Criminal Division of the
Justice Department. Prior to beginning this role Mr. Sabin
served as a Federal criminal trial attorney in the United
States Attorney's Office in Miami, Florida, where he held a
number of supervisory positions, including the Chief of the
Criminal Division and chief of the major prosecutions in the
violent crime session.
Prior to joining the Justice Department, he was a
litigation associate at Stroock & Stroock & Lavan. Mr. Sabin
received his Bachelor's and Master's Degrees from the
University of Pennsylvania and his law degree from the New York
University School of Law.
Our second witness is the honorable Joshua Marquis,
District Attorney General for Clatsop County in Astoria,
Oregon. If you will permit me a point of personal privilege,
Mr. Marquis, back in the dark ages I served with the Coast
Guard at the mouth of the Columbia River, which is your town,
and I very much enjoyed being there where it rained just about
every day, but I still enjoyed my time on the Columbia River.
Mr. Marquis has been a district attorney since 1994 and has
been elected three times since then. He has worked as a
prosecutor and defense attorney in Oregon for 20 years. He is
past President of the Oregon District Attorney Association and
a member of the board of directors of the National District
Attorneys Association, where he is chair of that group's
Capital Litigation Committee. Mr. Marquis received his
undergraduate and law degrees from the University of Oregon.
Our third witness today is Mr. Ronald Eisenberg, the Deputy
District Attorney in the Philadelphia District Attorney's
Office. Mr. Eisenberg supervises the Law Division, which
consists of 60 attorneys. From 1986 through 1991 he was chief
of the Appeals Unit in Philadelphia. Previously Mr. Eisenberg
served on the Task Force on Death Penalty Litigation of the
Third Circuit Court of Appeals and has helped to draft Federal
legislative proposals concerning habeas corpus reform and DNA
testing. He was awarded his Bachelor's Degree from Haverford
College and earned his JD at the University of Pennsylvania
School of Law.
Our final witness today is Mr. Bernard Harcourt, Professor
of Law and Faculty Director of Academic Affairs at the
University of Chicago. Professor Harcourt's scholarship focuses
on crime and punishment, and he is the author of ``Language of
the Gun: Youth, Crime and Public Policy.'' Previously he
practiced law at the Equal Justice Initiative from 1990 to
1994, where he represented death row inmates.
Following law school, he clerked for the honorable Charles
Haight, Jr. of the U.S. District Court for the Southern
District of New York. Professor Harcourt received his
undergraduate degree from Princeton and his JD and PhD Degrees
from Harvard.
We have now been joined by the distinguished gentleman from
Massachusetts, Mr. Delahunt. Good to have you with us. And I
apologize to those in the audience for my lengthy introduction,
but I think it benefits all of us to know the outstanding
backgrounds and resumes of these gentlemen who will be
testifying this afternoon. And the distinguished gentleman from
Wisconsin, Mr. Green, has joined us as well.
Gentlemen, as you all have been previously informed, we
operate under the 5-minute rule here. The panel that appears
before you, the green light is safe waters for you. That green
light will turn to amber. And when the red light appears, that
is your warning that 5 minutes have expired and Mr. Scott and I
may come down after you. I say that figuratively speaking, of
course. But if you could confine your remarks to the 5 minutes.
We impose the 5-minute rule against ourselves as well, so if
you could keep your responses to our questions as terse as
possible. Your testimony has been reviewed and will be re-
reviewed.
Mr. Sabin, we are happy to recognize you to lead off.
TESTIMONY OF BARRY M. SABIN, CHIEF OF COUNTERTERRORISM SECTION
FOR THE CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Sabin. Thank you, Mr. Chairman.
Mr. Chairman, Ranking Member Scott, Members of the
Committee, thank you for the opportunity to testify at this
important hearing.
I am provided the opportunity to discuss with you the
Department of Justice's views on this legislative effort to
strengthen penalties for the commission of grave offenses
committed by terrorists against the American people and our
interests.
The Department of Justice has been committed to the
investigation of violent crimes carried out by terrorists
against Americans, both within our borders and overseas, for
more than a generation. This commitment to the investigation of
terrorist attacks has resulted in a considerable number of
prosecutions of those who are responsible for bombings,
kidnappings, murders and assaults against Americans overseas
since the 1980's, as the Department has attempted to use all
available legal tools in the fight against terrorism.
As the fight continues, prosecutors must be equipped with
every possible legal weapon to help to prevent and deter
terrorist conduct before it results in violent action, to
severely punish such conduct when it does occur, and to help
victims of terrorist crimes by seeking justice on their behalf.
Title I of the Terrorist Death Penalty Enhancement Act of
2005 enhances the existing legal arsenal to ensure that those
responsible for the most serious criminal conduct against
Americans, conduct that results in death or creates a grave
risk of death, will be punished commensurate with the gravity
of that crime.
Let me take this opportunity in my oral statement to focus
generally on section 103 of the bill, death penalty procedures
for certain air piracy cases. My written statement addresses
other provisions of the bill under consideration, particularly
title III. There are also several other significant changes to
the Federal capital punishment statutes that should be
considered. The Department stands ready to work with the
Committee on these matters.
The Department supports section 103 of the bill, which
would permit the imposition of the death penalty upon an
individual convicted of air piracy offenses resulting in death
where those offenses occurred after enactment of the
Antihijacking Act of 1974, but before the enactment of the
Federal Death Penalty Act of 1994. This provision would cover a
small, but important category of defendants, including those
responsible for the December 1984 hijacking of Kuwait Airways
Flight 221 and the murder of two American United States Agency
for International Development employees, the June 1985
hijacking of TWA Flight 847 and the murder of a Navy diver, the
November 1985 hijacking of Egypt Air Flight 648 and the murder
of an American servicewoman as well as 56 other passengers, and
the September 1986 hijacking of Pan Am Flight 73 and the murder
of American citizens Rajesh Kumar and Surendra Patel as well as
at least 19 other passengers and crew and the injury of over
one hundred others.
Section 103 is important to reaffirm the intent of Congress
to have available the ultimate penalty to use against aircraft
hijackers whose criminal actions result in death. In 1974,
Congress enacted the Antihijacking Act in response to Furman v.
Georgia to ensure that comprehensive procedures were available
so that the death penalty could be constitutionally enforced.
Over the years, the crime of air piracy was repeatedly cited by
Members of Congress and the executive branch as an example of
crime for which Congress has enacted the necessary
constitutional provisions to enforce the death penalty.
In 1994, in an effort to make the death penalty widely
available for numerous Federal offenses and to enact uniform
procedures to apply to all Federal capital offenses, Congress
passed the Federal Death Penalty Act of 1994, explicitly
including air piracy procedures among the list to which it
applies, at the same time repealing the former death penalty
procedures of the Antihijacking Act of 1974. The problem with
this legal development is that there is a perceived gap in
legislative intent to maintain the option of a death penalty
for those who committed air piracy resulting in death before
enactment of the FDPA.
Let me briefly discuss the circumstances that brought this
issue to light. On September 29 of 2001, the United States
obtained custody of Zaid Hassan Abd Latif Safarini, the
operational leader of the deadly attempted hijacking of Pan Am
Flight 73, a crime which occurred on September 5, 1986 in
Karachi, Pakistan. Safarini personally executed the first
United States citizen, and after a 16-hour standoff he and his
fellow hijackers opened fire on approximately 380 passengers
and crew on board Pan Am 73, attempting to kill all of them
with grenades and assault rifles. In 1991 Safariniand his co-
defendants were indicted by a grand jury in the District of
Columbia, and after being brought to the United States for
trial in 2001, the prosecutors filed papers stating the
Government's intention to seek the death penalty against
Safarini. The district court, however, ruled that the
Government could not seek the death penalty in this case or by
implication in any other air piracy case from the pre-FDPA
period, essentially because Congress had not made clear which
procedures should apply to such prosecution. In its ruling, the
court noted that at the time it passed FDPA in 1994 Congress
does not state any intention as to whether the new capital
sentencing procedures should be applied to air piracy offenses
occurring before enactment of the FDPA----
Mr. Coble. If you would rap up pretty soon, Mr. Sabin.
Mr. Sabin. Section 103 of this bill addresses the issues
identified by the district court in the Safarini case by
explicitly stating that Congress intends for the provisions of
the FDPA to apply to this category of defendants, while also
explicitly preserving for such defendants the two provisions of
the Antihijacking Act.
I thank the Committee again for holding this hearing and
considering this legislation. The Department very much wants to
work with Congress to ensure that those who commit serious
terrorist crimes are punished to the fullest extent under the
law no matter how long it takes to see that justice is done.
[The prepared statement of Mr. Sabin follows:]
Prepared Statement of Barry M. Sabin
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. The gentleman's time has expired.
Mr. Marquis.
TESTIMONY OF THE HONORABLE JOSHUA K. MARQUIS, DISTRICT
ATTORNEY, CLATSOP COUNTY, OREGON
Mr. Marquis. Thank you, Mr. Chairman. Thank you for
inviting me here today.
As you have indicated, I am from Astoria, the classic
county. It is where Lewis and Clark ended their trail 200 years
ago. And my wife's family is from your State, and she
constantly complains about the rain all the time, so--but you
are all welcome to come.
I have been a trial lawyer for 20 years, and I've had the
unusual experience of having served as lead counsel as both a
prosecutor and as a defense attorney in capital cases. I have
co-authored a book on the death penalty, and I debate this
subject around the United States and Europe. And with all due
respect to the Chair, I am a lifelong Democrat. I have never
voted for a Republican for President, and probably won't.
Mr. Coble. Mr. Marquis, as Mr. Scott will tell you, he and
I get along--and Mr. Delahunt as well, and Mr. Conyers. We all
get along pretty well, despite their shortcomings.
Mr. Delahunt. No apologies here.
Mr. Marquis. Well, I mention that only to make clear that I
think this discussion transcends traditional liberal
conservative or Republican-Democrat issues. There needs to be
something very vigorous in a discussion as serious as the death
penalty, and when we're talking about the State taking lives,
even particularly those of terrorists. And there are people of
good will on both sides of this issue, but it is very critical
that we have an honest debate and, as Mr. Scott says, I am here
to talk today about deterrence primarily.
In my written statement I detail what I consider a series
of urban legends that exist about the death penalty in the
United States. Basically the death penalty is crowded with
innocent men--mostly men, there's a few women. Nothing could be
further from the truth. The capital justice system in the
United States, like all other parts of the system, is not
without its faults. There is no human endeavor that is not.
A death sentence is handed down in the United States, since
1976, in approximately one out of every thousand murders. So we
are talking about a very rare occasion--and it should be a rare
occasion. Even Judge Jed Rakoff of the U.S. District Court of
New York, who ruled the death penalty unconstitutional because
he claims so many innocent people might be executed, has
conceded that the number is about 30 of the 8,000 people
sentenced to death since Gregg in 1976. That would be the error
rate at about, I think, one-third of 1 percent. And frankly,
you have a better chance of being killed by your pharmacist or
elective surgery than you do of a faulty death penalty. And as
the Chairman mentioned, the number of people who have been
found innocent, who have later found out to be executed--and
there were those before
1976--that number since 1976 is zero, despite very hard
work by a lot of death penalty opponents to try to prove that.
Now even more compelling, I think, in the context of this
hearing, is what will happen if we fail to condemn the worst of
the worst in our society. There is a study just out by a very
noted liberal or progressive professor from the University of
Chicago--I believe, in fact, he is a colleague of Professor
Harcourt--named Cass Sunstein, who has just published a very
provocative paper called, ``Is Capital Punishment Morally
Required?'' and he cites an increasing cluster of studies which
show a clear deterrent effect between the death penalty and
reductions in murders, and asks, what will we say to the
families of murder victims when we could have prevented those
people's deaths? And he makes the point more eloquently than I
can that we have about 50 executions a day in the United
States, and they are conducted very capriciously and they are
not conducted by the Government.
Unfortunately, we do know the names of people, innocent
people killed as a result of our failure to have the death
penalty. Ask the families of Kenneth McDuff's victims from
Texas on death row; out again, killed seven people. Or I am
sure Attorney General Lungren remembers Robert Massey in
California, on death row, released; he rewards the man who
gives him a job by killing him. He was eventually put to death.
In my written testimony, I detail a popular movie and play
called ``The Exonerated,'' which claims to chronicle the story
of six people on death row who are now off death row who they
claim to be innocent. The problem is that two of those two
people pled guilty, and the third one is not available to do
press tours right now because he's doing time in New York for a
murder he pled guilty to, which is identical to the one for
which he was acquitted, and for that reason he was exonerated.
There is a very good reason that the opponents of the death
penalty use words like ``exonerated'' and ``innocent.'' they
are very powerful words, they mean something very significant,
and I think to use that word when it is not appropriate
dishonors the names of the people who really were innocent. And
Mr. Scott will point out there have been people who have been
on death row who have been innocent, and that is something we
need to work very hard against.
I see that I have very little time remaining. I want to
briefly touch on the issue of race because I think it is very
important.
There is also a very common belief the death penalty is
inherently racist. And I recommend a study, again by a group of
academics who are against the death penalty, from Cornell
University last year who showed that the traditional theories
that the so-called South is a death belt is simply not true. In
fact, States of the Confederacy tend to fall below the average.
Oregon, my State, is just above, and Texas is just below. The
States with the highest rates of death penalty are Ohio and
Delaware and Nevada.
The larger issue is how we can achieve a flawless system,
and I don't think we're going to be able to do that. Support
for the death penalty does not mean that you enthusiastically
support capital punishment. And again, the fear of offending
perhaps the pro-life members, I am pro-choice, I amfor the
death penalty in the same way I am for abortion; I would rather
not see abortions and I would rather not see capital punishment
but I think it is something that is a necessity.
Thank you very much for inviting me today.
[The prepared statement of Mr. Marquis follows:]
Prepared Statement of Joshua K. Marquis
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Thank you very much, Mr. Marquis. And for my
geographic edification, Mr. Marquis, from where does your wife
hail in North Carolina?
Mr. Marquis. Charlotte, sir.
Mr. Coble. That is our largest city.
Mr. Marquis. And my parents went to school at Black
Mountain.
Mr. Coble. I know it well.
Mr. Eisenberg.
TESTIMONY OF RON EISENBERG, DEPUTY DISTRICT ATTORNEY,
PHILADELPHIA, PENNSYLVANIA
Mr. Eisenberg. Thank you, Mr. Chairman, and Members of the
Committee. Mr. Chairman, for your information, my wife actually
lives in Greensboro at this moment, and I hope to be able to
join her there in the future.
Mr. Coble. My district, and I will give you all the time
you want.
Mr. Eisenberg. Mr. Chairman, I have served as a prosecutor
for 24 years. I am the supervisor in the law division in the
Philadelphia District Attorney's Office. It is a group of 60
lawyers. Many of them handle regular State court appeals, but
more and more of them have to devote themselves exclusively to
Federal habeas corpus work. In fact, in the last decade the
number of lawyers handling just Federal habeas corpus review of
State court convictions in my office has increased by 400
percent.
Now, too often the debate about the proper scope of Federal
habeas corpus review comes down to disagreement about the value
of the death penalty and the justice of imprisonment and
punishment generally. And to be sure, many Federal courts seem
flatly unwilling to affirm capital sentences. That is certainly
true of my jurisdiction in Pennsylvania where almost every
single contested death sentence litigated on habeas corpus
review has been overturned by Federal courts; over 20 cases,
only one has been affirmed. But the problem I want to address
today is not simply one of results, and Federal court intrusion
to State court convictions cannot be justified either by
opposition to the death penalty or as vindication of civil
rights. The truth is that whether or not they actually reverse
a conviction, Federal habeas corpus courts drag out litigation
for years of unjustifiable delay, creating exorbitant cost for
the State and endless pain for the victims.
We have detailed several of these cases in my written
testimony, Your Honor. The most prominent and perhaps our most
prominent death penalty defender from Philadelphia is a cop
killer named Mumia Abu-Jamal. Now he has become a famous person
around the world. There is a lot of disagreement about his
alleged innocence, but we are just trying to get his case
litigated through the courts.
This murder occurred in 1981. It was just around the time
when I started in the DA's office. I helped work on the trial
of that case, and now I am working on his Federal habeas corpus
review, and we're not close to done. Several years ago a United
States District Court judge granted him a new sentencing
hearing, threw out the death penalty but affirmed the
conviction, rejecting all of his claims of innocence. That was
in 2001--that ruling was in 2001. We appealed it, and we
haven't even gotten close to a ruling yet. In fact, the court
hasn't even allowed us to file our briefs in that case almost 4
years later. That is on top of the two decades of delay we had
before we even got to that ruling in 2001 in this case. Now it
is closing in on 25 years, haven't been able to file our briefs
in the Third Circuit Court of Appeals.
We have several other cases of the same nature where cases
sit for years waiting for elementary procedural steps to occur
in Federal court, not just for decisions to be made, not just
for briefs to be mulled over and carefully considered, but even
for elementary preliminary decisions to be made about allowing
the filing of papers. This happens in case after case, and it
happens even in cases, as we have detailed in the written
testimony, where the defendant himself doesn't want to
challenge his conviction. Where even the defendant says, I want
to give up my Federal habeas corpus appeals, the Federal courts
will not allow him to, and lengthen and stretch out the
litigation, despite the wishes of the defendant himself.
Now, from talking to my colleagues around the country, I
know that their experiences are similar, and I think that these
cases demonstrate the inherent imbalance in the exercise of
Federal habeas corpus review over State criminal convictions.
Federal courts have great power simply because they're last
in line when it comes to our cases, but they have little
responsibility because they're so far removed in time and space
from the circumstances of the crime and the subtleties of the
State proceedings. Accordingly, they have small motive to act
expeditiously or efficiently to give credit to the judgments of
their brethren in the State courts or to consider the needs of
crime victims.
Bill No. 3035, the ``Streamlined Procedures Act of 2005,''
will address all of those issues and will prevent Federal
courts from stretching out these cases in ways that no one on
either side of the underlying questions can really debate, it
seems to me. Whether you are against the death penalty or for
it, I don't know how you justify a case like Mumia Abu-Jamal
sitting waiting for a briefing to occur for 4 years. That is
the kind of reform that this bill will enact, and we urge your
support.
Thank you.
[The prepared statement of Mr. Eisenberg follows:]
Prepared Statement of Ronald Eisenberg
I am a deputy district attorney in Pennsylvania, and I am here to
talk about what really happens when state court convictions are
subjected to habeas corpus review in the federal courts.
I have served as a prosecutor for 24 years. I am the supervisor of
the Law Division of the Philadelphia District Attorney's Office, a
group of 60 lawyers. Many of those lawyers handle regular appeals in
the Pennsylvania appellate courts. But more and more of our attorneys
must devote themselves full time to federal habeas corpus litigation.
In the last decade, the number of lawyers employed exclusively on
habeas work has increased 400%. The convictions that reach federal
habeas review are for the most serious crimes that can be committed
against a human being--murder, rape, violent robberies and burglaries,
serious beatings and shootings.
Too often, the debate about the proper scope of federal habeas
corpus review comes down to disagreement about the value of the death
penalty, and the justness of imprisonment and punishment generally. To
be sure, many federal courts seem flatly unwilling to affirm capital
sentences. In Pennsylvania, for example, almost every single contested
death sentence litigated on habeas--over 20 cases in the last decade--
has been thrown out by federal judges; only one has been upheld.
But the problem is not simply one of results, and federal court
intrusion into state convictions cannot be justified either by
opposition to the death penalty or as vindication of civil rights. The
truth is that, whether or not they actually reverse a conviction,
federal habeas courts drag out litigation for years of utterly
unjustifiable delay, creating exorbitant costs for the state and
endless pain for the victims. Here are just a few examples of what it's
like.
Mumia Abu-Jamal
Over two decades ago, in December 1981, Mumia Abu-Jamal murdered
Officer Danny Faulkner during a traffic stop. First he shot the officer
in the back; then, after the officer fell to the ground, he shot him in
the face. In 2001, after twenty years of litigation, a federal district
judge upheld the first degree murder conviction but overturned the
sentence of death. Both sides appealed. And there the matter has sat
for going on four years. No decision; no oral argument; not even a
briefing schedule, which is normally the very first step in the
appellate process.
The defendant has become famous over all this time; he has managed
to turn himself into a celebrity. But no matter where one comes down on
this case, how is it possible to justify a federal habeas process that
does not even begin to resolve an appeal--let alone actually resolve
it--after four years' time? Even if one buys Mumia's ever-changing,
bogus claims of innocence, why does he sit in jail while nothing
happens? And what about the widow Danny Faulkner left behind?
William Holland
This kind of delay is hardly unique to high-profile cases like
Jamal. William Holland is not famous. Holland broke into the home of a
woman in 1984. He tied her up, raped her, and stabbed her repeatedly.
The victim was 71 years old. Holland had two full rounds of appeals in
state court, but his claims were unsuccessful. A federal court judge
nonetheless threw out his death sentence in 2001. The prosecution
immediately appealed. And ever since, the federal appeals court has
been dallying about what issues it will allow the defendant to raise--
if and when it ever gets around to looking at any. No briefs have been
filed, no argument has been held, no decision has been rendered.
Joseph Kindler
In 1982, Joseph Kindler kidnapped a witness who was scheduled to
testify against him in a burglary trial. Kindler beat the man over the
head with a baseball bat, hit him with an electric prod, put him in the
trunk of a car, drove him to a river, tied a cinder block around his
neck, and drowned him. After his conviction and sentence of death,
Kindler sawed through a barred window and escaped from prison. He fled
to Canada, which has no death penalty. After his arrest there, he
escaped from prison again, and was re-apprehended only after his
appearance on ``America's Most Wanted.'' He then fought extradition for
several years, until his eventual (and quite involuntary) return to
this country.
Once back, Kindler pursued appeals, but the state courts ruled that
he had forfeited his right to do so by virtue of his escapes from legal
process. The federal habeas courts, to which Kindler turned in 1999,
were more indulgent. The district court immediately granted a stay of
execution, even though the state had not yet scheduled any execution.
The prosecution appealed the stay, the parties filed briefs--and
nothing happened. Two years later, after prodding by the prosecution,
the federal appeals court finally scheduled oral argument in 2001,
vacated the stay of execution, and sent the case back to the lower
court to consider the legal claims that had been rejected by the state
courts.
True to form, the lower federal court then overturned Kindler's
death sentence, after two more years of litigation. The state appealed
this 2003 ruling, and the case has now been pending on appeal for
another two years.
Donald Hardcastle
During a burglary in 1982, Donald Hardcastle murdered an elderly
couple and set their house on fire. Each victim had been stabbed over
30 times. Hardcastle unsuccessfully appealed in state court, two
separate times. He started a federal habeas action in 1998, and three
years later the federal judge threw out the conviction entirely. We
challenged that ruling and received a partial victory--after another
three years of litigation--when the federal appeals court told the
district judge to start over, ruling that he should at least have
granted us a hearing before automatically accepting all the defendant's
factual allegations as true.
By then it was the year 2004. After yet another adverse ruling by
the district judge, we appealed again. The appeals court has not yet
allowed briefing, and there has been no action whatever on this case
for the past six months--a period of time longer than many appeals take
from start to finish.
Brian Thomas
Brian Thomas sexually assaulted and murdered a woman in 1985, with
a crutch. The crutch was used to penetrate the victim's body through
the vagina and rectum, while she was still alive, causing a massive
tear that extended into the chest cavity. Thomas was convicted and
sentenced to death, and the sentence was upheld through two separate
rounds of appeal in state court.
Thomas filed a federal habeas petition in 2000. There was then
briefing, counter-briefing, and counter-counter-briefing before the
federal district judge, which took three years. At that point the
federal judge took no action on the matter at all for another year and
a half. Just this month the habeas judge finally issued an order. But
the order neither grants nor denies the habeas petition. Instead the
judge has merely scheduled the case for oral argument--18 months after
the last briefs were filed with him.
Michael Pierce
Federal habeas litigation ensures undue delay not only at the
expense of victims and prosecutors, but even, in many cases, against
the wishes of the defendants themselves. Michael Pierce is one such
case. Pierce repeatedly argued with his parents and threatened to kill
them. After they kicked him out of their house, he set it on fire with
a can of gasoline while they were inside. His mother and father died,
along with his 95-year-old grandmother. The crime occurred in 1989.
From the time of the trial, Pierce declined to make the usual claim
in capital cases--mental infirmity. He chose not to allow his lawyers
to secure records or experts for the purpose of creating a
psychological defense. The state courts upheld his conviction and
sentence, ruling that Pierce's lawyers did not act improperly by
accepting rather than overriding his decision.
On federal habeas corpus review, initiated in 2002, a new set of
defense lawyers attempted to circumvent Pierce's desires and the ruling
of the state courts. At the lawyers' request, a federal judge issued an
order directing state corrections officials to remove Pierce from
prison and transport him to a hospital chosen by the lawyers, to
undergo testing by experts hired by the lawyers. The judge thereafter
required state officials to place Pierce in an involuntary mental
health commitment.
All this was done without any previous finding that Pierce was
incompetent, or any hearing concerning his mental status. Indeed the
habeas court initially entered its order ex parte--without any notice
to the prosecution, or even to the defendant. The court explicitly
directed the state prison officials to keep the whole affair secret
from prosecutors. We found out about it only after the ex parte order
was inadvertently placed on the public court docket. We then appealed.
Shortly after the appeal was filed, the federal court directed the
parties to address as a preliminary matter whether the timing of the
appeal was procedurally proper. That was in March 2004. Since then, a
period of 15 months, the appeal has remained pending; in fact the court
has been completely silent, making no decision about whether it will
even let the appeal proceed. If the appeal is dismissed, Pierce will be
automatically subject to the district judge's orders, and the court
presumably will, at some point years in the future, rule on the
sentence.
Hubert Michael
Hubert Michael's is another case illustrating the intrusiveness of
the federal habeas process. In 1993, Michael kidnapped a 16-year-old
girl and took her to a remote rural area. There he shot her with a .44
magnum handgun: once in the chest, once in the back, and once in the
back of the head. His explanation for the killing was that he felt
resentment toward women generally because he had been charged in an
unrelated rape case.
At trial, after an extensive colloquy, Michael chose to plead
guilty to first degree murder. Later, at a separate sentencing hearing,
and after consultation with counsel, he elected not to present
mitigation evidence, and received the death penalty. On his automatic
direct appeal, he indicated his desire that the sentence be affirmed. A
collateral petition was subsequently filed in state court on his
behalf. Michael sought to withdraw it, and after a hearing determined
that he was fully competent, his request was granted. On appeal the
state supreme court, in an abundance of caution, addressed and denied
as meritless all the claims raised by counsel.
Meanwhile Michael's attorneys filed a federal habeas petition on
his behalf. He sent letters to the habeas court asking to withdraw the
petition and dismiss counsel. The federal court insisted on another
mental health review. After three more years of litigation, the court
found that Michael was indeed competent, and dismissed his habeas
petition as requested.
The federal appeals court refused to accept this result. The court
appointed counsel for Michael over his objection, and asked him again,
after warning him of the consequences, whether he wished to withdraw
his appeals. Michaels said clearly that he did. Apparently that was the
``wrong'' answer. The appeals court responded with a ruling that, since
Michael had a lawyer, his own desires must be disregarded, and his
habeas corpus petition had to proceed. For good measure the appeals
court told the district judge to ignore any future similar assertions
by Michael. That is where the matter stands, after 12 years of
insistence by Michael that he does not wish to challenge his
conviction.
Lisa Lambert
The case that perhaps best epitomizes intrusiveness and delay by
federal habeas corpus courts is not even a death penalty. Lisa Lambert
was a high school teenager whose former boyfriend had transferred his
attentions to another girl. Lambert was furious. She began to stalk and
harass the other girl. Finally, just before Christmas in 1991, Lambert
entered the victim's home with two cohorts in tow and confronted her.
Then she slit her throat. Lambert was convicted of first degree murder.
Her appeal in state court was denied.
Lambert filed a federal habeas petition in 1996, and the federal
judge promptly appointed her a high-powered law firm. Within days of
the filing of an amended petition, the court ordered a conference and
scheduled an evidentiary hearing--even though none of the legal claims
had yet been raised in state court, as required by law. Within three
months (an amazing speed record in a habeas case) the judge had
overturned Lambert's murder conviction and released her onto the
street. In doing so he declared her actually ``innocent''--even though
she admitted that she had participated in the crime, and merely
quibbled about the degree of her culpability. The habeas judge also
explicitly condemned the state prosecutor and police, accused them of
gross misconduct, and attempted to initiate a federal criminal
investigation against them.
On appeal, the federal appellate court reversed, ruling that
Lambert had to go back to state court first. The state trial judge--who
is now himself a federal judge--then held a months-long evidentiary
hearing, and wrote a 200-page opinion. In it he meticulously examined
and debunked the various assertions that had been put forth by Lambert
and so easily accepted by the federal habeas judge. The state judge's
conclusions were in turn upheld in an 80-page opinion of the
Pennsylvania appellate court.
Lambert then came right back to federal habeas court. There the
previously assigned judge announced his intention to ignore everything
that had happened in state court, and to release the ``innocent''
defendant all over again. In the end, however, the judge was compelled
to disqualify himself. Another judge was assigned. This judge upheld
the conclusions of the state court, and the federal appeals court
followed suit. Four weeks ago, the United States Supreme Court denied
review--finally bringing the 1996 habeas action to a close.
The result was the right one in the end--but it took nine years,
thousands of attorney hours, and unimaginable anguish to the victim's
parents and family to undue the damage caused by the original federal
habeas judge.
These cases--and they are typical of my colleagues' experiences in
other parts of the country--demonstrate the inherent imbalance in the
exercise of federal habeas review over state criminal convictions.
Federal habeas courts have great power, simply because they are last in
line. But they have little responsibility, because they are so far
removed in time and space from the circumstances of the crime and the
subtleties of the state proceedings. Accordingly, they have small
motive to act expeditiously or efficiently, to give credit to the
judgments of their brethren in state courts, or to consider the needs
of crime victims.
The only way that balance can be restored is by Congressional
statute. H.R. 3035, the Streamlined Procedures Act, will do much to
limit overreaching by federal habeas courts, while still providing an
appropriate forum for criminal defendants raising legitimate
constitutional challenges to their convictions. Section 2 of the bill,
for example, requiring dismissal with prejudice of claims that have not
been ``exhausted'' in state court, will help prevent another Lisa
Lambert abuse, where the federal judge improperly granted relief on the
basis of claims that the state courts had never had a chance to
consider.
Similarly, Section 4 of the bill, concerning claims that were
procedurally defaulted in state court, will address cases like Joseph
Kindler, who was readily able to secure relief in federal court despite
forfeiting his right to review by escaping from prison every chance he
got.
Section 8, establishing time limits for federal habeas appeals,
would address the indefensible delay that routinely occurs during the
appellate process in cases like Mumia Abu-Jamal and William Holland.
And Section 9, which effectively reactivates the special provisions for
capital sentences that were first put in place by the 1995 AEDPA
legislation, will provide at least a semblance of judiciousness when
death penalties are challenged in federal habeas court, as in the Brian
Thomas case.
Other notable provisions of the bill include Section 11, which
would prohibit the kind of secret, back-door rulings that occurred in
the Michael Pierce case, and Section 12, which will require federal
courts to afford the same rights to victims of state crimes that are
now statutorily mandated for victims of federal crimes.
These and the other sections of the Streamlined Procedures Act
address distortions of the habeas litigation process that cannot be
justified under the central principle of federal habeas review: comity
between the state and federal judicial systems. The substance of H.R.
3035 has been endorsed by the Pennsylvania District Attorneys
Association, the Attorney General of Pennsylvania, and the Pennsylvania
Chiefs of Police Association. I am sure it will receive similar support
in other jurisdictions. The bill merits the support of this Committee
as well. Thank you.
Mr. Coble. Thank you, Mr. Eisenberg.
Professor Harcourt, you are going to be our clean-up
hitter, but I am going to ask you to suspend for a moment. We
have this series of votes on the floor. And gentlemen, I hate
to inconvenience you all and those in the audience, but I think
it is going to take close to an hour. We have one 15-minute
vote, and I am told six 5-minute votes. So if you all will just
rest easy, and we will be back as soon as we can. We will
momentarily be in recess.
[Whereupon, at 1:40 p.m., the Subcommittee was recessed,
subject to the call of the Chair.]
[2:55 p.m.]
Mr. Coble. Professor, you are recognized for 5 minutes.
TESTIMONY OF BERNARD E. HARCOURT, PROFESSOR OF LAW/FACULTY
DIRECTOR OF ACADEMIC AFFAIRS, UNIVERSITY OF CHICAGO
Mr. Harcourt. Thank you, Chairman Coble, Ranking Member
Scott, and Members of the Committee for inviting me to comment
on H.R. 3035, the ``Streamlined Procedures Act of 2005.'' I
have submitted a full statement that addresses in detail the
specific problems with the provision of this bill. I have also
prepared a statement. But before I begin, let me refocus our
attention on what precisely we are talking about here.
H.R. 3035, the bill under consideration today, strips
jurisdiction from all Federal courts to review all Federal
habeas corpus claims in State death penalty cases. Now there is
one precondition and there is one limited exception. The
precondition is that the United States Attorney General
certifies that the State provides competent counsel in State
post-conviction. And the one limited exception is a claim of
innocence. And I say it's extremely limited because it's only
for claims of DNA evidence. It is only in cases where no
reasonable fact finder would find the petitioner guilty of the
offense. So with that precondition and with that limited
exception, there's no more Federal habeas corpus in State death
penalty cases.
In addition, the provision has a number of other provisions
that are equally radical and that apply to all criminal cases,
not just death penalty cases, but ordinary drug offenses, white
collar crime and any other criminal case.
Now I would like to emphasize today three central problems
with this bill.
First, contrary to the title of the legislation, the
Streamlined Procedures Act will do nothing to streamline the
Federal appeals process, but will bog down the Federal courts,
actually delaying justice to victims of crime. This is a
radical measure that would overturn a whole series of Supreme
Court cases.
Congressman Conyers mentioned three cases earlier. When I
go through the bill, I see five Supreme Court cases that are
overturned by this bill: Rhines v. Weber; Wainwright v. Sykes;
Carey v. Saffold; Lindh v. Murphy; and Ohio Adult Parole
Authority v. Woodard. That is going to trigger spawn a huge
round of Constitution litigation about Federal habeas corpus
that will consume the Federal courts and the United States
Supreme Court for at least a decade. It's going to complicate
and delay the litigation and it's going to invite
constitutional challenges. The reason very simply is that the
bill strips Federal Court jurisdiction to determine many
Federal issues and undercuts the Supreme Court's efforts to
clear up uncertainties regarding the reform package that
Congress enacted in 1996, the Antiterrorism and Effective Death
Penalty Act, the AEDPA.
Now it's taken approximately a decade for the Federal
courts and for the United States Supreme Court to begin to iron
out what Congress did in the AEDPA and to render it somewhat
functional, well understood, and applied. Just this term, just
this week, we have had a number of decisions from the United
States Supreme Court trying to interpret the AEDPA from 1996.
It has literally taken a decade. And this legislation is going
to do the same thing and provoke the same decade-long round of
interpretive schedules and constitutional challenges.
Second, the Streamlined Procedures Act undermines the
recent bipartisan action by Congress to address inaccuracies in
the criminal justice system. I'm referring specifically to the
Innocence Protection Act, which was enacted as part of the
Justice for All Act, and which was a bipartisan 5-year effort
that was voted 393 to 14 in this House. It passed by voice vote
in the Senate before being signed by President Bush in October
of 2004. The passage of the Innocence Protection Act was
significant because it demonstrated the sense of Congress that
we must provide additional safeguards to protect against
inaccuracies and injustice in our criminal justice system, not
to eliminate long-established principles concerning Federal
review of criminal cases.
And it's important to note also that some of the provisions
in the bill H.R. 3035 are in direct conflict with the IPA. For
instance, in the IPA, a petitioner is entitled to DNA testing
if it may produce new evidence that would raise, quote, ``a
reasonable probability of innocence.'' In contrast, under the
SPA, the bill we're looking at today, if the Attorney General
approves the State system for post-conviction representation, a
petitioner can't get relief unless he establishes by clear and
convincing evidence a different kind of standard, his
innocence. So there are conflicts between those two bills.
Third, the Streamlined Procedures Act would increase the
risk that wrongfully convicted petitioners would be executed or
languish in prison. Many of the proposals in this bill would
preclude claims brought by wrongfully convicted prisoners. By
closing the door on the underlying Federal claims that support
evidence of actual innocence, this legislation effectively
closes the door on habeas corpus to actual innocent prisoners,
possibly some on death row.
Now the stringent provisions of the Streamlined Procedures
Act will result in serious harm to ordinary criminal
defendants, especially those without lawyers who are unable to
properly navigate the law.
In summing up, I would like to make this critical point
clear about the legislation. Opposition to this bill does not
represent opposition to the death penalty. And the two issues
should not be confused here. This bill goes much further than
dealing just with the death penalty. It deals with all State
crimes from ordinary drug possession all the way to accounting
practices, and it strikes at the very heart of the checks and
balances that makes our criminal justice system unique in this
country and the world.
[The prepared statement of Mr. Harcourt follows:]
Prepared Statement of Bernard E. Harcourt
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Mr. Coble. Thank you, Professor. And I thank each of the
panelists. As I told you previously, we impose the 5-minute
rule against us as well, so if you could keep your responses as
terse as possible. And I suspect we will have a second round
because of the interest that this matter has generated.
Mr. Marquis, in your testimony you attach a critique of the
Death Penalty Information Center list of persons freed from
death row. Describe in general what the analysis shows. How
does the analysis of the DPIC position further the debate on
the death penalty in America? And what is meant by the term
``false exonerations?''
Mr. Marquis. That summary needs to be credited to Ward
Campbell, who is the supervising assistant attorney general in
California who has been working on it for years. And the Death
Penalty Information Center is a very neutral sounding group
that is an anti-death penalty group that puts out a list, and
it is the one that's generally acknowledged, with 115 names of
people supposedly exonerated. What Ward did is go through every
single case to see whether or not there really was evidence of
innocence. And what it turns up is that in a majority, if not a
very large number of the cases, that there is very little
evidence of actual innocence. And that in fact, many other
cases, there is considerable evidence of guilt.
My personal favorite is a guy named Jay Smith from
Pennsylvania, who was off death row and his case thrown out. He
then sues the Pennsylvania State Police. And the Third Circuit
Court of Appeals, not known for its conservatism, throws out
his case and says, even if the prosecutor misconducted himself,
we are still convinced you are guilty. It goes to the issue I
spoke of, using the word ``innocent'' and ``exonerated'' when
you are talking about people really has to be done very
carefully. And Mr. Scott talked about people exonerated by DNA.
We need to know how many that is. It's 12 people.
Mr. Coble. Mr. Eisenberg, in Professor Harcourt's
testimony, he asserted that the Streamlined Procedures Act
would complicate the litigation of all criminal cases,
especially death penalty cases, and delay resolution of these
cases at the expense of victims and their families. Do you
agree with this assessment?
Mr. Eisenberg. Mr. Chairman, I am heartened that we
recognize that this delay is a concern because of the
difficulties it causes for victims and their families. I wish
that more Federal courts were cognizant of that. It's certainly
not true that this bill will delay things, because in the
absence of this bill we face endless delay. Nothing has been
resolved. Nothing has been ended. The delays that we face are
only growing, because it's not a question of the Supreme Court
cleaning up this or that little area of law.
I argued in the Supreme Court just a few months ago--and
again I did last year, and we expect to see more cases go there
in the future, whether or not the law is changed--we are going
to be facing lengthy rounds of litigation in the lower courts
that then apply those Supreme Court cases. And judges who want
to use those cases, however many precedents there are, in order
to drag things out in the lower courts, they are going to be
able to do that no matter what the statute is. That is the
lesson of the AEDPA.
Mr. Coble. Mr. Sabin, in addition to the provisions
contained in this bill, are there any additional death penalty
legislative recommendations that the Justice Department would
like for our Committee to consider?
Mr. Sabin. The answer is yes, Mr. Chairman. I have had a
chance to discuss with some of the experts at the Justice
Department. For example, under Atkins v. Virginia, where the
Supreme Court held that the execution of a mentally retarded
offender would violate the eighth amendment, we would recommend
that a procedure be put into place legislatively to determine
whether a capital defendant's mental capacity is such that a
death sentence would be appropriate or would be foreclosed
under the Atkins decision. There are certain notice of intent
provisions that are required to be filed a reasonable time
before trial, and we believe that a statutory clarification
regarding that notice of intent, based upon a Fourth Circuit
case, would be helpful.
There is also certain clarification regarding the meaning
of specific statutory aggravating factors; for example, the
pecuniary gain aggravating factor, that I think legislation
would be helpful. And the Justice Department on those and other
matters would work with the Committee to make sure that the
Committee understood the Justice Department's recommendations,
if appropriate, are enacted.
Mr. Coble. Have you all conveyed that information to our
Committee or Subcommittee?
Mr. Sabin. I believe the discussions have occurred. I can
follow up and make sure that some of those are specifically
forwarded to the Subcommittee.
Mr. Coble. I thank you, sir. My 5 minutes have expired, but
I didn't see the red light. But I will recognize the
distinguished gentleman from Michigan, Mr. Conyers, for 5
minutes.
Mr. Conyers. Thank you very much, Mr. Chairman. We seem to
have three witnesses that are, I think, in agreement with each
other. So I turn to Professor Harcourt. Will we face endless
delay if we don't enact this--one of these two measures that
are before us? Could you give us your views on that, sir?
Mr. Harcourt. We are in the process of having ironed out
basically the provisions of the AEDPA. The Supreme Court has
resolved most of the questions that are outstanding. And at
this point, the Federal death penalty and ordinary criminal
cases that are going through habeas corpus should be proceeding
at a much more rapid pace as a result of the AEDPA. It appears
that there are, in fact, less cases that are being overturned
by Federal courts as a result of the reforms that--the package
of reforms that were passed in 1996. And so I think it's pretty
clear there is less and less delay as a result of that reform.
Mr. Conyers. Thank you very much. Now let's get back to the
constant debate that will probably not be resolved in this
Subcommittee today. But is the death penalty a deterrent from
your studies?
Mr. Harcourt. Well, on the question of deterrence, I think
it's far too early to make any conclusions about the validity
of the studies, of the new econometric studies.
Mr. Conyers. Sorry to hear that, because I had thought I
was able to say that there is no deterrent effect.
Mr. Harcourt. The new studies that have come out from the
economists, et cetera, are kind of divided on the issue of
deterrence. There are some that suggest there is a deterrent
effect to the death penalty and there are others that suggest
that if you cut it in different ways, there isn't a deterrent
effect to the death penalty and, in fact, there is a
brutalizing effect to executions. We have had cycles of social
science debates about issues such as deterrence. In the 1970's,
there was significant debate over the Ehrlich study, which
resulted in the National Academy of Science report that
essentially said there is no evidence of deterrence.
What we have right now is a new series of studies. And
frankly, the honest truth is that it is much too early to form
any conclusions based on those studies. The death penalty is a
highly ideological and political debate and that extends into
the social sciences.
Mr. Conyers. Counsel--our counsel, Bobby Vassar, has handed
me a letter from assistant Federal Defender John Rhodes, sent
to him this month from Montana, Federal Defenders of Montana,
in which I will read the operative sentence: The 159 cases to
which I referred were those in which post-conviction DNA
testing has yielded conclusive proof of innocence. Of these 159
people, 14 have been sentenced to death, 39 to life
imprisonment, and others to various terms.
And I was wondering, does that comport with your
understanding of how these statistics are falling out?
Mr. Harcourt. Yes, Congressman Conyers. My number is 156. I
have 156 DNA exonerations around the country. 156. We are
talking about proof based on DNA that this wasn't the right
person. Of those, my numbers were 12 death penalty DNA
exonerations. I think you mentioned 14. We might be off by a
year or so. I have approximately 12 death penalty DNA
exonerations. The important point to understand here, of
course, is in the exoneration context, you have to distinguish
DNA exonerations from non-DNA exonerations. And when you don't
have DNA exonerating someone, then it's practically impossible
to get everybody on board to agree that the person was actually
innocent. There are going to be very few cases where there
isn't--there was evidence that resulted in a conviction
originally and there is going to be recantation, Brady evidence
that reveals new suspects, et cetera. But those are the
difficult cases where, in fact, there is proof beyond a
reasonable doubt of innocence. But there is going to be
possibly lingering doubt, particularly like someone like Mr.
Marquis. If you look at the list, the ones that are going to be
challenged are the ones where there isn't a clear case of DNA
evidence, but you are going to see that actually beyond a
reasonable doubt that there's evidence in the case.
I represented someone myself who was innocent. It wasn't a
DNA case. And I can tell you, I sat there with the two
investigators from the Alabama Bureau of Investigation and we
were trying to resolve, after we had proven his innocence to
their satisfaction, were trying to resolve who had committed
this crime. I had the ABI with me working on this case. I can
assure you there are still people who are going to have
questions about that case because there wasn't DNA.
Mr. Coble. If you could wrap up so we can move along. The
gentleman's time has expired.
Mr. Harcourt. If you look at the list, you need to go
through them case by case. In the case of Ronnie Burrell, it
suggests there wasn't evidence. In fact, the motion that the
prosecutor filed in that case said there was a total lack of
credible evidence linking Graham and/or Burrell to the crime.
So it's always when there isn't DNA evidence, there's always a
way to say that it's not a case of innocence. But we have had
over 160 of those cases as well.
Mr. Conyers. Thank you, Chairman Coble, for your unusual
generosity.
Mr. Coble. Thank you, Mr. Conyers. I appreciate that.
In order of appearance, the gentleman from California, Mr.
Lungren, is recognized for 5 minutes.
Mr. Lungren. Thank you, Mr. Chairman, for your customary
courtesy. And----
Mr. Coble. And I thank you for that.
Mr. Lungren. I was Attorney General for 8 years. We did as
much habeas corpus as any office in the country would. Ward
Campbell worked for me for 8 years. I hope we put this in
proper context.
The suggestion has been made that somehow habeas corpus is
the only way we protect defendants' rights. Capital cases, you
extend more rights to the defendant than any other type of case
you've got. You have bifurcated trials. You have to prove guilt
or innocence. Then you go to the sentence. That sentence can be
overturned by the judge. At least in California, you have
immediate appeal, combined appeal, both direct appeal and
habeas to the Supreme Court automatically. Whether the
defendant wants it or not, it is done.
Then you go into the Federal system. And let us remember
what we are talking about. As Chief Justice Rehnquist once said
in a dissent, the trial should be the main event unless we are
willing to give up the trial by jury as the essence of our
criminal justice system. Frankly, the Federal habeas corpus is
the most removed process that comes in after the fact. By and
large, they don't have an opportunity to see the witnesses to
judge their demeanor to see whether or not they are credible.
And I never could understand why folks believe that when a
particular judge who happened to be sitting on a Federal
District Court in Los Angeles, named Judge Lucas, became the
chief justice of the California Supreme Court, suddenly he lost
all wisdom and direction because he no longer dressed in a
Federal Court but now dressed in the California Supreme Court.
Carol Fornoff testified before this Subcommittee that her
13-year-old daughter was murdered in 1984 and the last State
court appeal was in 1992. The killer filed his first habeas
petition in U.S. District Court, where it remained for 7 years
before it was dismissed. Then the Ninth Circuit sent the case
back to the district court for more hearings, where it remains
today. Someone--Professor Harcourt mentioned the brutalizing
effect of this. What about the brutalizing effect on the
families? The Supreme Court told us in the Turpin case that it
was up to Congress to write the procedures for habeas corpus
and to make any changes. They invited the Congress to look at
it and make changes. Contrary to any suggestion that this is
out of our area of expertise, I would cite the Turpin case
which recognized it's exactly in there.
I don't know about all the studies you are talking about. I
can talk about a case that I argued before the United States
Supreme Court. It was called the Sandoval case and involved a
murderer who killed four people, two in a gang-related
incident, and then later on two people who had overheard what
he talked about, who were going to be witnesses, and he killed
them. We won the case in the Supreme Court. It went back. And,
ultimately, the death penalty was set aside for other reasons.
It had nothing to do with exoneration. The guy killed four
people. Four people.
I guess my question, Mr. Eisenberg, to you would be, there
has been a suggestion we don't need this. There has been the
suggestion that you know, if we do this, the courts are going
to screw it up again and going to take time to interpret it.
The suggestion is that we in Congress ought to tie our hands
and not do anything because it's going to add more delay. I
know the Ninth Circuit. That is one of the reasons I introduced
this bill.
The Ninth Circuit, despite what we did in 1996--and my
office wrote the language which was adopted by the Congress at
that time--the Ninth Circuit has managed to, in exhaustion
cases and procedural default cases, to get around what I think
was the intent of the law to have these interminable delays. So
I am familiar with the Ninth Circuit.
Could you tell me in your experience, even though we passed
that law in 1996 to try and take care of that, why would we
need something such as suggested in the bill?
Mr. Eisenberg. Because there were some judges, Congressman,
who didn't like what was in that bill. I'm sure they won't like
what is in this one. It is the job of the Congress to channel
the law in the direction you think it ought to go.
Procedural default, for example, well established concept.
We have thrown it around. It's a habeas term. What a Federal
judge in my neck of the woods does with it is to say, well,
there was a State procedural default where the defendant didn't
comply with some rulings in State court, but I don't like that
rule so I'm going to call it inadequate or insufficient in some
way, and then I get to ignore--and therefore I get to ignore
what the State court did, and I get to make my own decision
about the legal questions here. And that kind of litigation
sounds simple describing it. That kind of litigation takes
years in my part of the country and from my discussion with
others.
The same is true around the United States. It is not a
question of whether the concept can be simply uncontroversial,
described between habeas lawyers. It is a question of what the
courts then do with that in order to apply it in particular
cases. And however well established the concept is, if the
court wants to use it as a means of delay and as a means of
getting around a State court, it can. If Congress takes that
away, that has a positive impact.
Mr. Lungren. Sounds like a war of attrition.
Mr. Coble. Gentleman's time has expired.
After we adjourn this hearing, we are planning to mark up
the Secure Access to Justice and Court Protection Act of 2005.
So if you all could remain while we do that, I would be
appreciative.
The distinguished gentleman from Massachusetts. And I want
to say to him that prior to your arrival, I spoke favorably
about your work on the DNA legislation the last session. You,
and Chairman Sensenbrenner was involved, as was Mr. Scott and
I. Good work, and I'm pleased to recognize you.
Mr. Delahunt. Thank you very much, Mr. Chairman. I would be
interested in whether Mr. Sabin, Mr. Marquis, and I can't see
that far, Mr. Eisenberg. You are familiar with the Justice for
All Act?
Mr. Sabin. Yes, sir. Generally.
Mr. Delahunt. Did you support it?
Mr. Sabin. Personally, I didn't have a chance to weigh in.
Justice Department supported it, and we are implementing the
victim's provision.
Mr. Marquis. I am very familiar with it. And the National
District Attorneys Association supported most of the parts.
Mr. Delahunt. I am speaking about yourself.
Mr. Marquis. Senator Smith was one of the cosponsors.
Mr. Delahunt. I'm asking about Marquis, not about Smith.
Mr. Marquis. I had some problems about some of the issues
about when you describe innocence. But for the most part, yes.
Mr. Eisenberg. Congressman, what we did in Pennsylvania is
actually go ahead and draft our own before the Federal version
was passed. I participated in the drafting of that. Much of it
was modeled on the legislation that was originally introduced
in the Congress, and I'm very glad we passed that in the
States. In fact, while discussions were going on in Washington,
many States passed their own DNA legislation.
Mr. Delahunt. I noted that. And I applaud the States for
their efforts.
Let me just say this, Mr. Chairman. This is a very--I'm
referring to the Streamlined Procedures Act of 2005, offered by
my good friend and someone who I have profound respect for from
California. But I do have very serious concerns about this.
I guess I agree with Senator Specter who posed a question,
why the rush, particularly when this week it was announced that
there be a case in the fall to determine whether there is a
constitutional right to stop an execution based upon a claim of
innocence. And also this week, the Supreme Court ruled the
competency of legal counsel is perhaps the most significant
unresolved death penalty issue.
But I would hope, Mr. Chairman, that we could have a series
of hearings on discrete issues surrounding the Streamlined
Procedures Act, focusing in on the issues of harmless error,
exhaustion issues, et cetera, because this is a dramatic
departure from the current status of the law.
I'm not going to belabor the point. I think one point that
really has to be stressed, you know, people--there are a few
people that are probably watching these proceedings, and the
reality is--and it sounds simple, of course, to the panel--what
we are talking about are people who are incarcerated. These
people are not out on the street wreaking mayhem on the
community at large. So I think to assuage any unfounded
concerns that the American people might have in terms of when
they listen to our Subcommittees and your answers, should be
reassured about that.
Mr. Lungren. Would the gentleman yield?
Mr. Delahunt. Sure.
Mr. Lungren. I can give examples of people who were the
subject of habeas corpus cases with death penalties or life
imprisonment in California who did commit murders while in
prison. They might not have been on the street; we did see
that.
Mr. Delahunt. I happen to have--when I was a State
prosecutor, I had the major penal institutions in my
jurisdiction, and we obviously had a problem with homicides
within our correctional facilities. But I think there's another
point, too, that we have to be cognizant of, is that there are
maybe 12, 13 DNA exonerations in capital cases.
But as Professor Harcourt--I mean, how many cases are there
when DNA is unavailable, 80 percent, 85 percent? It's in that
neighborhood. You are all seasoned prosecutors. I think what we
learned from the advent of DNA is it has given us a window into
exactly what the Supreme Court is saying. The great unresolved
issue is competency of counsel. And yes, the States have made
progress. But I daresay anybody who has tried a lot of felony
cases in a State court is aware of situations where it was
clear during the course of the trial that counsel for the
defendant just didn't have it. Just didn't have it.
And I think we've all been--at least my experience has
been, I indicted individuals and charged them with serious
crimes, and subsequently found out that they, in fact, were
innocent in very real terms.
You know, what sets the United States apart from other
democracies, even, is the fact that it is the main event--I
think I heard that before, maybe it was from Mr. Lungren. It's
not the trial. The main event really is the search for the
truth. The search for the truth. And if there is doubt and if
there are grounds where a habeas petition will lie, it's
important for us to recognize that. That's just some
observations that I would make.
And Mr. Marquis, I always found it interesting that in
those jurisdictions, those States that did not have--noncapital
States, their incidents of violence, often homicide rates were
significantly lower.
Mr. Coble. The gentleman's time has expired, but you may
answer the question.
Mr. Marquis. With all due respect, Mr. Delahunt, I don't
think that's actually correct. The two jurisdictions that come
to mind are Michigan and the District of Columbia, none of
which have capital punishment and both of which, Detroit and
the District, have a terrible murder rate. I don't think there
is a direct correlation. But this goes to the issue of
deterrence. And there is a substantial body of study that shows
differently.
Mr. Delahunt. It is my understanding--and we can exchange
correspondence on this--that of the 12 or 13 noncapital cases,
their incidence of violence, their rate of violent crime is
less than those States that impose the death penalty. But we
can have that conversation via correspondence. But that has
always been a problem that I have had. And in fact, I think I
mentioned that once to my friend from Texas, Mr. Gohmert, who
will have a reply.
Mr. Coble. Information for all of you. The record will
remain open for seven days.
The distinguished gentleman from Florida will be recognized
for 5 minutes, Mr. Feeney.
Mr. Feeney. Thank you, Mr. Chairman. And as the gentleman
from Massachusetts indicated, the search for truth is something
we are all interested in, but hopefully the search for truth
eventually has some finality to it.
One of the problems with the death penalty is the extremely
lengthy and collateral processes that go on forever. Professor
Harcourt testified that it's his hunch that based on the last
10 years or so of jurisprudence, that the tremendous delays are
going to be less and less. But as I look at Justice
Department's statistics going back to 1984, the average time
between sentence and execution was about 73 months. As of 2003,
that had almost doubled to 132 months.
And for Mr. Eisenberg and for Mr. Sabin, have you seen any
dramatic change in the length of time between sentence and
execution in the last several years?
Mr. Eisenberg. I will begin, Congressman.
Yes, it's getting longer. And as far as I can tell, the
largest limiting factor is the length of life of the defendant.
In my State, for example, we have had three defendants who
waived their appeals and were executed, but we have had 15 who
died of natural causes on death row. Their cases came to an
end. But that seems to be the only way that contested capital
cases come to an end in some areas of the country is when the
defendant on death row dies of natural causes. Otherwise, the
delays are increasing, and certainly nothing about any
resolution of any questions under the AEDPA is shortening the
time.
Mr. Feeney. Mr. Sabin?
Mr. Sabin. I can't speak to specific numbers, Mr. Feeney.
But as a general proposition, the point that Mr. Lungren made
for closure for victims, that the process would extend on
unnecessarily. And that if an injustice has occurred, I would
think the offender would want that to be resolved sooner rather
than later, so that the streamlining of the process, with
appropriate review, would be in the interest of all.
Mr. Feeney. Mr. Eisenberg, very quickly, you indicate that
of the 20 cases in the last decade from Pennsylvania to go to a
Federal court in habeas, 19 were tossed out and only 1 was
upheld?
Mr. Eisenberg. It is roughly along those lines,
Congressman. And that's not to say that no cases have been
reversed by the State courts. On the contrary, many cases have
been reversed by the State courts, perhaps more than the number
that have finally reached ultimate decisions in the Federal
courts.
Our State courts are extremely vigilant in reviewing death
penalty cases, and many of those cases have been reversed, not
even having to go up to the State Supreme Court, but by lower
level State judges. Even cases that clear that complete hurdle
of 10 or 20 years of litigation in State court and then get to
Federal court are certainly going to be thrown out as well. We
just don't have a realistic process.
Mr. Feeney. Ninety-five percent of the time, the judge, the
jury, and the entire State appellate process is simply tossed
out on habeas by the Federal Court.
Mr. Marquis, if you would summarize the econometric
deterrence studies that you talked about. And by the way, maybe
you ought to mention, theoretically deterrence may work; but if
it's going to take us 15 years before we have an execution of a
sentence, there may be some diminishment of the potential
deterrent effect of a death penalty; that this bill would bring
back some real deterrence. And I would leave it with that.
I would like to get into the constitutional issue that has
not been addressed. There is nothing in the Constitution that
guarantees a collateral Federal right of habeas, which nobody
has mentioned. But Mr. Marquis, I would let you finish.
Mr. Marquis. Yes, the studies. I think one of the other
Congressmen mentioned--I'm sorry, Professor Harcourt--there is
a whole cluster that have come up in the last 5 years; one from
Emory University, another from the University of Houston,
University of Colorado. They're mostly by economists and
academics. And mostly all of the people that do the studies are
opposed to the death penalty, and they studied whether or not
there was deterrent from actual executions. Whether moratoriums
or pardons have an effect on murders. And all of the studies,
literally all of them thus far, show a significant deterrence.
And to put it in a very real sense, because I have been
accused by defense experts of being too concrete a thinker, 17
murders are deterred, plus or minus 7, for every death penalty
that is imposed in the United States. That's very real to me.
Mr. Feeney. I still have a little bit of time.
The constitutional issue, Mr. Eisenberg. Anything in our
Constitution guarantee any collateral, additional right of
habeas corpus in Federal court?
Mr. Eisenberg. No, Congressman. The words appear--the words
``habeas corpus'' appear in the Constitution, but they never
contemplated anything like the 10 and 20 years' worth of
appeals that we're talking about. There weren't even 2 years of
appeals when those words were put into the Constitution, and in
some cases no appeals, you had a trial. That was the main event
because it was the only event. And I think that--it is
inconceivable that any founder or any lawyer in the early days
of this Republic would have imagined that appeals in criminal
cases could go from court to court to court and take decades
long.
Mr. Coble. The gentleman's time has expired.
The distinguished gentleman from Virginia, Mr. Scott, is
recognized for 5 minutes.
Mr. Scott. Thank you very much.
Mr. Marquis, you indicated that one death penalty saves 18
murders; is that from the Shepherd study?
Mr. Marquis. Yes, it is. The main author of the study--
sorry, I can't pronounce the person's name; but yes, it's that
study.
Mr. Scott. Did Professor Shepherd review her conclusions
and conclude after that, that in the 27 States in which one
execution occurred during the sample period, capital
punishment, in her judgment, deterred murder in six States and
increased murder in 13 States and had no effect in the others?
Is that a subsequent finding of hers?
Mr. Marquis. My understanding of what happened is that
there was a blizzard of criticism of the study, and that--the
argument was made that they were concentrating too much on
States that had high execution rates, and if you took them out,
that the rate would in fact decrease. So, I'm not sure if that
answers your question.
Mr. Scott. Okay. In twice as many States, the murder rate
went up than went down because of the death penalty.
Mr. Sabin, one of the--I'm going back and forth on these
bills, and I didn't separate these questions by bill, but one
of the bills has a death penalty for cases in which death does
not occur.
Mr. Sabin. A grave risk of death, but not death under----
Mr. Scott. Has the constitutionality of the death penalty
when a death does not occur--has the Supreme Court ruled on
that?
Mr. Sabin. I don't believe the Supreme Court has ruled, but
it's equally applicable in treason and espionage cases under
the statutory provisions presently in place.
Mr. Scott. And death penalty, without a death occurring, is
constitutional in those cases?
Mr. Sabin. I don't know if there has been a specific
Supreme Court case that has addressed it in the treason or
espionage case. But the theory behind the legislation, as I
understand it in section 104 of H.R. 3060, is that theory, sir.
Mr. Scott. You have a retroactive application of the
procedure. Are there cases pre-1994 for which this death
penalty may apply?
Mr. Sabin. If you're referring to the quote-unquote
``Safarini fix'' under section 103, the answer is yes, sir.
There are a number of terrorism cases that have been charged
where there are defendants under indictment, that it would
directly affect where United States citizens were killed.
Mr. Scott. You have people under indictment today that are
not subject to the death penalty, and if we pass this bill, on
a pending case we will allow the death penalty.
Mr. Sabin. No, sir. In 1974 the Antihijacking Act was
passed; in 1994 the Federal Death Penalty Act was passed. There
were specific death penalty procedures during the time period
of 1974 to 1994, but in the passage of the Act in 1994,
Congress did not articulate, as interpreted by the district
court judge in the District of Columbia, that those provisions
specifically apply and were not extinguished with the passage
of the new legislation.
Mr. Scott. I understand the procedural; the procedural, you
can do it. But I just want to know the effect of the
legislation. You have people under indictment today that you
cannot impose the death penalty on.
Mr. Sabin. As the district court decision was found, yes.
Mr. Scott. Well, you have people under indictment today
that are not subject to the death penalty. If we pass this
bill, you will be able to subject them to the death penalty.
Mr. Sabin. Correct.
Mr. Scott. Pending cases.
Mr. Sabin. Yes.
Mr. Scott. In the middle of the case.
Mr. Sabin. No. They're under indictment. They're either
in--fugitives from justice that are not in United States
custody, or they have been apprehended and are serving a
sentence in a foreign country, that the United States has
sought to obtain the custody of them in order to process----
Mr. Scott. Now, I just want to make sure we know what we've
got before us. We have defendants in pending cases that are not
subject to the death penalty, and we will pass legislation that
would subject them to the death penalty. That may not
technically be a violation of ex post facto because it's
procedural, but procedural and substantive--I think it would be
substantive to the ones it applied to.
Mr. Sabin. I understand your point, sir. But the point was
that I believe Congress had unequivocally, and the executive
branch and congressional leaders had said that those
individuals were subject to the death penalty during that
period of 74 to 94, so they were clearly on notice. It's not
like we're changing the rules after the offense has been
committed.
Mr. Scott. Well, if we don't pass this bill, they won't be
subject to the death penalty; is that----
Mr. Sabin. District court in the District of Columbia has
interpreted congressional inaction or silence in 1994 by not
incorporating those provisions, such that we would not be able
to seek the death penalty.
Mr. Scott. Was that case appealed? Is that a final
judgment?
Mr. Sabin. He pled guilty to three life terms, plus 25
years, and is serving that now in a Federal penitentiary.
Mr. Scott. And the decision of the district court was not
appealed?
Mr. Sabin. Correct.
Mr. Scott. So that's the only place that's been ruled.
Mr. Sabin. Correct.
Mr. Scott. So in other cases, you could go try for the
death penalty and see what happens.
Mr. Sabin. We could. We're seeking congressional explicit
recognition of that fact--which we believe Congress had
previously done--but just to make sure that it is done----
Mr. Scott. You're seeking your own alternative court of
appeals. Okay.
Mr. Coble. The gentleman's time has expired.
We have been joined by the gentlelady from Texas. Good to
have you with us, Ms. Jackson Lee. In order of appearance, the
distinguished gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. Thank you,
witnesses----
Mr. Coble. Would the gentleman suspend? Were you here
earlier, Mr. Chabot?
Mr. Chabot. I was. But I will defer.
Mr. Coble. If you were here earlier, that's my mistake; but
I recognize the distinguished gentleman from Ohio, Mr. Chabot.
Mr. Gohmert. I appreciated being recognized.
Mr. Chabot. But he was a judge, I was just a lowly trial
lawyer.
Mr. Coble. And I will get to the Texan subsequently.
Mr. Chabot. Okay. I want to first thank the Chairman for
his leadership in this area. I want to thank the witnesses. I
think we've had really excellent witnesses here today. I also
want to thank Congressman Lungren for introducing H.R. 3035,
which attempts to streamline the procedures relative to death
penalty cases.
As a longtime advocate for victims rights, I've been very
disturbed by the length of time that it takes for a lawfully
convicted person to go from sentencing to execution in this
country. The average length of time between sentencing and
execution has risen from 74 months, or 6 years and 2 months in
1984, to a high of 143 months, or just shy of 12 years in 1999.
And as we know, 20 years is not that rare a case in this
country nowadays.
Why does it take so long for these murderers to meet their
fate? All too often the delay is a result of lengthy and often
meritless appeals by the convicted person. In some cases, the
convicts have had the audacity to suggest that their extended
incarceration on death row is, in and of itself, cruel and
unusual punishment; and, as such, that their sentences should
be commuted. Fortunately, this so called ``lackey'' defense has
failed in most cases, but it shows how opponents of the death
penalty, including those sentenced to death, have attempted to
use and abuse the court system to achieve something that they
cannot achieve in the legislature, and that is the abolition,
essentially, of the death penalty.
The reason for their failure to effect change through the
normal legislative process is obviously they lack the public
support. Public support for the death penalty has remained
relatively constant, with approximately 69 percent of Americans
in favor of the death penalty and only 24 percent opposed.
My concern here, however, is not for abstract numbers
representing the average number of months between sentencing
and execution; my concern is for what those numbers mean for
the families that have already endured the loss of a loved one
and who are forced to endure years and years of prolonged agony
as they wait for the justice that the jury has said that they
are due.
Three weeks ago, this Committee heard testimony from Mrs.
Carol Fornoff, whose 13-year-old daughter Christy was murdered
by the maintenance man at an apartment complex near their home
in Arizona. The maintenance man was convicted in 1985 of the
crime and was sentenced to death. That was 20 years ago. He is
still on death row today, having used extensive appeals at both
the State and Federal court level to prolong this ordeal for
Mrs. Fornoff and her family. I mean, your heart just went out
to these people.
Or take the case of a constituent in my district in
Cincinnati, Mrs. Sharon Tewskberry. Her husband Monte was
stabbed in a convenience store robbery in 1983. Mr. Tewskberry,
who was working at the store to make a little extra money to
send their daughter to college, managed to crawl outside the
store to call his wife from a pay phone after he had been
stabbed. She arrived in time to hold him in her arms while he
died.
The following year John Byrd, Jr. was convicted of
murdering Mr. Tewskberry and was sentenced to die. Nineteen
years later, after Byrd had finally exhausted every appeal at
both the State and Federal level, including what amounted to a
retrial in Federal court of the State law case, John Byrd was
finally executed. Nineteen years.
Mr. Chairman, these cases and so many others affirm that
justice delayed is justice denied. And there are many, many
other cases that I could cite, unfortunately I'm running out of
time here. But this is one of the things, since I've been here
in Congress, that has been so frustrating. And we passed the
Antiterrorism and Effective Death Penalty Act back in 1996,
which was supposed to make it a little easier to carry out
these sentences, but in practice it's just not worked.
And I would strongly encourage this Committee and the
Congress to be serious about this issue, because there are
families whose lives have been ripped apart, and they wait and
they wait and they wait, and oftentimes 20 years, for justice
to be carried out. And we have to make sure that we have an
effective enforcement of the death penalty in this country.
And I yield back the balance of my time.
Mr. Coble. I thank the distinguished gentleman from Ohio.
The Chair recognizes the distinguished gentlelady from
Texas, Ms. Jackson Lee, for 5 minutes.
Ms. Jackson Lee. I thank the distinguished gentleman. To
the witnesses, thank you for your presentation. And thank you
for the indulgence of other meetings that I had, that I may
have not heard the entirety of your testimony. But I do want to
acknowledge that this is a very serious issue. And I know that
victims are disproportionately sometimes impacted by the system
that confuses them that we call justice.
I would only say, without making any frivolous statement,
that the alternative to this is to simply take them out and
shoot them. We are not that kind of society--that would be
expedited, whether we use a firing line, whether we hang them--
but that is not the society in which we live.
And so I would just simply say, with the understanding of
how we abhor the violent acts that my colleagues have spoken
about and the victims that have suffered the rash of sexual
predators and killers of children over the last couple of
years, however we abhor that, the alternative to a system that
we have that allows those charged and convicted the opportunity
to pursue their innocence or to pursue their rights in court is
a system by which we call democracy and constitutional, I
believe.
So it is interesting that we have these discussions about
justice being delayed by a period of time. I don't know what
the alternative would actually be.
I do want to say to Mr. Marquis that you had in your
testimony that you did not believe that one person--or no one
could point to one person, single case of a demonstratively
innocent person that has been executed in the modern era of
American capital punishment. We know that a number of
defendants over the years have been proven innocent by DNA.
I would also say by the odds, that we might imagine that
there are a number of those in the course of our history, which
we would account for the 20th century, particularly knowing the
number of African Americans that sit on death row that have
gone to their death that certainly have the possibility of
being innocent with the proper defense and resources; are you
trying to suggest that you can't count one person that you
believe was demonstrably innocent that had been executed in
modern era?
Mr. Marquis. Congresswoman Jackson Lee, if you're talking
about post-1976, that is exactly my statement. If you're
talking about the 20th century, there is no doubt that innocent
people were executed in this country. But we're talking about
the post-Gregg era. And more in particularly the last 15 years,
because the kinds of due process protections, the kind of
counsel--even particularly in your State, as well as others,
that have been accorded just in the last 10 or 12 years
represent a major improvement.
Ms. Jackson Lee. Well, I would beg to differ with you. And
I'm glad you cited my State.
And Mr. Harcourt, I'm going to ask you a question before
the light goes out, so you will be able to answer it before I
respond to Mr. Marquis.
In your remarks you said that you answer the proposed bill,
the Streamlined Procedures Act of 2005, radical. If I turn the
tables on you, they would--opponents of such would presume your
statement to be radical. My question to you is, are you radical
or are you right? And give us why you assess this bill to be
radical, and why you would propose your view to be right.
Let me just comment to him, and I would let you--yield to
you to answer.
I really disagree with you on that, because I do live in a
State that is notorious for having the highest number of
individuals on death row. I venture to say that they have the
highest number of executions, and I would venture to say they
are predominately minority members, since we happen to
predominate on death row anyhow. And we've had a number of
cases that have failed as it relates to appropriate counsel,
the pardon process--or not the pardon process, but the process
of review by our board of review for death penalty cases.
So I would vigorously argue with you whether or not we have
complied with due process procedures post-1976. And modern era,
as far as I'm concerned, could be considered the 20th century,
and certainly could be considered the last half of the 20th
century, 1950 and after; and I don't think you can count your
comments as accurate.
Mr. Harcourt, could you answer my question about your
assessment of the radicalness of this particular bill, and why
you're not being radical?
Mr. Harcourt. Yes----
Mr. Coble. Professor, the gentlelady's time has expired,
but you may answer the question.
Ms. Jackson Lee. I thank the Chairman for his indulgence.
Mr. Harcourt. We have to understand that what this bill
does is it eliminates Federal habeas corpus in State death
penalty cases. That's a--that wasn't done in the AEDPA
explicitly. And it eliminates it on one precondition: that the
Attorney General of the United States has to certify a State as
having competent defense in State post-conviction, and with one
extremely narrow elimination, which is slam-dunk evidence of
innocence. Basically only DNA would satisfy that.
So what we're talking about is in State death penalty
cases, there will not be Federal habeas corpus, okay. I
consider that somewhat extreme. It's not what the Congress
envisioned with the AEDPA, and I don't think that--I think that
it is what one could consider radical.
In addition, eliminating procedural--eliminating cause and
prejudice standard for procedural due process in Federal habeas
corpus across the board, not just in death penalty cases, but
across every single criminal case, you're eliminating the cause
and prejudice standard which was created by Chief Justice
William Rehnquist in 1977. It was a significant narrowing of
the Faye v. Noya standard from 1963, which was deliberate
bypass, okay, but it was a standard that has been in place, in
fact, so much--in place based on federalism and comity
concerns, so well engrained in our system of Federal habeas
corpus jurisprudence that the AEDPA did not even address
procedural due process.
Mr. Coble. Professor, if you can wrap up. We're all going
to have a second round, so you can move along.
Mr. Harcourt. Thank you, Chairman.
Mr. Coble. Prior to recognizing the gentleman from Texas,
let me remind the Members again that after we adjourn this
hearing we will mark up the Secure Access to Justice Bill. So
if you all could remain, I would be appreciative.
The Chair recognizes the distinguished gentleman from
Texas, Mr. Gohmert, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
With regard to the State of Texas, I do have some
experience both as a prosecutor, as a district judge, our
highest trial court, and then as an intermediate chief justice
of the appellate court.
I had a guy who was nominated for the Federal court by a
Democratic President back in the seventies, was nominated for
the Fifth Circuit of Appeals, and took that position--by
President Clinton. I had him speak to a Rotary Club some years
back and he said, on being asked during question and answer
what do you think about the death penalty in Texas, and his
words were--and he's much more moderate than I am--but he said,
you don't have the death penalty in Texas. And people began to
get all ruffled. And he said, if you're waiting 10 to 20 years
to put somebody to death, and do it in the middle of the night
when nobody can see and nobody can be around, you don't really
have the death penalty.
Interestingly enough, there's something to his comments. We
have put people to death. I do challenge anybody to show since
1976--I don't know about before then, I wasn't licensed before
then--but anyone who had been executed since that time who was
innocent.
I know there were a lot of people who have been guilty who
have had cases reversed. I get sick and tired of hearing people
say that, well, you know, we know in Texas they didn't get
proper representation because defense attorneys are not on the
proper level with the seasoned prosecutors.
I had never tried a murder, I had never tried a death
penalty case, and yet in 1986 I was appointed to appeal a
capital murder conviction, and I did one fantastic job because
I worked my tail off. And there was not proper due process in
the trial and it was reversed.
So I get a little sick of saying that somebody like me was
not competent in the appeal of a death penalty case. I have
tried them as a trial judge. And for those who don't know, it's
not enough to be convicted of capital murder, as Mr. Lungren
pointed out, you have a bifurcated trial, and then go into--in
Texas it's basically three questions that in essence say,
number one, did you commit the murder or know that the murder
was going to be committed; number two, are you a future danger;
and number three, is there anything whatsoever that mitigates
against getting the death penalty? And man, that opens the door
to all kinds of testimony. And only if you get a yes, yes, no
is the judge in a position to pronounce a death penalty.
Also in the issue of race, my anecdotal situation, I
understand what the numbers are statewide. I had three people
convicted of capital murder in my court in a decade, and two of
them got the death penalty. They were both white, and the one
that didn't was an African American.
With regard to this issue of studies, I'd like to ask, do
any of the four of you know of any studies about recidivism or
the deterrence effect of capital murder sentences that were
done before the modern era of habeas corpus in cases taking 10
to 20 years? Do any of you know of any studies before we
started dragging death penalty 10 to 20 years----
Mr. Harcourt. Your Honor----
Mr. Coble. The red light is about to illuminate, but you
all may answer.
Mr. Harcourt. Thank you.
The original studies about deterrence were done in the
early 1970's, and that was the Erlich study, which had
originally suggested that there was deterrence, but it was
subjected to a lot of review; and ultimately an expert panel of
the National Academy of Sciences issued a strong criticism of
the early study. And I think that that would cover a period of
where it was not prolonged death penalty appeals and processes.
So the evidence there suggested no deterrence.
Mr. Gohmert. Okay. Let me just ask you--and I appreciate
what I believe is your great candor, Mr. Harcourt. You
mentioned 12 death penalty cases in a discussion about proof
beyond a reasonable doubt of innocence. In those 12 cases, was
there proof beyond a reasonable doubt of innocence, or just
some procedural flaw or reasonable doubt such that created no
additional trial after reversal?
Mr. Harcourt. Those 12 cases were referring to 12 DNA
exonerations in death penalty cases; exonerations, meaning
wrong person. The blood--the blood or semen or whatever other
human cells that were obtained and checked for DNA purposes
were a different person. So those would be 12 DNA exonerations.
Of course the other cases of approximately more than 100
exonerations or cases of actual innocence don't involve DNA.
And so as a result of that, what I'm suggesting is, of course,
there is always lingering debate because you don't have rock-
solid proof, and it's----
Mr. Gohmert. And is it possible that the DNA, the so-called
exoneration may just have raised such doubt that that person
could have been there, knowing the crime was going to be
committed, but it's just that with the DNA evidence it created
a reasonable doubt that wasn't worth trying?
Mr. Harcourt. Well----
Mr. Coble. The gentleman's time has expired. You can
respond tersely.
Mr. Harcourt. Right. Well, these are cases where Governors
in most cases have exonerated individuals on the belief, firm
belief, that they were not the individuals who committed the
crime.
Mr. Gohmert. Thank you. Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman. Now we are coming up to
another vote before too long, but I think a second vote is
warranted, so we will move along. And I appreciate the
panelists hanging tough as you have.
I'll start the second round.
Mr. Sabin, since 9/11 the impact of terrorism has become a
regular experience with most Americans now that was virtually
unknown prior to 9/11. But in the death penalty framework, Mr.
Sabin, why are terrorist offenses treated not unlike treason
and espionage cases rather than traditional homicides?
Mr. Sabin. The threat and harm to society that is prevalent
in the present statutory framework for treason and espionage
cases is in the same vein as would be in terrorism cases; the
fact, as we have discussed earlier, that there is a grave risk
to society based upon the threat that thousands, tens of
thousands of people could be killed by that act of treason or
by that act of espionage or by that act of terrorism, rather
than a specific murder that occurs. So under section 101 of the
proposed legislation, you would have terrorist offenses that
result in death.
And the other section of the proposed legislation, you
would have terrorism put on that same playing field as treason
or espionage cases because of the widespread impact upon
society.
Mr. Coble. I thank you, Mr. Sabin.
Mr. Marquis, with the passage--we may have gotten into this
previously, but I want to extend it one more time.
With the passage of the Justice for All Act and creation of
post-conviction DNA testing procedures, what impact will that
have upon addressing concerns of innocent defendants on death
row?
Mr. Marquis. In response to, I think, one of the comments
by--I think it may have been the Congresswoman from Texas, the
idea that we are conducting summary proceedings could not be
farther from the truth. I have one person that I have put on
death row. He committed his murders in 1987; we're about to
have the fourth trial for him.
To be blunt, in the United States, defendants are--in death
penalty cases, are drowned in due process. And that probably is
the way it should be; if we're seeking to take someone's life,
that's very important. The reason that these cases go on at
such length is because almost universally now, a very high
level of lawyer is provided.
In my State, which is not atypical, there have to be at
least two; you have to be death qualified, you have to have
previously tried a murder case. And I did death penalty
defense, and I was able to do it because I had previously tried
a murder case.
In my State we spend more money on indigent defense all
over, not just in capital cases, than we do on prosecution.
That's not the case everywhere in the United States. But I
think it's important to note that, particularly with the
passage of Justice for All Act, one of the concerns was, well,
what if somebody--if there is a new DNA case and it comes up
later?
As a prosecutor it is my worst nightmare that I would
prosecute an innocent person. And I don't believe there should
be any block against bringing up evidence at any point in a
proceeding, no matter where you are procedurally, if the person
really didn't do it.
Mr. Coble. And I concur with that.
Mr. Eisenberg, this may be duplicating. I don't think we've
addressed this specifically. What is your view of a proposal to
scale back Federal review at the district court and appellate
levels? And how well situated are State judges in vindicating
Federal constitutional rights?
Mr. Eisenberg. Mr. Chairman, we are certainly facing delays
at both of those levels of the Federal courts. The only level
in which cases move at a reasonable predictable pace is if and
when they ever get to the United States Supreme Court, which is
extremely rare.
In the district courts, I mentioned one case in my written
testimony, hasn't gotten an appeal yet, it's still in the
district court where it has been kicking around for I think 4
years now. And just a couple of weeks ago the judge issued an
order in the case, but the order is not a decision on the case;
that's just an order setting oral argument about all the briefs
that had been filed so far.
So it has taken us 4 years to get to the point where the
district judge ordered oral argument, which is supposed to take
place next month--who knows how many years until he finally
rules? And only then will we even start the appeals.
In State court, of course, these cases are getting judicial
attention much earlier. And as I mentioned previously, there
are many State courts that have reversed many death penalty
cases. Now, that's been argued by some as proving that there
are all these errors in these cases. But if that's true, if we
can rely on those State court judgments, we can certainly rely
on the State court judgments that affirm death penalty cases as
well.
Mr. Coble. Well, when you said district court, you meant
Federal district court?
Mr. Eisenberg. Yes. I meant the lower level of the Federal
courts, which happens after all the State court appeals; the
first thing that happens in Federal court.
Mr. Coble. I thank you, sir.
The distinguished gentleman from Virginia is recognized for
5 minutes.
Mr. Scott. Thank you.
Mr. Marquis, you indicated if someone has evidence that
they're innocent, they ought to be heard and have that
opportunity. If it's--if you have evidence that's not DNA
evidence, what kind of chance would you have if you were
factually innocent?
Mr. Marquis. Well, there are--in addition to the various
direct appeals, Federal appeals, habeas appeals, if there is
evidence of innocence. This is where there is something, some
amount of the human factor. Evidence is brought to prosecutors
and to Governors, and it is not uncommon in this country for
prosecutors----
Mr. Scott. If you can convince the prosecutor. But if the
prosecutor doesn't want to go along, what can you present to a
judge under these bills that will allow you to be heard?
Mr. Marquis. I can't speak to what can be provided under
these bills----
Mr. Scott. Well, under present law you don't have much
because you've got to have evidence of--clear and convincing
evidence to get past a motion, frivolous charge. I mean, you've
got to show clear and convincing evidence. If all you've got is
evidence that you're probably innocent, do you get a hearing?
Mr. Marquis. I think it requires more than that.
Mr. Scott. Right, okay.
If under H.R. 3035, Professor Harcourt, if a State court
has ruled that the evidence--that the error was harmless, can
the Federal court review that finding?
Mr. Harcourt. Not on a sentencing issue, Congressman Scott.
One of the provisions of H.R. 3035--I think it's specifically
provision 6, section 6--suggests that if a State court, in
post-conviction or on direct appeal, finds that a claim
regarding a sentence or a sentencing process--this applies
whether it's a death penalty case or an ordinary criminal
case--if the sentencing claim is harmless or that they found
out it was not prejudicial in some way, then the claim cannot
be reviewed in Federal habeas corpus.
Mr. Scott. Is that the same for ineffective counsel?
Mr. Harcourt. Well, that's precisely the point. Ineffective
assistance of counsel is a two-prong standard that requires
inadequate--or performance that's not up to par. And then
prejudice. It's a two-prong standard which has a prejudice
prong in it. So effectively, any kinds of claims of ineffective
assistance of counsel regarding sentencing--which, of course,
some of the most significant kind of cases that we see--in
fact, the United States Supreme Court has just reversed a few
cases because of inadequate counsel at the sentencing phase--
would be barred by this legislation.
Mr. Scott. Now, if you haven't exhausted State remedies and
you file your petition in Federal court, do I understand this
bill to say it is dismissed with prejudice?
Mr. Harcourt. Correct.
Mr. Scott. That means when you go back to State court, you
can't come back.
Mr. Harcourt. That's correct. Under present AEDPA law--
actually in a ruling just issued this year by the United States
Supreme Court in Ryans v. Webber, and under the AEDPA, there is
essentially some discretion provided to Federal judges in cases
of unexhausted claims. It's a very limited discretion.
Mr. Scott. They can dismiss it without prejudice, or they
can hold it until you've been there.
Mr. Harcourt. Correct. Although it's very limited. I mean,
you have to show that you're likely to prevail, et cetera. It's
not as if it would apply to all unexhausted----
Mr. Scott. But if they dismiss it, it wouldn't be with
prejudice, so you could never bring it back.
Mr. Harcourt. Correct, yes.
Mr. Scott. My time is almost over. I had a couple of quick
questions.
Under H.R. 3060, when a jury has found someone guilty but
can't decide on the--or is hung on the question of guilt, the
bill provides for a new jury to come in on the question of
death--a new jury to come in.
Has a court ever reviewed what happens if a jury cannot
unanimously decide death? I thought the rule was that you have
to impose life, is it----
Mr. Eisenberg. May I address that, Congressman? We did have
a case from my State that I believe touched on this issue and
went up to the United States Supreme Court. And the United
States Supreme Court held that, in fact, if the sentencing jury
can't decide on death, that's not a double jeopardy bar to
retrying the issue.
There are some States which by statute don't allow another
sentencing hearing, which automatically impose a life sentence
in the event of a hung jury.
Mr. Scott. Do you have a case on that specific point? Could
we get the name of that?
Mr. Sabin. I believe it's the Jones case.
Mr. Scott. Which said if the jury is hung on that question,
it is not double jeopardy to come back. So if we change the
statute, then that case would answer the question on
constitutionality of that provision.
Mr. Sabin. I don't think it quite held that that was the
holding. I believe there was not unanimity. There were
questions about the jury instructions and whether you had to
impose death, life sentence, or another sentence that would be
less than death. And the confusion that was suggested created
in the jury by those instructions impacted upon the court's
decision.
Mr. Scott. Okay. And the other question is, there is a
provision to proceed with less than 12 jurors in H.R. 3060.
Does anybody want to comment on that, and whether courts have
reviewed going forward on a death penalty case with less than
12 jurors over the objection of the defense?
Mr. Coble. The gentleman's time has expired, but you may
answer.
Mr. Sabin. I don't believe a court has held in that regard;
that is correct. If good cause is found, a judge under this
proposed bill can proceed with a jury of less than 12 without
the defendant's stipulation.
Mr. Scott. And has any court--and no court has ruled on
that as a denial of due process; is that right?
Mr. Sabin. I am not aware of court proceedings. We can get
back to you on that of any specific court, if the Supreme Court
or lower level has reviewed that.
Mr. Coble. The gentleman's time has expired. The
distinguished gentleman from California is recognized for 5
minutes.
Mr. Lungren. Thank you, Mr. Chairman.
Mr. Harcourt, you correctly noted in your testimony that
the current law allows a State to trigger a special set of more
advantageous, as you say, to the State procedural rules for
Federal habeas corpus proceedings if the State establishes an
effective system providing competent counsel to indigents in
State post-conviction proceedings. You also note that Federal
courts determine whether a State scheme for supplying counsel
meets the statutory criteria, and this is the so-called opt-in
feature of AEDPA. But then you then criticized the bill I have
introduced for placing the decision of whether the State
qualifies for chapter 154 treatment in the hands of the U.S.
Attorney General. You contend this: A State that gets
something, advantageous procedural rules in Federal court in
exchange for doing something, providing good lawyers to
indigents in State proceedings, this section would change both
ends of that quid pro quo equation.
Look, I know that many States, including my own, have
devoted great effort and expense toward providing the type of
counsel that chapter 154 requires. As a matter of fact, when we
drafted the law California was used as the model. But it has
now been 9 years since the passage of the law, can you name me
one State that has been permitted by the Federal Courts of
Appeals to qualify for chapter 154? And hasn't the quid pro quo
equation under current law that you celebrate effectively
always meant a zero for the State side of the equation?
Mr. Harcourt. If I'm not mistaken, I believe that Arizona
qualified for the opt-in provisions under the Ninth Circuit
review. And I believe that's the--I believe that is the only
State that has qualified for the opt-in procedures.
Mr. Lungren. Does it sound like it's working?
Mr. Harcourt. Well, the question is whether adequate
counsel is being provided in State post-conviction proceedings.
Mr. Lungren. That's true. And it's interesting that we
modeled that section after the California experience, and yet
the courts have not found that to be appropriate; thereby, it
looks like, ignoring what we tried to suggest was appropriate.
I have so many questions here. Let me ask you this. You
criticize section 14 of the bill, which you say would overrule
the U.S. Supreme Court's interpretation of the 1996 act as not
applying to pending claims. And today, 9 years after the law
was enacted, a small but significant number of habeas corpus
petitions still remain that were not governed by it and are
still subject to the pre-1996 standards. You state in your
testimony that legislatively overruling the Supreme Court's
interpretation and applying it to all current cases would
trigger massive litigation over whether the U.S. Constitution
allows Congress to do this.
Now, the Lynn case, 1997, the Supreme Court that held that
the 1996 law did not apply to pending cases, was a 5-4
decision. Are you aware of any passage in either the majority
decision or the dissent in that case, that suggests that
Congress could not have applied AEDPA to pending claims? And if
applying them to pending petitions would have raised such
constitutional concerns, don't you think that at least one
justice would have mentioned this?
Mr. Harcourt. Congressman, I don't have the Lynn decision
right in front of me, so I can't quote any language from it,
but I believe there was a claim raised as to the retroactive
application of new procedures in that case, which would be
precisely the kind of constitutional claim that would be raised
as a result of this H.R. 3035, if the--part of the bill
provides that it applies to cases that are pending right now.
Mr. Lungren. You also suggest that many sections of the
legislation would raise significant constitutional questions
about the prior Congress to restrict Federal court review of
habeas claims, including whether or not the bill violates the
suspension clause of the United States Constitution. You later
assert that the bill would arguably suspend the writ of habeas
corpus.
In the Lynn case, the court of appeals described the
constitutionally guaranteed writ of habeas corpus this way: The
writ known in 1789 was the pretrial contest of the Executive's
power to hold a person captive, the device that prevents
arbitrary detention without trial. The power thus enshrined did
not include the ability to reexamine judgments rendered by
courts possessing jurisdiction. Under the original practice,
the judgment of conviction rendered by the court of general
criminal jurisdiction was the conclusive proof that confinement
was legal and prevented issuance of a writ. The founding area
of historical evidence suggests a prevailing view that State
courts were adequate fora for protecting Federal rights. Based
on this assumption, there was, and is, no constitutionally
enshrined right to mount a collateral attack on a State court's
judgment in the inferior article 3 courts, and, a fortiori, no
mandate that State court judgments embracing questionable or
even erroneous interpretations of the Federal Constitution be
reviewed by the interior article 3 courts.
The Seventh Circuit then concluded: Any suggestion that the
Constitution forbids every contraction of the habeas power
bestowed by the Congress in 1885 and expanded by the 1948 and
1996 amendments is untenable.
My question is, do you think that the Ninth Circuit got it
wrong?
Mr. Coble. The gentleman's time has expired.
Mr. Lungren. I talked as fast as I could.
Mr. Coble. I'm not admonishing you, but you may respond to
that, Professor.
Mr. Harcourt. Thank you, Chairman.
The question of constitutionality here has to do with
whether or not you can grant Federal jurisdiction to a Federal
court up to a certain point where a violation of Federal law
would be discovered, okay, but at which point the jurisdiction
would be stripped, and so the court couldn't do anything. So
that's probably the most complicated constitutional issue that
this statute presents. In other words, it would be a situation
where a Federal district court would be able to--would see a
violation of Federal law, but would not be able to--but then
jurisdiction would be stripped right at that point because the
lower court found it harmless or because there is no procedural
default rules in place anymore, et cetera.
What really becomes questionable with H.R. 3035 is that
point where jurisdiction is stripped after a Federal court
would have found a substantive violation of a Federal
constitutional right.
Mr. Lungren. So you think the Seventh Circuit got it wrong.
Mr. Harcourt. You were talking about the Ninth Circuit.
Mr. Lungren. Seventh Circuit. I agree with you, the Ninth
Circuit gets it wrong often, but I'm talking about the Seventh
Circuit in this case.
Mr. Harcourt. Right. I don't think that in that particular
case, the Seventh Circuit was addressing the constitutional
issue that H.R. 3035 raises.
Mr. Coble. The gentleman's time is expired. And I say to my
friend from California, I was not admonishing you because you
were speaking at an accelerated rate, you were trying to beat
that red light.
Mr. Lungren. It may be difficult for you to understand from
North Carolina, but we do talk a little faster out where I come
from. Thank you.
Mr. Coble. We have been joined by the distinguished
gentleman from Florida, Mr. Keller.
Now I ask my friends on the majority side, does anyone have
any question on the second round?
Mr. Keller, the gentleman from Florida.
Mr. Keller. Thank you, Mr. Chairman. And I apologize for
not being here on the first round.
Having read the powerful testimony, I just wonder if our
Ranking Member, Mr. Scott, is now persuaded to be in support of
the death penalty. And I will yield.
Mr. Scott. Nice try, Mr.----
Mr. Keller. I will yield back the balance of my time then.
Mr. Coble. The gentleman yields back the balance of his
time.
And I want to thank the Members who have stayed with us
throughout the entire hearing. And I want to express my thanks
to the very distinguished panelists and those in the audience
who have attended very dutifully. The Subcommittee appreciates
your contribution.
In order to ensure a full record and adequate consideration
of this important issue, the record will be left open for
additional submissions for seven days. Also, any written
questions that a Member wants to submit should be submitted
within the same seven-day period.
This concludes the legislative hearing on, ``Does an
Accurate and Swift Death Penalty Deter Crime And Save Lives:
H.R. 3060, the ``Terrorist Death Penalty Enhancement Act of
2005;'' and H.R. 3035, the ``Streamlined Procedures Act of
2005.''
We will now proceed with the markup--without objection, the
hearing is adjourned and we will proceed with the markup of
H.R. 1751, the ``Secure Access to Justice and Court Protection
Act of 2005.''
Again, I say to the panelists, thank you so much,
gentlemen, for being with us.
[Whereupon, at 4:20 p.m., the Subcommittee proceeded to
other business.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Letter from Michael Israel, Editor, Criminal Justice Washington Letter,
to the Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security, and the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and Ranking
Member, Subcommittee on Crime, Terrorism, and Homeland Security
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