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22–189 PDF








H.R. 3060 and H.R. 3035

JUNE 30, 2005
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Serial No. 109–46

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
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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

MARK GREEN, Wisconsin

MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

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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


JUNE 30, 2005

    The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary


Mr. Barry M. Sabin, Chief of Counterterrorism Section for the Criminal Division, U.S. Department of Justice
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Oral Testimony
Prepared Statement

The Honorable Joshua K. Marquis, District Attorney, Clatsop County, Oregon
Oral Testimony
Prepared Statement

Mr. Ron Eisenberg, Deputy District Attorney, Philadelphia, Pennsylvania
Oral Testimony
Prepared Statement

Mr. Bernard E. Harcourt, Professor of Law/Faculty Director of Academic Affairs, University of Chicago
Oral Testimony
Prepared Statement


    Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary


Material Submitted for the Hearing Record

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    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



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.
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    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.

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    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.
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    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.
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    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.
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    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.
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    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.
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    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:]


    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.
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    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.
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    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.
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    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.
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    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.

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    Mr. Sabin, we are happy to recognize you to lead off.


    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.
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    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.
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    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——

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    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:]






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    Mr. COBLE. The gentleman's time has expired.

    Mr. Marquis.


    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.

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    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
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    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.
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    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.
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    [The prepared statement of Mr. Marquis follows:]












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    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.


    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.
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    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.
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    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.
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    Thank you.

    [The prepared statement of Mr. Eisenberg follows:]


    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.
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    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?

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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.
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    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.
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    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.
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    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.
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    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.
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    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.
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    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.
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    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.

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    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.
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    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.
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    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.
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    [The prepared statement of Mr. Harcourt follows:]


    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.
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    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.
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    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.
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    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.

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    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.

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    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——
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    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.
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    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.

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    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.
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    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.

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    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.

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    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.
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    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.
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    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.
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    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.
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    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.

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    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.
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    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.
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    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?

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    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.

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    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.

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    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——
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    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.

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    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.
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    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.

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    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.

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    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?
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    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.
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    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.
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    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.
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    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.

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    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.
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    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?
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    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.
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    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.
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    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.
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    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?
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    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?

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    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.
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    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.

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    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.
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    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.
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    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.
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    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.
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    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.

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    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?
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    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.''
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    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.]


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