Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, I oppose the Exon-Coats second-degree amendment, I oppose it not because I disagree with its mission--which is to keep children out of the redlight districts of the Internet. With that, I wholeheartedly agree. As has become all too clear, the new information superhighway has its gritty roadside attractions: as the Senator from Nebraska has documented, some of the information traveling over the Internet is tasteless, offensive, and downright spine- tingling. I stand with him and the Senator from Indiana in condemning and deploring this stuff--and I agree that we should do something here and now to help keep it out of the hands of our kids. But I respectfully disagree with them about how we should go about doing that. I believe there is a better, faster, and more effective way to make the information superhighway safe traveling for our children. If the Exon-Coats provision passes, we will have mountains of litigation over its constitutionality, dragging on for years and years--and all the while, our kids will be doing what they do best: finding new and better ways to satisfy their curiosity. The Exon-Coats amendment would make it a crime to send an indecent communications over the Internet to anyone under 18. Although that certainly sounds good, the problem is this: in the world of the Internet--where communications are sent out to hundreds and sometimes hundreds of thousands of people all at once--a ban on material that might reach a child is tantamount to a complete outright ban. That's where the constitutional problem comes in. In the case of Sable Communications versus FCC, the Supreme Court held that indecent speech--unlike obscenity--is protected first amendment expression. The Court also ruled that although indecent speech cannot be outlawed, it nevertheless can be restricted to protect children--provided, however, that the restrictions are drawn as narrowly as possible so as not to unduly limit adult access. This is known by lawyers as the least restrictive means requirement. Or put another way by Justice Frankfurter, you can't ``burn the house to roast the pig''--which is exactly what I believe the Exon-Coats provision would do. [[Page S8346]] So I believe there will be a heated and protracted constitutional challenge to this provision. In fact, with history as our guide, such a challenge is virtually guaranteed: when Congress banned Dial-a-Porn services to minors, it took 10 years--and many different attempts by the FCC to write narrowly tailored regulations, all of which were challenged and fully litigated--for the statute to be upheld as constitutional. Ten years. Multiple rulemaking proceedings. Four different trips up to the court of appeals. I, for one, just can't wait that long. But more importantly, our children shouldn't have to wait that long. I want to get to work right now--and come up with the best and fastest way to get at this problem. That is why I support the underlying Leahy amendment. The Leahy amendment will get us going right now. It directs the Departments of Justice and Commerce to quickly come up with technological solutions-- ways by which parents can screen out of their computer systems violent, sexually explicit, harassing, offensive, or otherwise unwanted material. The Leahy measure also directs the Departments to evaluate whether current criminal laws are fully enforceable in interactive media, and to assess law enforcement resources currently available to enforce these laws. The Leahy amendment doesn't stop there: it requires that the Departments also submit a legislative proposal with their study-- outlining how best, technologically, to empower parents to protect their kids; how to amend, if necessary, our laws to better crack down on pornographers; how law enforcement resources should be allocated more effectively. What's more, the Leahy amendment puts that legislation on a fast- track schedule. That means that it would only be a matter of months-- not 1 year, 5 years, or 10 years--for us to have taken smart and effective action to get at this problem. Government censorship, in this instance, is not just a bad idea in the eyes of first amendment scholars and activists. It's also a bad idea when it comes to the eyes and minds of our children. While we might be able to shut down some of the filthy talk on the net, we simply can't do the job right this way--we can't prevent access to sexually explicit information from Finland, Sweden, Japan or other countries, all of which are part of the Internet community. I also want to say that I--and I'm sure I'm joined by many parents across the country--am also very concerned about violent material on the net. As the Judiciary Committee has learned in some detail, you can learn all about bomb-building and other ways of war and destruction online. The Exon-Coats provision doesn't address violence. The Leahy amendment, with its headlights aimed at technology to screen out violent as well as offensive and sexually explicit material, does. I believe that a technology-based solution, as advanced in Senator Leahy's amendment, is a better answer--constitutionally and practically. The market, as we speak, is already developing software and hardware to enable parents to block children's access to filth, violence, and other objectionable material. I believe it makes more sense, and will be more effective, to empower users to protect themselves and their children than to attempt a topdown model of governmental regulation. levin on exon amendment to s. 652, the telecommunications bill

Mr. BIDEN

Mr. BIDEN. Mr. President, with the death of Armand F. Cocco, Sr., I, and I might add Senator Roth, have lost a good friend, and my State of Delaware has lost one of its most conscientious citizens. With his wife and constant teammate of 47 years, Anna Zebley Cocco, he devoted a lifetime to energetic service to others. Mr. Cocco, a member of the Delaware Industrial Accident Board, was a 45-year member of the Plumbers & Pipe Fitters Union Local 74, acting as their political liaison for the union and testifying in court for workers who had been diagnosed with asbestosis. He had no formal education beyond high school, but he was a student of human nature and a skillful advocate who gained impressive achievements for his community without ever claiming any character other than that of an ordinary citizen. He was my friend for more than 25 years, but he could still surprise me with interests and talents of which I had been unaware. He never stopped. I first met Armand Cocco when I was a young man, a member of the New Castle County Council and a candidate for the U.S. Senate. It was then that he and his wife asked whether I would meet with them, and they came charging full-blown into my office with their usual brisk enthusiasm about a plan that was going to widen a four-lane highway, an expressway through one of our oldest suburban communities. As they saw it, they were going to convert this modestly busy local road into an expressway that would divide and overshadow their community, literally divide their community right down the middle. And as Anna said, it would amount to a ``Chinese wall'' in this older, stable community. They were determined to stop it, with the determination they shared, confidently and persistently, with Delaware public officials of both major parties. I know it will surprise no one in this body that energized citizens often change the outcome of a predetermined decision. A quarter of a century later, that expressway still stops literally at the threshold of the community they were so resolute in defending. If Armand and Anna Cocco were a political force to be reckoned with-- and they certainly were--they were also friends whose support could be counted on by public officials in both parties, as our Democratic Governor Tom Carper could tell you and my Republican colleague, Senator Roth, as well as my Republican colleague, Congressman Castle could testify. Armand Cocco was an adroit and accomplished political activist but no party could claim his exclusive allegiance. No party could claim a narrow partisan interest on his part, but he consistently worked for the public interest. He was a very demanding citizen, but he never asked more than he was willing to give. And shoulder to shoulder, along with his remarkable [[Page S8134]] wife, Anna, he would work with whomever was willing to work for the public interest. Anna survives him, and I am confident she will continue to get things done, although she has lost a very, very potent partner. Mr. President, no one, no community, can lose a friend like Armand Cocco without feeling sad, but the sadness attending his passing has an especially melancholy quality for me and many of his friends because we fear that in losing him we are also losing one of the last examples of American value and of an American personality that we can ill-afford to move on without--the public-spirited private citizen with a traditional sense of community responsibility that has historically enabled us to deal with a range of social problems that simply lie beyond the capacity of government alone to resolve. The balance between public interest and private interests, the tension between individualism and community responsibility, has been losing the equilibrium that de Tocqueville identified over 150 years ago as the secret to our American democracy. That growing imbalance is perhaps our greatest national problem today, but it was never a problem for Armand Cocco. He was as strong a personality with a keen sense of the individual as anyone I have ever met. But he knew how to strike a proper balance between his personal aspirations and the needs of his community. He was and will always remain among all those who knew him a model of good citizenship in a democratic society, and an assurance that our democracy will survive if we take his lifelong example to heart. Mr. President, a very personal note. He was also a loyal friend to my deceased wife. When she passed away, it was Armand Cocco who went to the citizens of that small community and asked that the park be dedicated in her name, the name of which it still carries. And lastly, I was on my way down here to vote on Friday, but the funeral was Friday. I thought it was important to vote, but I decided-- and I must say it publicly to my constituents--it was more important for me to go to the funeral because of a public man like him, who had contributed so much; so I did not come down. I went and expressed my sympathies to his wife, Anna, and to his daughter, and all of the family. I thank the Chair for its indulgence and allowing me to speak.

Mr. BIDEN

Mr. BIDEN. I will reserve the remainder of my time. I yield the floor.

Mr. BIDEN. I would like to describe another case: Fred Macias. He was convicted of murdering two people in their homes. The main evidence was the testimony of another man who admitted having been in the house when the murder occurred, but who then claimed Macias was with him and committed the murder. Macias' lawyer did such a poor job. He did not investigate and discover a credible witness who provided an alibi. The State court rejected Macias' claim that his lawyer had failed to give him an effective representation. Only when a Federal court looked at the fact an innocent man was facing the death sentence was the conviction thrown out. [[Page S7845]] The prosecution still tried to reindict Macias, but on being presented with all the evidence, a grand jury in that same jurisdiction refused to indict Macias again. Again, as I read the Hatch-Specter bill, the Federal court would have been forced to defer to the State court. So I would like to also point out another case, that of Hurricane Carter, which has been referred to. Carter was convicted of the murder of three people--despite the fact that he did not match the physical description of the killers, and was sentenced to life in prison. The prosecution used the eyewitness testimony of a thief who at first denied seeing Carter at the scene. But the police then showed the witness a manufactured lie detector test that falsely showed he was lying.--In the face of this pressure, the witness changed his testimony. The fact that the witness had been pressured into his testimony using a false lie detector was not disclosed to the defendant, and was concealed from the jury. The New Jersey Supreme Court upheld the conviction--but the Federal courts concluded that the prosecutor had unconstitutionally withheld evidence favorable to Carter. After habeas was granted, the State dismissed the indictment rather than seek a retrial in which it would have to give all the evidence to the defendant. The deference rule in this bill would have prevented the Federal courts from correcting the State court's decision that the prosecutors had not violated the Constitution. In fact, in that case, the State of New Jersey tried to win the case by arguing that the Federal court should defer to the State court. The Federal court instead exercised independent review, and ruled for Mr. Carter. Let me also discuss the case of Walter McMillian. McMillian was convicted of murder and sentenced to death. The main evidence at trial was the testimony of a white man who claimed to have been an accomplice, and who was granted immunity. Two other witnesses testified that they had seen McMillian's truck in front of the dry cleaners. The jury ignored the testimony of a number of friends and family members who said he was at a fish fry. After trial, a new investigation showed that the alleged accomplice who testified against McMillian at trial did not even know him at the time of the offense. That, in fact, he had denied McMillian's involvement in three interviews before finally fingering McMillian. That witnesses who claimed to have seen McMillian's low-rider truck could not have done so since the truck was not a low-rider at the time of the offense. That the accomplice had complained to prison doctors that he was being pressured to frame McMillian, and that the doctors told the prosecutors about this before trial. And that the State had interviewed other inmates who said the ``accomplice'' had told them he was going to frame a man. The new investigation into the McMillian case showed that all of this evidence was withheld from the defendant at trial. Despite this new evidence, the Alabama trial court refused to grant relief, turning down the constitutional claims about perjured testimony and Government misconduct. Eventually, the Alabama Appeals Court reversed. But, had the Alabama Appeals Court come out the other way, the deference language would have barred the Federal court from preventing the execution of an innocent man. While my colleagues rightly point out the crush of repetitive petitions--many of which are frivolous, they leave the impression that habeas is no longer needed. The cases I have just described demonstrate how important it is to preserve independent Federal review. While most State courts try to apply the law properly, sometimes they fail because of police or prosecution misconduct, or simply because they make mistakes. Here are a few more examples of recent cases in which Federal courts granted habeas relief: In Brown versus Lynaugh (5th Cir. 1988), Habeas relief was granted because the presiding judge left the bench, took the witness stand and provided evidence against the defendant. Even though that type of conduct seems to make the trial patently unfair, the State court didn't think so. The rule of deference has prevented the Federal Courts from correcting that error. In McDowell versus Dixon (4th Cir. 1988), the conviction of a dark-skinned African American was reversed because the prosecutor had withheld eye-witness statements that the assailant was white. The state courts found that this error did not deprive the defendant of a fair trial. The Federal court overruled and granted habeas relief. The deference rule would have prevented the Federal courts from granting relief. These cases demonstrate that habeas corpus is still needed--and that injustices continue to occur. Without habeas, those injustices would be left to stand uncorrected. conclusion Everyone agrees that there is a need to end the delays and that the current system just doesn't work right. But I also think everyone would agree that we should have a fair process--one that does not execute innocent people. We know that most prosecutors and most law enforcement officers are honorable. Most cases proceed fairly, and we can have confidence in the result. But occasionally, prosecutors or cops act in bad faith--and there are cases which have demonstrated that. And, as we all know, our judicial system can make mistakes--and has done so. The recent case of Kirk Bloodsworth is one example. Bloodsworth was convicted and sentenced to death for the rape and murder of a young girl. After a new trial, he was again convicted and sentenced to life in prison. Subsequent DNA testing confirmed his innocence. Bloodsworth lost 9 years out of his life because of an error in our legal system. He was lucky to escape with his life. Mistakes do happen. Innocent people are convicted and sentenced to die. Habeas corpus has existed to correct such errors--and to ensure that there will never be another Leo Frank--that there will never be another innocent person--man who is executed. I urge my colleagues to support this amendment. I hope that the Senator from Utah, when he gets an opportunity, will respond to my question relating to the case I raise. I thank the Chair for the time. I yield the floor.

Mr. BIDEN. Mr. President, before he does that, I would like to be able to speak for 5 minutes to my amendment.

Mr. BIDEN. I am delighted to yield.

Mr. BIDEN. Mr. President, let me very briefly state where we are right now. You can see the staffs scurrying around here. We have reached a meeting of the minds on two-thirds of the amendments that I have offered here. The staff is trying to get precise language that would accommodate the mutual agreement we have made here thus far. But there is going to be one part of my amendment that is still going to be pertinent, and I will speak to that later. But the distinguished Senator from Pennsylvania and I would like to enter into a brief colloquy on what I think will be the only remaining part of disagreement in the Biden amendment that was sent up. Very briefly, Mr. President, there were two sections of the Biden amendment, one relating to counsel for an indigent in the filing of a habeas corpus petition. The second provision is what the Senator from Utah spoke to, and that is the ability under present law for the counsel of an indigent person to go to a judge, without notifying the prosecutor he is going to the judge, and in private--we call it in camera--say, judge, I need you to authorize my ability to go hire a psychiatrist for the following reasons, or hire an investigator from Utah is worried about that provision and suggests that that portion of the law is presently being abused. I do not believe it is abused. I want to make a very brief statement now as to why I think that and why I am going to pursue in my follow-on amendment here the elimination of the provision in the Republican bill that would delete the possibility of an indigent defense counsel going to a judge on his own. The reason for that is as follows: Right now, if I am a prosecutor and I get a lead as to how I can make my case better to prove the defendant did the deed, I can hire--I can use--an investigator to go investigate that. If I believe there is a need to make a case that the defendant is, in fact, perfectly sane and not insane, I can hire a psychiatrist. I can use investigative tools without ever having to go to the defendant's counsel and say, ``By the way, here is what I am going to do. I am going to hire this psychiatrist to prove that your defendant, your client, is sane.'' Or, ``I am going to hire two investigators to go down to Second and Vine and prove that the stoplight does not exist there,'' or whatever. So no one quarrels with that. If I am a lawyer who is hired by private funds to defend an accused person, I am not required to telegraph to the prosecutor that I have hired a private detective to investigate a lead in a particular city. I do not have to tell the prosecutor that. My worry is that if we change the law as proposed in the core legislation, that what will be required for an indigent defense counsel is to walk into court, walk into the chambers of a judge and say, by the way, judge, we better call in the prosecutor, and sit the prosecutor down and say, now I want to say, judge, I need your authority to allow me to go hire an investigator. Here are the reasons that I want to hire the investigator. The prosecutor is sitting there taking notes about my case. Now, that is why I think we should not delete this portion of the law.

Mr. BIDEN. Madam President, the Oklahoma City bombing and the earlier bombing of the World Trade Center demonstrate clearly that the United States must respond seriously to those--whether foreign or domestic-- who seek to make their point through the mass killing of Americans. These events demand that we examine our current laws and practices to ensure that we are doing everything that is necessary and appropriate to guard against the threat. We must take strong action to counteract terrorism, both foreign and domestic. There are steps we can take and should take. Let me outline the key terrorism proposals from the President's bill that are contained in the substitute we will vote on shortly. These provisions include: A new offense to assure Federal jurisdiction over all violent acts which are motivated by international terrorism. This provision will cover gaps in current Federal law--for example, a terrorist who commits mass murder on private or State-owned property may now be subject only to State court jurisdiction. This offense carries a new death penalty, complementing the terrorism death penalty in last year's crime bill. The bill will implement an international treaty to require a detection agent to be added to plastic explosives. It will enhance the Government's ability to obtain consumer credit reports and hotel/motel and vehicle rental records in foreign intelligence investigations. It does not change the law governing such information for domestic investigations. It gives the Government greater ability to exclude from entering the United States those aliens who are involved in terrorist activities. Let me also mention the amendments offered by Democrats to add tough law enforcement provisions to the Republican bill. The Lieberman amendment, which was adopted, expands wiretap authority. It gives new authority for multiple-point wiretaps provided to Federal law enforcement. Another Lieberman amendment, which was defeated, with no Republicans voting for it, gives authority for emergency wiretaps--identical to authority currently available for organized crime investigations--in terrorist investigations. The Feinstein amendment, which was adopted, requires taggants. It gives authority to Secretary of the Treasury to require taggants in explosives. Taggants assist law enforcement by providing a means to trace the source of an explosive. The Nunn-Thurmond-Biden-Warner amendment, also adopted, gives new assistance against chemical and biological weapons. The posse comitatus exception to allow the use of military to assist in the investigations of chemical and biological weapons. The Kerrey amendment, also adopted, increases funding for Federal antiterrorist enforcement. It adds $262 million for ATF new explosives investigators and for Secret Service security initiatives. The Boxer amendment, again, adopted, increases penalties for gun and explosives crimes. It extends statute of limitations for National Firearms Act offenses. A Levin amendment, adopted by the Senate, increases penalties for the use of explosives. A Feinstein amendment, again, adopted, prohibits the distribution of bombmaking material intended to be used for a crime. A Leahy amendment, first as adopted, assists victims of terrorist attacks. It provides assistance and compensation for victims of terrorist attacks. The Leahy-McCain amendment, as adopted, raises special assessment on criminal penalties. The Specter-Simon-Kennedy amendment, as adopted, deports criminal aliens. It enhances protection of classified information when deporting alien terrorists. Another Feinstein amendment, also adopted, increases international efforts against terrorism. It prohibits arms sales to countries who are not cooperating fully with U.S. antiterrorist efforts. Particularly with these tough amendments now added to the bill, this counterterrorism is a big step forward [[Page S7857]] in giving law enforcement new tools to fight and prevent terrorism. I urge my colleagues to support the bill.

Mr. BIDEN. Mr. President, even Justice Rehnquist publicly stated that this full and fair doctrine goes further than is wise, and the Supreme Court, reflecting that view, has on at least five occasions refused to apply this doctrine. Let me give some of the cases. The effect of the deference rule is best illustrated, I think, by looking at some of the real-life cases. The last time the Federal courts were required to defer to State courts, we executed an innocent man. That was in 1915. There is a chart I have to illustrate that. Leo Frank, a Jewish man, had been convicted and sentenced to die by a jury intimidated by an angry lynch mob outside the courtroom. The mob could be heard inside the courtroom. Mr. Frank's lawyers were so intimidated that they left the courtroom at times because they feared for their lives. Nevertheless, the State court reviewing the conviction concluded the trial had been fair and upheld the conviction. A majority of the Supreme Court voted to uphold the conviction and, after determining that they were required to defer to the State court decision, upheld the conviction. The dissenters thought independent review was appropriate and, on that basis, they concluded that the State court decision was wrong. The Supreme Court applied the rule of deference in 1915, and Mr. Frank was killed in prison by an angry mob, and later the actual offender confessed and Frank was posthumously pardoned. But because of the deference rule, an innocent man was executed, and that is what is at stake today. We are talking about going back to the 1915 standard. Several years later, after the Frank case in Moore versus Dempsey, 1923, the Supreme Court was faced with another similar case. Again, this time several African-American men were on trial for murder, which they claim was self-defense, when a mob attacked them in their church and set the church on fire. At the trial, the same mob armed and surrounded the courthouse. The State court held that there had been no violation of the constitutional right to a fair trial by an impartial jury, notwithstanding those little incidental facts. This time, the Supreme Court rejected the deference rule and concluded that independent review is required and the dissenters argued that the Federal court should defer to the State court decision and voted to uphold the conviction. Many years later, in the famous 1953 case of Brown versus Allen, the court considered a case in which the defendant had confessed after being subjected to psychological and physical coercion, sleep deprivation, and other types of pressure that put the confession and the resulting conviction in serious doubt. The State court found the confession to be voluntary, notwithstanding the circumstances. The Supreme Court overturned the conviction, applying independent review. Had they been required to apply this standard, they would have been required to hold that person guilty, even though he had been subjected to psychological and physical coercion and sleep deprivation before the confession was granted. These Supreme Court cases, and others I will not take the time to go into, illustrate in concrete terms what the effect of the deference rule is. There are also lower court cases in which habeas relief has been granted. These cases would be decided differently under the deference rule. Consider the recent case of Herrera, who was convicted of murder and sentenced to death. The State court denied his appeal and the habeas petition. A few months ago, a Reagan appointee of the Federal bench granted habeas relief because the prosecutor had threatened and intimidated witnesses and failed to disclose evidence that proved Mr. Herrera innocent and knowingly used false evidence in a closing argument to the jury. That was not some wacko liberal judge appointed by a liberal President. That was a judge appointed by Reagan. If, in fact, this law had existed at the time, he would not have been able to make that judgment. For instance, one woman told the police Herrera had not committed the killing. She was threatened by a police officer who said he would take away her daughter unless she cooperated. The prosecutor knew this. The prosecutor also insisted she change her testimony to implicate Herrera, and the judge found many other such violations of law, but the State court concluded, no, he was guilty; the conviction should stand. The Federal court corrected it. Based on this severe misconduct, this Reagan-appointee judge said but for the conduct of the police officer and the prosecutor, either Herrera would not have been charged with the offense or the trial would have resulted in acquittal. The prosecutor's misconduct was designed to obtain a conviction and another notch in their guns despite the overwhelming evidence that another man was the killer and the lack of evidence pointing to Herrera. This remarkable finding that a constitutional violation would put an innocent man on death row would not have occurred under the Hatch- Specter bill. The same claims had been made to the State courts. There was nothing new in the Federal court habeas petition, but the State court found that they did not amount to a constitutional violation. If the bill's deference rule had been in effect, the Federal judge would have been foreclosed from correcting the State court's decision and saving an innocent man's life. Let me pose the question to Senator Hatch. In the Herrera case, the court was confronted with various questions, including whether the conduct of the police officer, when intimidating witnesses and withholding evidence, amounted to a violation of the Constitution. I would like to ask him when he comes back, would not his bill, which requires deference to the decisions of the State court, have prevented the judge from granting Federal habeas relief?

Mr. BIDEN. Mr. President, I ask unanimous consent, although I have much more, that I be allowed to have 7 more minutes.

Mr. BIDEN. First, the language sets out clearly what the general principle is. The general principle in this language in the Hatch bill is that Federal courts shall not grant a claim that was adjudicated in State court proceedings. That is what is at the top. It seems to me that is what the sponsor of this bill views as the most desirable outcome in a habeas petition. Of course, this is directly contrary to the purpose of habeas corpus, which is to have Federal courts, and in particular the Supreme Court, decide issues of Federal constitutional law. The second problem, in this instance, the bill seems to allow an exception to the general rule but one that is likely to be illusory because a claim can be granted only if the State court's application of Federal law to the facts, before it was unreasonable, not merely wrong but unreasonable. It could be wrong but viewed as reasonable. This is an extraordinary deferential standard to the State courts, and I believe it is an inappropriate one. It puts the Federal courts in the difficult position of evaluating the reasonableness of a State court judge rather than simply deciding whether or not he correctly applied the law, not whether he did it reasonably. You can have a reasonable mistake. They could reasonably conclude that on a constitutional provision, it should not apply, when in fact the Supreme Court would rule it must apply. Reasonable people could have reached the conclusion prior to the application of the Miranda decision that it was reasonable not to tell someone their rights. That is a reasonable decision. It may not be born out of animus. The Supreme Court said no. You have to tell people their rights. A reasonable standard of review is the lowest standard used by Federal courts. In reviewing the constitutionality of statutes, for example, in cases where courts used the reasonable or rational standard, it looks only at whether there is any rational basis supporting the statute. It is a cursory standard of review. In fact, looking at thousands of cases since the late 1930's, our Supreme Court has found--to the best of my knowledge--no statute invalid when they have applied the reasonable standard. Reasonable people, like Senator Hatch and I, are going to be arguing on the floor about the regulatory reform bill and about the takings clause and all of those issues, right now if the U.S. Congress passes a law saying you cannot have more than 2 parts per billion of a carcinogenic substance in the liquid effluent coming out of your factory, the Supreme Court says not whether that does or does not cause cancer, they say it is reasonable for those folks in the Senate and the House to conclude that is dangerous and, therefore, they will uphold the statute. It is the lowest standard. It is one thing to apply that when we are protecting the public against environmental pollution. It is another thing when we are applying that standard to the application of constitutional rights to individuals. There we have always applied the highest standard. The Government has been required to meet the highest standard before they can put someone in jail or put them to death. This reasonableness standard reduces to its lowest common denominator. The court also uses a reasonableness standard in reviewing Federal agencies' interests, and the administrative statutes. I will not get into it now. But the Chevron case and others are cases we debated about whether or not, in applying civil law, which standard we should apply. But the bottom line is this, folks. If the standard is reasonableness, it is the lowest common denominator. And, if the Federal court is required to give deference to a State court on the grounds that it acted reasonably as opposed to correctly, a lot of folks--I should not say a lot; I do not know how many--but there will be individuals who will be put to death where they otherwise would not have been put to death if the Federal court were able to apply the standard that determines their ability to go back and look at the facts and the law and make an independent judgment. By the way, let me say the whole reason to have the ability of a defendant to go into Federal court is to allow Federal judges to apply the Federal Constitution and determine whether they think the State court applied it correctly. But if you limit what they can look at and the standard they use in review, you have in effect undercut the very rationale for allowing the defendant to get into that Federal court in the first place. The third problem with this language is the bill's reasonableness exception is limited not only by the requirement that the decision must have been unreasonable, but that it must have been unreasonable in light of Supreme Court law. So even if there is a Federal court decision directly on point, the State court could ignore it as long as the application of law had not been directly decided by the Supreme Court. As the Presiding Officer knows, as a former prosecutor and a first- rate trial lawyer, there are a number of lower Federal court decisions that never get to the Supreme Court because no one bothers to conclude that they were wrongly decided. And they are accepted as Federal law. In this case, you could have all the districts or the circuits agreeing on one application of the law, and the State court ignore what the Federal courts have said because there is no Supreme Court decision on point. That seems to me to be a very dangerous precedent. Even so, if there is a Federal court decision directly on point, under this language, the State court could ignore it as long as the Supreme Court has not spoken to it. In other words, State courts could ignore the decisions of the lower U.S. courts interpreting the Constitution without any prospect of being corrected by Federal courts. For example, an appeals court recently held that a defendant cannot be prosecuted criminally and have his property forfeited under the civil forfeiture laws because of the double jeopardy clause prohibiting that. That ruling is clear. It is unambiguous. But it is not a Supreme Court ruling. Under this bill, a State court, which subsequently refused to follow that interpretation, could not be corrected by habeas corpus review because it could never get back into the Federal court system. This limitation on Supreme Court laws is particularly nonsensical because the Supreme Court generally does not accept for review decisions by circuit courts of appeal unless there is a split in the circuits, as the Presiding Officer knows. If all the circuits agree on a principle of law, the Supreme Court would have no reason to address it. So under this standard that we are about to write into the law, a State court could ignore a rule that all the circuit courts agreed on and no Federal court could correct that State decision. That is preposterous; maybe unintended, but that is the effect. Fourth, the exception to the general rule in habeas shall not be granted if the State court ajudicating the claim is further narrowed by the language in the statute requiring that the Federal law at issue must have been clearly established. Not only must the decision of the State court have been unreasonable, and not only must it have been unreasonable in light of Supreme Court law, not Federal law, but it must have been unreasonable in light of Supreme Court law that is clearly established. The one thing we know is that where lawyers are involved, there is little that can be said to be clearly established. So where the application of a U.S. Supreme Court decision to a new set of facts is unclear, the State court need not worry about it. For instance, the Supreme Court quite logically has held that the prosecution must give to the defendant any evidence it has that is favorable to him. It is called justice--justice. This is not a game. Prosecutors are not [[Page S7843]] there to determine whether they can win. They are there to do justice. And so the Supreme Court has said that, if the prosecution has at its disposal evidence that goes to the innocence of the defendant, that has to be made available to the defendant. But is a certain kind of evidence favorable to the accused? That might not be clearly established. And so the State courts will be free to go their own way. For example, a clear case would be assume that in the State court, the prosecutor had evidence there were two witnesses at the same time who said the defendant did not do it. Well, they cannot withhold that from him. But they may conclude at the State court level that they have evidence there is a motel receipt that indicated the defendant was at such and such a place when this crime was committed. They can reasonably conclude at a State court level we really do not think that goes to the innocence, that is not favorable to the defendant, that is a marginal question so we are not going to tell him. Now, what you have to do, if you are filing a Federal habeas corpus appeal to get them to go back and get them to look at that, you have to prove that judgment was unreasonable even though there is a Supreme Court decision out there saying you have to make things that are favorable to the defendant available to the defendant, because it is not clearly established law, because it is not around long enough to have been applied to 10, 20, 30 fact circumstances. Now, it seems to me that we are requiring an awful lot of hurdles and limitations on what a Federal judge can look at once we get to court. Again, keep our eye on the ball here. We are not talking about successive abilities to get into Federal court. We are not talking about extended time limits to get into Federal court. We are not talking about whether or not you can get into Federal court repeatedly. We are only talking about when you get to Federal court what is the Federal judge able to look at. And right now the Federal judge is able to look at the whole thing from ground up if he wants to. He can make an independent decision based on what the specific statement by the defendant is in his petition as to why they should be granted a new trial. They can go back and look at the facts in the case and the law and apply them in conjunction with one another. So let me summarize what I think this language in the Hatch bill says. First, it states that habeas relief cannot be granted by a Federal judge if a State court has adjudicated the claim, which is directly contrary to the entire purpose of Federal habeas corpus. Second, it creates what looks to be an exception but one that is largely illusory. It requires that a State court merely behave reasonably--not correctly, reasonably. It requires that a State court merely act reasonably in relation to a Supreme Court decision, not in relation to decisions of lower Federal courts in their State. And it requires them to act reasonably only if the Supreme Court law can be said to be clearly established. All this amounts to is that State courts in almost every case will be free to reach virtually any decision without any chance of Federal review later. This rule, the so- called rule of deference, turns habeas on its head. The purpose of habeas is to correct State court errors. But if Federal courts have to defer to State court decisions, they will not be able to correct their mistakes except in the most egregious circumstances. Now, through the years we have fought in this Chamber battles over the so-called full and fair standard, essentially what Senator Kyl had introduced. At least he was straightforward and blatant about it. He said: Look, my purpose here is to do away with any State prisoner being able to get into a Federal court, period, and because the Constitution says you can go to the Supreme Court under rare circumstances, I am not going to try to eliminate it. But he said 40 percent of the delay is in Federal court, so what I am going to do is do away with the ability to get into Federal courts. Straightforward. This provision suggested by my Republican friend essentially does the same thing, making it sound like we are really letting someone get in. Admittedly, the most egregious cases, which would not be captured by the Kyl amendment, would be captured in this amendment. But the vast majority of cases are in a gray area. And again my proposal to delete this standard will in no way slow the process up and will in no way increase the number of opportunities that a prisoner has to file a petition. While this language looks different than full and fair, the language in this bill would have virtually the same effect. It would prevent Federal courts from granting relief for a violation of the Federal Constitution because it would require deference to the State decision unless that decision were unreasonable. Being wrong would not be enough to get it overturned. It would have to be unreasonable. If I can make an analogy to the Presiding Officer--who is the only one here at the moment and so that is why I am speaking to him, although I always like to speak to him--it is like this deal with good- faith exceptions to the fourth amendment, search and seizure. All of a sudden, by the way, my friends on the right side of the Chamber, my right and on the ideological right, all of a sudden are beginning to realize: Wait. Maybe we do not want to do away with that so quickly. But at any rate, there is an exception that if a cop violates the fourth amendment but did it in good faith, it should be admissible in court. Well, you can theoretically argue that makes sense. But how about where a court wrongly but in good faith, in good faith wrongly decides a provision in the Constitution, wrongly decides it, the result of which is the person goes to death. Are we going to reward ignorance? Are we going to reward reasonableness just because it came from the State? It may be reasonable that he reached that decision but wrong. Wrong. This would preclude Federal courts from looking at the merits-- whether it was wrongly decided. They only get to do it if it meets the threshold that it was an unreasonable application of the facts and the law. When the Supreme Court announces a constitutional wrong such as the right of the defendant to know about evidence held by the prosecutor that suggests he is innocent, it necessarily leaves open the question of how that general rule applies to specific facts. Does that mean evidence that could be used to impeach a witness must be turned over? How strong does the evidence need to be before the requirement kicks in? The Supreme Court cannot possibly decide all of these issues in one case. But lawyers arguing in courts will be able to come up with all sorts of different ways of applying that general rule in individual cases. And many of those ways of applying them may be reasonable. That means that Federal courts will be unable to review State decisions through habeas corpus and begin to establish some uniform law in that portion of the country. Instead, virtually any decision a court reaches will have to be considered acceptable solely because it was reasonable. I ask everybody listening to this, do we want 25 different interpretations of what is reasonable? Do we want 25 or 50 different versions of what is reasonable? That flies in the face of the notion of a uniform application of the only unifying document that exists in our Nation, the U.S. Constitution. This would mean that the Federal Constitution would be determined by State court judges. Placing primary responsibility for the Federal Constitution in the hands of State courts is a dramatic departure from this country's historical principle, and that is that it is the Federal courts that should be the final arbiters of Federal law. It would relegate us to a system in which the 50 State court systems and in fact the individual judges within those systems are the separate and ultimate arbiters of what the Constitution means. The meaning of the Federal Constitution could be different, depending on what State you are in. Independent review is the only sensible approach, I suggest. Even Justice O'Connor has said in rejecting a judicially created full and fair rule--which is what this rule is--that: We have never held in the past that Federal courts must presume the correctness of State court legal decisions. Let me stop there and read it again: We have never held in the past that Federal courts must presume the correctness of State court legal decisions. This requires us to presume--presume--the correctness of State court decisions. I am not certain that the State of Mississippi would apply the Constitution the same way the State of New York would, as the State of California would, as the State of New Hampshire would. I do not know if anybody else is very sure of that. Let me go on and read the entire quote from Justice O'Connor: We have never held in the past that Federal courts must presume the correctness of State court legal decisions or that State courts' incorrect legal determination has ever been allowed to stand because it was reasonable. We have always held that Federal courts, even on habeas, have the independent obligation to say what the law is. That is the Federal constitutional interpretation by the Supreme Court. I quote her again: We have never held . . . that State courts' incorrect legal determination has ever been allowed to stand because it was reasonable. This would allow incorrect State court decisions to stand because they are reasonable, although incorrect. That quote, I might add, was from Wright versus West, decided in 1992. Even Justice Rehnquist----

Mr. BIDEN. Mr. President, let Members be clear about what we are talking about. A petition for habeas corpus--I want to complicate this--a petition for habeas corpus is literally and simply a piece of paper on which a State prisoner says, ``I have been denied my constitutional rights in the following way,'' and takes that paper or has his lawyer take the paper and file that in a Federal court. In almost all instances, this is after his remedies have expired in a State court system. The issue is whether he or she should be able to file that in Federal court and under what circumstances. The piece of paper that a habeas corpus petition is written on says that the prisoner claims to be held or sentenced to death in violation of the Federal Constitution, the U.S. Constitution. It does not ask that the prisoner be released, but it does ask that he be given a new trial. Habeas corpus is the means by which Federal courts ensure that State those in jail or on death row were not only not put there mistakenly, but that they were not put there in violation of the U.S. Constitution. I might add, if we, in fact, eliminate Federal habeas corpus or in effect eliminate Federal habeas corpus, what we do is we leave to 50 different States the potential for 50 different interpretations of fact and law. We all know if a Federal court makes a judgment on a Constitution in a circuit or in a district, it usually goes to a circuit, and then to the Supreme Court. We get a final national judgment on how to read that provision and that fact/legal mixture under the Federal Constitution. We have a uniform application of the law. The writ of habeas corpus, known historically as the ``great writ,'' is enshrined in the Constitution itself, which provides that ``The writ of habeas corpus shall not be suspended,'' article I, section 9. Unfortunately, under the current system, guilty people can sometimes delay their death sentences by filing frivolous habeas petitions. There is no time limit on when the petition has to be filed, and there is no statutory limit on the number of petitions. I have, in years past, proposed legislation that would reform this system to generally limit a petitioner to one petition in Federal court, and to impose strict limits on when that petition had to be filed. But my legislation also recognized in that one round of Federal review, the prisoner is allowed and must be allowed a full and careful review to ensure that we do not execute innocent people. The death sentence is unlike any other. There is no turning back once it has been carried out; to state the obvious, a mistake cannot be fixed. Because of that, we cannot allow the death penalty to be used against innocent people and we cannot allow it to be carried out unfairly. I am certain all of my colleagues would agree that, although the death penalty should be applied swiftly and with certainty, the worst thing in the world would be for it to be applied wrongly. My amendment tries to preserve the important role that habeas plays, while reducing delays. It strikes at what I believe is the issue that truly rises above all else in the Republican bill. It strikes the provision in the Republican bill that I think is the most troublesome, and that is the so-called rule of deference, which has been known around here the last 20 years that I have been here as the full and fair rule. This, in my view, and probably in the view of advocates of both sides of the habeas corpus debate, is the single most important provision of the Republican bill and the single biggest difference between my approach and their approach. As the chart I have just had put up illustrates, when it comes to speeding things up, Senator Hatch and I are in the same spot. Both our bills have time limits on when a petition can be filed. Both our bills have limits on successive petitions. But our bill differs when it comes to the issue of deciding these petitions. I said the Federal courts should exercise independent review while the Specter-Hatch bill requires Federal courts to defer to the States. It is important to realize that the deference standard in the Specter-Hatch bill effectively makes the rest of the bill irrelevant. After all, what difference does it make what the time limits are if the Federal courts are going to be precluded from examining what the State courts did in any event? What difference do the time limits make? That is the fundamental difference in our approaches, because that is what the result of the Specter Hatch bill will be. Let me give a hypothetical example. Suppose an innocent man is charged with a capital crime and during the investigation one of the witnesses identifies someone else as having committed the crime other than the defendant, a fact which is concealed from the defendant. And there are cases where this has occurred. At trial the witness identifies the defendant, the innocent man, even though the prosecution has in its possession the evidence that another witness identifies someone else as having committed the crime. But at trial, the second witness identifies the defendant, the innocent man. In addition, the witness testifies that he has never met the defendant before when, in fact, the prosecutor knows that the witness harbors a grudge against the defendant, the witness who identifies the defendant. Now, the prosecutor goes ahead and does not tell the defense about the details of what the witness previously said, that he previously said, no, I identify somebody else, and where the prosecution knows that the identifying witness has a grudge against the defendant. The State courts go ahead and uphold the conviction anyway, reasoning that the truthful evidence would not actually prove the defendant innocent. Let me get this straight now. If in a trial the stenographer here is accused of killing John Doe and the prosecutor interviews me as a witness. I say no, he did not kill John Doe, Charlie Smith killed John Doe. But then I say, no, I change my mind. I think he did kill John Doe. The prosecutor investigates and finds out that the stenographer and I have hated one another for the last 20 years, or I have held a grudge against the stenographer because he took down one of my speeches incorrectly. They never do that, I might add. Now, the prosecutor does not tell the defendant about my grudge against the defendant and about the fact that I initially identified somebody else. So, now there is a trial and he is convicted. After the conviction takes place, he files a petition for the writ of habeas corpus and proves that this information was withheld from him; that it would have made a difference to the jury. And the State court of Delaware says: No, no, even if that is true, it does not prove that he is innocent. It just proves that I have a grudge against him and it just proves that the prosecution was not totally honest. But it does not prove his innocence. Therefore, hang him. Or, in Delaware, lethal injection. Now, the fact of the matter is under the language of this bill the State court's decision on this issue, that is the scope of the prosecutor's duty to turn over the information, would be the absolute last word because, as long as the State court decision could be described by a lawyer as being reasonable, the Federal court could not overturn it. In this example, an innocent man may be put to death because, under this bill's provisions, the issue before the Federal court would be, was it reasonable for the State court to say that they are upholding the conviction because the information withheld would not have proved his innocence? The probability is the Federal court would have to say that is reasonable. It may not be right. We might not have decided it that way, but it is reasonable. A reasonable man could say, all right, even if the jury had known this, it did not prove his innocence. They still may have convicted him. The Republican bill says: An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim * * * resulted in a decision that * * * involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. That is a heck of a standard to have to apply. So, I say goodbye to the stenographer. He is off to death row. He probably thinks he is off to death row when he has to come out here and take down my speeches. But he is off to death row. Because even though--even though--the prosecution withheld evidence that goes to his innocence, instead of the court saying, ``This would have made it difficult for the jury to find beyond a reasonable doubt he was guilty,'' which would have been a reasonable conclusion to reach as well, they said ``This does not prove that he is innocent so we are not going to overturn the conviction.'' So he is gone. Because, as long as the State court decision could be described by a lawyer as being reasonable, the Federal court has to defer to the State court. The effect is there is no habeas corpus review on matters of fact and law at a Federal level. My amendment simply strikes this language. It leaves in the bill the rest of the reforms--time limits, limits on second petitions--but it strikes the deference rule and allows the Federal court. The Federal court should be able to say in that circumstance: We understand what the State court did but under our interpretation of the Constitution and his constitutional rights we believe that withholding this information was so prejudicial that he should get a second trial with all the facts being known. They should be able to do that. This would preclude them from doing that. I think there are four parts of this long sentence I read up here on the board, four parts of this long sentence which have a devastating effect. (Mr. THOMPSON assumed the chair).

Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. BIDEN. Mr. President, I thank the Senator from Maine. The Senator from Maine has a reputation in this [[Page S7840]] body of being one of the most thoughtful, and when he speaks in debates, unlike the Senator from Delaware, a most measured Senator, and one whose career has been marked by observable high points of principle. And this is, I detect, from his speech, a principled issue here. This is an important issue. This is not one where we should, quite frankly, be guided by the legitimate but sometimes not fully articulated concerns of our constituents. I believe what our constituents want is what the Senator from Maine has outlined. I doubt whether there is a man or woman in America who thinks that Hurricane Carter should not be free today. I doubt whether there are any people in America today who would have been happy had this been the law and had he been denied the opportunity to make that final plea in Federal Court. Yet, if we amend the law along the lines of the Biden amendment, which Senator Cohen supports, we would have drastically cut down frivolous appeals and drastically cut down successful appeals. As a matter of fact, there is no difference in the time limitation for filing an appeal and the number of successive appeals that are allowed between what Senator Hatch wants and what we want. The big difference in what the Senator from Maine and I are saying is the standard the court is able to apply when the Federal court looks at, as Professor Monaghan states, those mixed questions of fact and law. This would essentially not allow them to look at fact, just theoretically the law. So what I propose to do is precisely what Professor Monaghan, who is not a fan of habeas corpus, wants done. Let us be real clear right from the start here what we are arguing about and what we are not arguing about. Again, as my old buddy Sid Balick, says, ``keep your eye on the ball.'' What are we arguing about and what are we not arguing about? We are not arguing about whether or not to speed up the process of habeas corpus review, and we are not arguing about reducing the current abuses in the system. I agree with my Republican colleagues from Utah and Pennsylvania that we have to have a strict statute of limitations and a strict limit on successive petitions. Put another way, how many times after that first one, or under what circumstance, can you file another petition if you are able to at all. Nothing I am trying to do today, nothing in my amendment would change what the Republicans propose for speeding things up or cutting down on abuses. They have a 6-month statute of limitations in their bill. I am not trying to make that 9 months or 1 year or 2 years. I am not proposing to change a single word in the statute of limitations. As this chart up here shows, in the Biden amendment the time limits for filing a petition are the same as in the Specter-Hatch provision. We both set limits on time. Nothing in my amendment, nothing at all, would change what the Republicans propose for speeding things up or for cutting down on abuses. The Republicans have a new strict limit on successive petitions in their bill. Many of my liberal friends think these restrictions are excessive. I do not. I have not attempted to change a word. I have not attempted to change a word on their bill relating to successive petitions. Not a period, not a comma of their proposal is changed by my amendment. Put another way, at the end of the day, or the end of today, even if I were to win everything I am asking for, the statutory right of habeas corpus will be drastically altered from what it is today. No longer will we see a guy filing petition after petition. No longer will my friend from Utah, my distinguished friend from South Carolina, Senator Thurmond, my friend from Pennsylvania, my new friend and colleague from Oklahoma, be able to put up on a board or reference cases which are real and exist today where someone has sat, after having been convicted for a capital offense, on death row for 2, 5, 10, 12, 15, 16, or 19 years. That will not be possible if we adopt my amendment. Now, usually, the Senator from Utah has a chart out here listing the number of petitions in several cases. I am not making light of that. When he brings out that chart, if he does in his response, I want everyone to look at it and understand that if the Biden amendment passes, that would be the end of charts like that. There would no longer be an ability for a convicted prisoner, convicted of a capital offense, to be able to file those successive petitions and delay for the number of years the charts have always shown. I also point out that we will still have the problem of irresponsible State courts who do not read briefs, who do not take the time to follow through. I cannot affect that, nor can they. At a Federal level, we will have eliminated the ability to have those successive petitions. So let the Senate be clear on what we are not arguing about. What we are arguing about is whether we should dismantle the habeas corpus process by dramatically restricting the Federal power of the Federal courts to decide whether a State court got it wrong, whether a State court wrongly convicted a person, whether a State court is wrongly sending a person to death. That is what we will be changing. That is where I part company with my Republican friends. I want to fix the problem. They want to do away with the right. I want to get a habeas corpus petitioner in and out of Federal court quickly. I do not want to make it practically impossible for him to get into Federal court. I want to say you get in, and you must get in quickly, and you can only get in under certain circumstances, and you are out. The Republicans want to slam the door of the Federal courthouse closed. I know there are a lot of things about Federal overreaching, but one thing I do not think most Americans--whether they are liberal or conservative, whether they are moderate, whether they are Republican or Democrat--I do not think they believe that is a remedy, to slam the Federal courthouse door. They do not want it swinging off its hinges, but they do not want it slammed shut. What I propose is--to be able to use this silly metaphor--to be able to open the door once, walk through the door, and say, ``Federal judges, experts on the Federal Constitution, listen to my plea. Make a decision. If you decide against me, I'm out, but listen to it.'' As the Senator said, the lawyer for Hurricane Carter, and I suspect everyone else would agree he would be a man in jail the rest of his life were that door slammed shut, had it been slammed shut in the way I believe this present bill does. So that is what we are arguing about. Amendment No. 1224 (Purpose: To amend the bill with respect to deleting the rule of deference for habeas corpus)

Mr. BIDEN. Mr. President, my staff pointed out to me, as I sat down when I said we should keep that in mind, I said in jest that we should keep that in mind, my reference was to Judge Bork. I believe Powell does not support this, the Powell Commission would not support this, and that Justice Bork would. We should keep in mind the distinction. But I would also like to point out, as my staff pointed out to me, in Wright versus West, the Supreme Court case decided a couple of years ago, where the Bush administration sought to ask the Supreme Court to rule on the standard of full and fair, which is what Senator Kyl is proposing, Justice Rehnquist, from his home State of Arizona, refused to adopt the standard that Senator Kyl is proposing. He is certainly no liberal. He refused to adopt the standard and insisted that there be access to the lower Federal courts. [[Page S7837]] But I thank my colleagues for their indulgence. I yield the remainder of my time.

Mr. BIDEN. Mr. President, do I have any time left?

Mr. BIDEN. Mr. President, I yield myself the remainder of the time. Let me respond quickly to my friend's comment in response to what I had said. First of all, he said this is about winning freedom. This is not about winning freedom. Habeas corpus is granted--no freedom. It means a new trial. He points out very forthrightly that he attempts to prevent folks from going to Federal court except as it relates to being able to go to the Supreme Court. It is not the Supreme Court's job to take a detailed look at every State court conviction. It is for the Supreme Court to decide weighty issues of Federal constitutional law. That is why we have Federal courts and that is why my committee spends so much time, a significant portion of it, considering the nomination of Federal judges. Our system depends on Federal courts, all the Federal courts, being the safeguarders of Federal law. Let us just put this in very practical terms. Let us assume he is right, the State courts are fully capable and do not need any Federal review. What you end up with is as many as 50 different interpretations of the Federal Constitution; 50 different ways in which 50 different States could interpret whether or not a constitutional right has been denied or not denied. Just from a very practical standpoint that is not good policy. Whereas, when you have the appeal to the Federal court system, that becomes the law, the law of the land governing all 50 States. I also point out that the State--as the Senator said: Look, we allow folks who are convicted in State court to go to State courts for their appeal and folks convicted in Federal court to go to the Federal courts for their habeas corpus petitions. The problem is that Federal court judges are trained in their experiences in interpreting the Federal Constitution. State courts hardly deal with the Federal Constitution. They deal with the State constitutions. We should have the people who are trained and experienced in interpreting the Federal law relative to the Federal Constitution being able to determine whether there has been a violation of that Federal law or, in this case, the Federal Constitution. Last, Justice Powell, I am confident--and I am willing to bet; you are not allowed to bet on the floor--but figuratively speaking, I would be willing to bet him dinner at any restaurant in America that Justice Powell does not support his amendment. I can say that with certainty because Justice Powell's commission came forward with an explicit guarantee that there would be access to Federal courts; an explicit guarantee. They made it absolutely clear that it is essential there be access to the Federal courts. I do not doubt that Judge Bork would support this, I do not doubt that at all. In fact, I am certain he would and we should all keep that in mind. So I reserve the remainder of my time.

Mr. BIDEN. I reserve my 4 minutes.

Mr. BIDEN. I reserve the remainder of my time.

Mr. BIDEN. I thank the Senator. But there are basically three points of view on this floor in a broad sense. One is, do we maintain the status quo on habeas corpus? That is made up of half a dozen to a dozen Members on my side and one or two Members on the Republican side. And they do not want to see any change in habeas. There is a second school of thought in a broad sense represented by the distinguished Senator from Arizona, who is a capable and competent lawyer in his own right and knows this area well, as he demonstrated by his presentation. And that is to say, in effect, as I read what he says but what others have said as well, that State courts are fully competent to determine whether or not somebody's constitutional rights have been violated. And that is a respected, understood, and clearly articulated school of thought that has existed for some time and has been in a very articulate manner stated here today. There is a third school on this floor that says status quo is bad. We do not want habeas corpus to continue as it statutorily has and has been interpreted by the courts over the last couple decades. We want it changed. Now, we differ. There are limits to that third group, and they range somewhere between Senator Specter and probably me. And Senator Specter and I have been for years debating this issue, agreeing and disagreeing, but we are into that school that says, wait a minute, do not take the Federal courts totally out of this or, in effect, take them totally out of it but drastically curtail the time within which someone is able to file a habeas petition and how many times they are able to file one and what constitutes a successive petition. Now, I am certain that the Senator from Oklahoma was right when he ticked off the names of the families of the victims and said they want action. I would respectfully suggest that it is unlikely that they know the difference between a successive petition based upon probable innocence versus clear and convincing evidence. Most lawyers on this floor do not know the difference. Most lawyers who practice law do not know the difference; 85 percent of the highest paid lawyers in America, if you brought them in and sat them down in these chairs and asked them to define what a successive petition is, could not do it, could not do it. I am talking about the thousand-dollar-an-hour guys. They could not do it. Now, I do not mean that to malign the legal profession. They do not handle these cases. Death penalty cases, habeas cases are complicated. Just like I could not, if I were back in the practice of law, explain to you a complicated antitrust provision. I did not practice antitrust law. So with all due respect, what I am proposing and will propose --and my opposition to the Kyl amendment is just as likely to be acceptable to those folks in Oklahoma as anyone else's because the effect of what I wish to see happen--and I think a majority in here--is to make sure that we are no longer in a situation where this fellow Stafford could be gaining weight in an air-conditioned cell after having filed 17 petitions. If we adopt the amendment that I am going to offer after this amendment, Stafford would be dead. No more Staffords. There is no legal way in which anyone could hang around, after having been convicted of a capital offense, for 17 years, let alone 7 years, because there are strict time limits and strict circumstances under which a second petition could be filed. Now, one of the problems here is that we confuse all crimes with apples and oranges. We hear about delay all the time, and it is true, with all due respect, even the Kyl amendment will not fundamentally change the delay. If you take a look at where the delay occurs--and just pick this one case that we talk about--and I will get the second graph, if I can, about the length of delay in State courts versus Federal--the case often cited is this Guerra case, to find out how long this fellow, after having been convicted, languished in, at the expense of the taxpayers, a prison avoiding the inevitable. Of the delays that took place, only--still, there are delays--24 percent of them were because of what the Federal courts did. And 76 percent, or 9 years 2 months' worth of delays had nothing to do with the Federal courts. They were all in the State court in the State of Texas. [[Page S7832]] Leave that graph up for another moment, please. I want to make sure everybody understands. The State of Texas, under State court and State law, provided for 9 years 2 months' worth of delay. The Federal courts, having Federal habeas available, did, in fact, add to the delay, 2 years and 10 months. But let us eliminate, as my friend from Arizona wishes to do, in effect, the ability of the Federal courts to get into the game. There still would have been a 9-year-2- month delay in the execution of a man who was convicted and should have been put to death. The point is, the end result of all this was he ended up with a granting of habeas in the end. The point is, it was 9 years 2 months in the State court. In the State of California, we heard a lot of talk about how Federal habeas corpus causes all these delays. The delays in execution of the death penalty, much of the responsibility is in the State courts. The California experience: California's Supreme Court has on its docket four capital cases that have been fully briefed for over 7 years, but the State court has not even heard the argument yet. It has nothing to do with the Federal courts. You have four cases, as of a month ago, when this chart was made up for a hearing. Maybe something has happened in the last month, but as of a month ago, there were four capital cases in the California Supreme Court where the petitioners seeking redress filed their briefs 7 years ago, and the State court has not even acted yet. Translated, that means 7 years living off the taxpayers in an air- conditioned cell because the California State Supreme Court has not even looked at the briefs or, if they looked at them, have not told anybody they looked at them. The California Supreme Court has taken more than 8 years to decide 24 of the cases in which it affirmed the death penalty. One State habeas petition has been pending for 4\1/2\ years and another has been pending for 6 years. This is not even getting to the Federal court. The reason I cite this is the distinguished former Member of Congress and attorney general of the State of California, Mr. Lungren, came before our committee and said, ``The Federal courts should work like the State courts work. My State of California really knows what it is doing.'' Look at what the State of California knows. I understand the anger. I feel angry and aggrieved as an American citizen that convicted killers are in California sitting in the jails for 7 and 8 years because the court has not even gotten around to listening to what they have to say. You cannot put them to death, because they filed a petition but they have not gotten around to looking at the petition. What are we doing, though, when we decide that we are angry about that? We are saying the answer is get the Federal Government out of this, the Federal courts out of this. That does not solve the problem, but it creates another problem. The problem it creates when there is no Federal habeas corpus is bad decisions. Bad decisions made by State courts allow people who deserve another trial to not get it. Their constitutional rights are violated. A significant number of the habeas corpus petitions that are filed are granted. I admit I cannot change the State of California. I have no authority as a Federal official to tell the State of California how they should look at their petitions. But I can do one thing. When it gets to the bottom here and they finally act, under the proposal I want, they get one chance to get into Federal court, to say the State court judges did not know what they were doing on the Constitution. Keep in mind now, what I am proposing means when all this is done, within 6 months, the person in jail has to file a petition in Federal court. If they do not, they are out of luck, and they can only file a second petition under the same ground rules that my friends from the Republican Party, that Senator Specter and Senator Hatch's bill says, where we differ, which I will debate later, where we differ, Senators Specter, Hatch and Biden, is on what they are allowed to look at once they get that petition in front of them. I will speak to that later. But look, I really think, to quote my old friend Sid Balick again, ``You gotta keep your eye on the ball here.'' The vast majority of us in this body want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple. What my friend from Arizona would do would deny that one bite. I ask you, what damage is done to the Nation allowing a person who, after the fact, learns that perjured testimony was used against him; after the fact, learns that information was made available to the prosecution which went to his innocence that was never made known to him; after the fact, after the fact, after the trial, after the appeals? If you have to file it within 6 months, I do not know how much additional weight old Stafford would have gained in 6 months, but it would not have been 100 pounds. What is the alternative? The alternative, for example, in this Guerra case was when they finally got down to it, they granted his appeal. They said, ``Wait a minute, you did not get it right at the trial.'' But I, with the greatest amount of respect, suggest that although I understand the motivation, it will not speed up the process. All it will do is enhance the likelihood that a person whose constitutional rights have been denied--and those constitutional rights usually relate to whether they are innocent or guilty--whether they have had a chance to make their case. Senator Kyl's amendment would bar a prisoner even from being able to file a habeas petition if the State court system has in place what are determined to be adequate and effective procedures to test the legality of the prisoner's detention. This amendment makes clear that the State court need not have gotten the result right in a particular case and, in fact, it need not even have applied its system fairly in a particular case. All it says is they have to have had a process, and if they had a process, even though it may not have been applied fairly in a particular case, even though it may not have gotten the result right on a constitutional basis, the Federal court cannot look at it. Everyone agrees that there is a need to end the delays in the system. It just does not work right now. But I also think everyone agrees that there should be a fair process and one that does not execute innocent people. We know most prosecutors and law enforcement officers are honorable. Most cases proceed fairly, and we can have confidence in the result. Under my approach, after the first petition, most of that will be made clear. They will be rejected and they will be put to death. And I support the death penalty. The Biden crime bill is the only reason why, if McVeigh is convicted in Oklahoma, he would be put to death. I wrote the law. If he is tried in Federal court without that law having been passed, he could not be put to death. I support the death penalty. But I do not support a reasonable ability for a person, if they have a strong case, to suggest they did not get a fair trial, to be able to have one bite out of the apple to determine in Federal court whether that was true. We all know that occasionally prosecutors or cops act in bad faith, as Senators do, as doctors do, as lawyers do, as housewives do. Every one of our professions, every one of them, has some bad apples. So, occasionally, prosecutors or cops act in bad faith and there are cases which have demonstrated that. As we all know, our judicial system will make honest mistakes and has done so. The recent case of Kirk Bloodworth is one example. Bloodworth was convicted and sentenced to death for the rape and murder of a young girl. After a new trial, he was again convicted and sentenced to life imprisonment. Subsequent DNA testing confirmed his innocence. Bloodworth lost 9 years of his life because of the error in our legal system. Habeas corpus has existed to correct just such errors, and to ensure that there will never be another Leo Frank, another innocent person who has been executed. You do not have to have 17-year delays to ensure that. You do not have to have any delay to ensure that. But what you have to have is the ability of a Federal court, on one occasion, to look at the facts in the petition and [[Page S7833]] make a judgment as to whether or not a new trial is warranted. So I respectfully suggest that the debate between the Senator from Arizona and me is not about maintaining the status quo; it is about how we change the status quo. I respect the Senator's intelligence and motivation greatly. But I also respectfully suggest that his approach, A, does not solve the real problem--State court delay--and, B, takes away the one last shot, as a practical matter, that one has to get before a Federal court. Now, I will acknowledge--and I suspect he would agree--that 75 years ago Federal review was probably needed much more than it is today, because the competence of State court justices was, in some cases, de minimis. And the prejudice that existed in some States--my own included--was real and palpable, making it very difficult for some people to get a fair trial and get their constitutional rights guaranteed. I acknowledge that. That is why the Leo Frank case generated a change in statutory habeas corpus. He was a Jew and he was put to death in large part because he was a Jew. Facts were overlooked, and a decade later it became clear from witnesses that he did not commit the crime. Most States do not operate that way anymore. I will pick a State so that I am not being parochial and bragging about my State court system, and I will not brag about the Arizona State court system, which is very good. I know several of their State supreme court justices and State court judges. They are first rate. I will pick a State. I would rank the New York State court of appeals, their highest court, over the last 50 years, up against any Federal district court or Federal circuit court of appeals in the Nation. But I cannot say that for probably 20 States that I will not name, because it would be a violation of Senate rules, and because I would be maligning the justices of other States. But I will say, as Barry Goldwater once said, ``In your heart, you know I am right.'' In your heart, you know there are certain States you would just as soon not be tried in for a capital offense as other States. So what this does--although I acknowledge that State courts get it right the vast majority of the times, I will put this in the negative-- what damage is done by the proposal of time limits built into the proposal I am making and that are made, I might add, in the underlying bill, that say you have to file a petition within a certain amount of time and there is a limited circumstance under which you can file a second petition. So for those reasons, and others which I will not take the time to speak to, I am going to oppose the amendment of my distinguished friend from Arizona. Mr. President, Is any time left in opposition?

Mr. BIDEN. I would be happy to yield.

Mr. BIDEN. Let me say while our colleague from Oklahoma is in the Chamber that I, too, admire the way in which he and his senior colleague have conducted themselves in the wake of such a horrible tragedy. I do not in any way question that the victims' survivors, families of the victims in Oklahoma City, want what he states, and that is a change in the way habeas corpus works. They do not want any more Staffords. They cannot understand, nor can I, why Stafford is in jail for 17 years after having filed apparently successful petitions to delay his execution, and they want action. But I would say that we would be on habeas corpus whether or not that god-awful tragedy in Oklahoma had occurred. The Republican crime bill has the habeas corpus petition in it. We are scheduled to take up the Republican crime bill. We were scheduled to take up the Republican crime bill before we left for our Easter recess. Then we were scheduled to take it up before we left for Memorial Day. Now we are scheduled to take it up before the Fourth of July recess. In that Republican crime bill is the reform of habeas corpus. In the crime bill that I offered 2 years ago, 18 months ago, there was a reform of habeas corpus. So I just want to make it clear that the Senate's attention is not focused on habeas corpus at this moment because of what happened in Oklahoma and the counterterrorism bill. It is a convenient--and I mean that in a literal sense; I do not mean that in a disparaging way--it is a convenient vehicle to move up the debate on this issue, but the debate was necessary and inevitable. Let me point out there are three sort of teams in this debate. One team says keep habeas corpus the way it is; we do not want any changes in habeas corpus. I got a bite out of that apple over the last couple years because every time I would offer amendments on habeas corpus I would read in the editorial page of the New York Times about how Senator Biden is emasculating habeas corpus, and what a terrible thing he is doing, and the compromises Senator Biden is working out are--and it went on and on. Every liberal newspaper in America pointed out that wanting to change habeas corpus from the way it is to make sure that the Staffords of the world are executed----

Mr. BIDEN. Mr. President, this is pretty clear here. What the Senator from Michigan does in his amendment is stick with one part of the change in the law. Right now there is no requirement in the law to file the successive petition that says that the defendant has to explain why he did not file the petition before. Now, under the Hatch approach and under the approach if adopted by Senator Levin, that is tightened up. Even Senator Levin is saying we have to show cause why this was not raised before. There is only one disagreement before the Senate. That is, what standard of proof do you have to bring forward to show you are innocent? By implication, they are agreeing a person ought to be able, if there is evidence of innocence, ought to be able to have another petition. Senator Levin says the same thing. I think every American would say you ought to have another crack at it. The difference is, they say ``clear and convincing.'' Right now, the Supreme Court says, no, you do not have to go that far, but you have to go pretty far. You have to sufficiently establish the constitutional violation. You said what happened to you in the lower court, you say your constitutional rights were violated in a way that probably resulted in the conviction of a person who is actually innocent. Are we going to quibble over putting someone to death on whether or not we abide by the Supreme Court majority that says all you have to do is say ``probably'' this resulted in a conviction of an innocent person? But they want to go even further. They want to say, no, ``probably'' is not enough. You have to show that there is clear and convincing. The only thing they do not say is ``beyond a reasonable doubt.'' Keep in mind, folks, what everybody misses, when we talk about habeas corpus, is this is not about having a convicted person go free. That is not what this is about. Nobody under habeas corpus petition goes free. They get a new trial. That is all they are saying here. I sure think this is distinction with a difference that can mean the difference between life and death of an innocent person. I hope they will yield on ``probably'' and not ``clear and convincing.''

Mr. BIDEN. I ask unanimous consent that I be able to speak 2 minutes on the Senator's amendment.

Mr. BIDEN. Mr. President, parliamentary inquiry. Is there any time remaining?