Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, I ask unanimous consent further reading be dispensed with. [[Page S7810]]

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

Mr. BIDEN. I am happy to do that. We have apparently not reached a time agreement. I am prepared to enter now into a time agreement on this amendment of 30 minutes equally divided.

Mr. BIDEN. Mr. President, my intention would be to offer the second amendment on counsel standards required in Federal habeas corpus cases. I think the number is 1226. Then I will have one more. The most important, from my perspective, of the amendments I have is the one relating to the deference standard that is in the Republican bill. Senator Graham of Florida has indicated to me that he will not offer his amendment. Senator Levin, I believe, will be ready to offer his amendment shortly. I would respectfully request that the Presiding Officer, Mr. Kyl, offer his amendment sometime between that. It is my intention to offer my amendment last. I will offer the first three, but the last amendment on habeas I would like very much to be my amendment on deference. We will by that time have eliminated all Democratic amendments. I understand there is one--unless Mr. Kyl is withdrawing his--there is one amendment on the other side.

Mr. BIDEN. Mr. President, I understand one of our colleagues thought this was an up-or-down vote as opposed to a tabling motion and would like to ask unanimous consent to change the vote which will not affect the outcome. Change of Vote

Mr. BIDEN. Mr. President, I would take issue with the last statement of my friend. I will not debate it now. We will have plenty of time to do that. I yield back my time.

Mr. BIDEN. I will be very brief in reply. With regard to the point that if someone is not a Federal employee outside the building is killed, fortunately, we passed the Biden crime bill last year, and under title 18, section 2332(A) ``Use of Weapons of Mass Destruction''--I would refer my colleague to that--anyone killed at all, whether sitting across the street drinking a cup of coffee, whether they are riding by in their automobile, whether they are a Federal employee or whether they are an alien, it does not matter; they are subject to the Federal death penalty. So the Senator is missing the point. Second, we do want universal reform of habeas corpus. Let us do it on a bill that we are supposed to do it on. Let us do it on the crime bill. And, No. 3, as to the idea that we are somehow going to have two different standards apply, the real issue is under what circumstances does a Federal court have a right to review a State court's judgment. It has nothing to do with terrorism under this provision. It has nothing to do with Oklahoma City. We should deal with it. We should discuss it. We should debate it, not on this bill. I am prepared, whenever the Senator wants, to move to the tabling of my amendment.

Mr. BIDEN. Mr. President, this is the first of a series of several amendments relating to habeas corpus. Habeas corpus is probably the most time honored phrase in our English jurisprudential criminal justice system, referred to as the Great Writ. But it is not very well understood by a vast majority of people including many lawyers. I say at the outset here that one of the things we are going to hear today--we are going to hear a great deal about how the system is abused. We are going to be told that time and again. We will see charts. We have been seeing these charts for years that show that a man or woman, in almost every case it has been a man, who has been sentenced to death, because of a series of frivolous appeals and successive habeas corpus petitions has remained in a prison cell and alive for--some of the examples of 10, 12, 14, 18 years after having committed the crime and having been convicted by a jury of their peers and having exhausted their appeals--after having committed a heinous crime. And we are left with the impression that the choice here is a stark choice between a continuation of a system where everybody convicted of a heinous crime and sentenced to death languishes in a prison for a decade or more, costing the system money and avoiding their ultimate fate that the choice is between that system and a system that essentially eliminates the right of a Federal court to review the actions taken by a State court to determine whether or not someone had been granted a fair trial. That is what habeas corpus is all about. Habeas corpus is all about saying when so and so is convicted, they were deprived of certain rights and opportunities and that they were not given a fair shake in the system. Habeas corpus came about and really came in the forefront of the American political and legal system around 1917 when the State of Georgia put to death someone who by everyone's account should not have been put to death, and there was no ability of the Federal court to review the actions taken by the Georgia State court. The reason I give this background--and in light of the fact that I got here a few minutes late and there are Senators who have commitments early in the morning on this, I am going to shorten this particular amendment. But what we are told is that--and you will hear time and again this morning--the system is terrible, everyone abuses the system, and essentially State courts do a good job. Why have the Federal courts in this thing at all? I realize I am putting colloquial terms to this, but that is the essence of it. The amendments that I am going to offer today and others will offer today are not designed to maintain the system as it is. We will show in future amendments that, if we amend the habeas corpus law the way we would like to as opposed to the way it is in the Republican bill, you still would have a situation where someone would have to have their fate executed and carried out after a trial by their peers and a finding of guilt within a very short amount of time. You would not have these 12-, 14-, 16-, or 18-year delays in implementing a court's decision. As my former associate--I was his associate--a very fine trial lawyer in Wilmington, DE, always would say to the jury, ``I hope we keep our eye on the ball here.'' I want us to try to focus, if we can, this morning. My colleagues on the Republican side of the aisle have repeatedly said in this bill that we must do something to ensure swift punishment of those who committed the Oklahoma City bombing. That is supposedly why, you might wonder, in a terrorism bill there is habeas corpus. Well, the constant argument put forward is, look, we have to do this because once we find the person who did this awful thing in Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add, a bill that the Presiding Officer and I voted for, the Biden crime bill, is the only reason there is a death penalty. Had we not voted for that bill, had that not passed last year, this finding of a person who committed the bombing, that person under Federal law would not be eligible to be put to death. There is no question that because of the action you and I and others took last year there is a death penalty now. So unlike the World Trade Tower, no death penalty would be there under Federal law had we not passed the Biden crime bill then. Now there is. But they say now, once we find this person, we are going to go put them to death, what we have to do--this will be a Federal prison because under Federal law they will be prosecuted, not under the Oklahoma law but Federal law. They are eligible for the death penalty, and they will be convicted--I assume, and it is our fervent hope they will be convicted--and now they get sentenced to death. And the President and the Attorney General say they want the death penalty for whomever is convicted. My friends say, well, what we have to do now is have habeas corpus changed so no one will languish in prison. I do not think there is anybody in the Federal system right now--and I am looking to my staff for confirmation--who sits on death row filing habeas corpus petitions. There is one habeas corpus petition that has been filed in the Federal system. So what I want to say to my friends--and I will put the rest of this in the Record--is this has nothing to do with terrorism. Not one of the horror stories Senator Hatch has given or has given us on the Senate floor relates to a terrorist who was prosecuted in the Federal court. They all relate to someone who is prosecuted in State court and has spent too long sitting on death row. There are useful and practical steps we can take to prevent future terrorist activities. We can reform habeas corpus petitions for State court prisoners. But in reforming habeas corpus petitions for State court prisoners, not one of them will affect terrorism because--I want to make it real clear--if we have a terrorist convicted under Federal law in a Federal court, then Federal habeas applies. So my amendment is very simple. It says if you want to deal with terrorism, that is the purpose of putting habeas corpus in this bill and then limit it to Federal cases; limit it to Federal prisoners. That is the stated purpose. Do not go back and change the whole State court system. Do not go back and change the whole State habeas system on this bill. Debate it on a bill which should be the crime bill that is coming up in the next couple of weeks we are told. There was a lot of discussion yesterday about nongermane amendments. This amendment strikes the 95 percent of the habeas bill that is not germane and keeps the 5 percent that is germane. Ninety-five percent of what my friends have in this bill relates to State prisoners, State courts, and has nothing to do with terrorism, nothing to do with Oklahoma City, but 5 percent arguably does. My amendment says let us pass the 5 percent that has to do with Federal prisoners held in Federal prisons convicted in Federal courts and change the habeas the way they want for those prisoners. That will deal with Oklahoma City the way they say they want it and it will not mess up the 95 percent of the cases that deal with the State prisoners in State prisons in State courts and deny essentially Federal review of those State decisions. So I will reserve the remainder of my time by saying that it is simple. My amendment simply says, all right, if this is about Oklahoma City, let us have it about Oklahoma City. The provisions in the bill relate to Federal prisoners and Federal habeas corpus. Parliamentary inquiry: How much time remains?

Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask for its immediate consideration.

Mr. BIDEN. Mr. President, I apologize to my colleague for being late. Amendment No. 1217 (Purpose: To amend the bill with respect to deleting habeas corpus for State prisoners)

Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BIDEN

Mr. BIDEN. You do want us to come back, do you not?

Mr. BIDEN

Mr. BIDEN. That is my understanding.

Mr. BIDEN. Mr. President, if the leader will yield, each of the authors of the gun amendments has agreed to withdraw their amendments, and I am authorized to do that and I would do that at this moment if that is appropriate. There are five amendments: Bradley, Lautenberg, Kohl, Levin, and Kerry of Massachusetts. Each had amendments. And there was a Boxer amendment which we never intended on bringing up on guns, and a second Lautenberg amendment. We were not going to do those anyway. To put it another way, Mr. President, we commit there will be no gun amendments offered from the Democratic side. The only amendments that would be in order are the habeas corpus amendments that have been referenced by the leader already.

Mr. BIDEN

Mr. BIDEN. I suggest the absence of a quorum.

Mr. BIDEN. The second one is Lieberman, and the vote on the Specter amendment will start at 9:45? I ask unanimous consent that the vote on the Specter amendment begin at 9:45.

Mr. BIDEN. And the first amendment will be?

Mr. BIDEN. Parliamentary inquiry, Mr. President. Have the yeas and nays been ordered on both amendments?

Mr. BIDEN. Mr. President, that is my understanding. I have been informed by staff of the Democratic leadership it would be helpful if we did not start the vote for about 5 minutes, so we give people enough notice that we are about to start the vote.

Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. BIDEN. I would so urge, Mr. President. If I could have the attention of the Senator from Georgia, if he would send the amendment to the desk, I guess we can agree on it.

Mr. BIDEN. Mr. President, let me say I know he has decided not to run again, and this will probably hurt his reputation, but it is a pleasure to work with the Senator from Colorado. He is always reasonable. I thank him very much. As Senator Eastland once said to me, ``I will come and campaign for you or against you, whichever will help the most.'' Maybe if I said something negative it would help more but I really mean it. I thank him for his cooperation. This is the second time he has moved this legislation along. I truly appreciate it. I want to correct something I said earlier. I referred to the posse comitatus amendment as the Nunn-Biden amendment. That is not accurate. This is not a minor point. It is the Nunn-Thurmond-Biden amendment. Senator Thurmond has been a leader in this issue and I did not mean in any way to leave him out. It is the Nunn-Thurmond-Biden amendment. I yield the floor.

Mr. BIDEN. And waiting on a decision by our Republican colleagues whether or not they can accept the Nunn-Biden posse comitatus amendment.

Mr. BIDEN. The Senator points out the Abraham amendment is still on the Republican side, and I have discussed this with Senator Abraham and he points out to me that if Specter-Simon passes, then his amendment is redundant, is no longer necessary. It is only if Specter-Simon fails would we go to the Abraham amendment, in which case we could accept the Abraham amendment.