John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I ask unanimous consent to withdraw the amendment, and that the gentleman from Missouri [Mr. Volkmer] be recognized immediately to offer the same amendment.

Mr. CONYERS. Mr. Chairman, I ask unanimous consent once more to withdraw the amendment, and that the gentleman from Missouri [Mr. Volkmer] be recognized immediately to offer the same amendment.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. May I point out to my friend, still my friend, that the gentleman from Missouri [Mr. Volkmer] is one of the cosponsors of the amendment with the gentleman from Michigan [Mr. Dingell]. We are not adding anything, and it may not come as news to my colleague that he had worked on this amendment, not only now, but for quite a while.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. This amendment has not been printed in the Record, Mr. Chairman.

Mr. CONYERS. I yield to the gentleman from Missouri.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, H.R. 729 is the latest in a series of legislative proposals dating back a decade that have attempted to speed up the execution of the more than 2,300 people on death row in this country. The common thread in these proposals is imposing a time limit on filing the habeas petition, typically set at 6 months to 1 year, and restricting the number of appeals a prisoner can make, that is, one bite at the apple. The McCollum bill follows this approach, with a few variations, one of which is worth supporting. That is the section providing for automatic stays of execution while a habeas petition is pending. This is a much needed improvement on the current system where the fate of a condemned man hangs in the balance while lawyers scramble at the last minute to find a judge who will issue a stay of execution. In all other respects, H.R. 729 combines the worst of the habeas bills, for instance, by setting a 6-month deadline for habeas petitions instead of 1 year, or it fails to make meaningful changes. Thoughtful reformers like my former colleague, Representative Kastenmeier, the American Bar Association, and the Judicial Conference, have suggested that the goals of streamlining the process and eliminating uncertainty could be achieved if the States agreed to adopt measures that would ensure fairness. That is a good tradeoff, in my view. The McCollum bill, however, imposes all the deadlines and restrictions without any of the fairness. In that sense, it is more of a political statement than a serious attempt to reform the process. The bill may achieve the goal of speedier executions but the cause of justice will not be served. It is an admission of failure to pursue one without the other. What is missing is any attempt to remedy the most pressing problem at the source: poorly represented defendants at trials where almost all the constitutional errors that are later reversed on appeal occur. The reason for incompetent representation is simple: Many States pay less than $1,500 for trials--not enough to defend a drunk driver, let alone a capital defendant. When you consider that retrials have been ordered by the Federal courts in 40 percent of the habeas cases since 1976, the McCollum bill's failure to require competent counsel at State trial proceedings is a fatal flaw that makes me unable to support this legislation. There is another omission in the bill that is even more glaring. It goes to the heart of due process and fundamental fairness: An innocent man should never be executed. The McCollum bill permits habeas claims only in the difficult-to- imagine situation where there is ``clear and convincing'' evidence of innocence and ``no reasonable juror'' would find the petitioner guilty. I will be supporting an amendment that will substitute ``preponderance of the evidence'' instead of the more restrictive standard. This amendment simply states that the Federal courts should always be available to hear claims of innocence when based on newly discovered evidence. Representative McCollum's standard is far better suited to dispose of the claim rather than a standard of whether to hear the claims in the first place.

Mr. CONYERS. Mr. Chairman, Sixty-three years ago, in Powell versus Alabama, the case involving the Scottsboro boys, the Supreme Court established as a constitutional principle that indigent defendants would not be sentenced to death unless they were represented by competent counsel. That promise remains unfulfilled to this day and it is one of the most glaring omissions in the McCollum bill. Having competent counsel is so important because failure at the front end, that is, the trial stage, leads to the delays and multiple petitions at the back end that resulted in retrials being ordered in 40 percent of all habeas petitions filed since 1976. Without competent counsel at trials any reform is meaningless. Leaving it to the States to appoint counsel is no solution because the current system is a disaster: in Kentucky, attorneys who represented a quarter of the State's 26 death row inmates have since been suspended, disbarred, or convicted of crimes. In Mississippi and Arkansas, compensation for death row attorneys was limited by statute to $1,000, though hundreds of hours of work are involved. were awarded to the lowest bidder. South Carolina pays $10 per hour for out-of-court work and $15 for in-court work. That is the system the McCollum bill would seek to preserve: uncompensated, ill-prepared and inexpert counsel for those whose lives are hanging in the balance. Surely, we can do better. Habeas cases are among the most complex in all litigation. In addition to the highest stakes possible--life or death--there is a very complex body of constitutional law and unusual procedures that do not apply in other criminal cases. There are often two separate trials with very different sets of issues. Jury selection standards are different. The penalty phase requires in-depth investigation into personal and family history. The McCollum bill is woefully inadequate in providing counsel and I urge my colleagues to support the amendment to require counsel at the trial as well as postconviction phase.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, there is a major omission in the bill that goes to the heart of due process and fundamental fairness: An innocent man should never be executed. The McCollum bill gives a criminal defendant ``one bite at the apple'' but would not permit any appeals after the 6-month deadline has passed except in the difficult-to-imagine situation where there is clear and convincing evidence of innocence and no reasonable juror would find the petitioner guilty. The amendment that we are considering will substitute preponderance of the evidence instead of the more restrictive standard in the McCollum bill. This amendment simply states that the Federal courts should always be available to hear claims of innocence when based on newly discovered evidence. Representative McCollum's standard is far better suited to judge and dispose the claim rather than a standard of whether to really hear the claims in the first place. If this is intentional, then it is a sly smokescreen to cut off all claims based on innocence. I would hope that is not the case and that the majority is willing to support this amendment. Claims of innocence in habeas proceedings are not part of a far- fetched scenario that can never happen in this day and age. The truth is this is all too common. In fact, the Supreme Court decided a case just this January 23, 1995, that shows how easily this can occur. The facts in Schlup versus Delo are that a prison inmate accused of murder argued that a videotape and interviews in the possession of prosecutors showed he could not have committed the murder but in the information was not revealed to him until 6 years after his conviction. The Court ruled that Mr. Schlup should be allowed to raise his claims of innocence. There is case after shocking case of similar horror stories: James Dean Walker had served 20 years in prison when one of his codefendants confessed that he had pulled the trigger that killed a Little Rock police officer. Walker's gun had not been fired but he had been convicted on the testimony of a witness who said she had seen him shoot the officer. The eighth circuit, which had denied his first habeas petition 16 years earlier, agreed in 1985 that he should be freed. Rubin ``Hurricane'' Carter was convicted of murder in 1967 and served in prison for 18 years even though the witnesses whose identification led to their convictions later recanted their identifications. The conviction was reversed after a Federal judge ordered prosecutors to turn over evidence, including failed polygraph tests, which showed the witnesses were lying. Carter was set free. Robert Henry McDowell was almost executed for a crime that the victim initially told police was committed by a white man. McDowell was black. The North Carolina supreme court reversed a trial court order granting him a new trial but the fourth circuit ordered him to be released after the police reports were made public. False identifications, witnesses recanting, death-bed confessions, these are all too familiar to those who defend death row inmates. Access to Federal courts is vital. This bill may achieve the goal of speedier executions but the cause of justice will not be served. It is an admission of failure to pursue one without the other. Support the amendment that prevents executing an innocent person.

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. What we have here in this full and fair concept is a throwback to an outmoded idea first advanced in the other body that would effectively end all rights of habeas corpus, if minimal State guarantees are satisfied. In other words, there would be no right of Federal review unless the State court decision is totally arbitrary. This makes the previous one-bite-of-the-apple position of the gentleman from Florida [Mr. McCollum] of which we argued about and against, look absolutely great. This is probably the throwback amendment to habeas corpus of all throwbacks. I mean, this would effectively end habeas corpus today at the Federal level. It almost says that: Let each State do their own thing on habeas corpus and forget Federal habeas review. That's a totally untenable position that I am surprised my friend, the gentleman from California, would even drag it out on the floor at this late hour. This would end even the very modest advances in the McCollum bill, which are very few, indeed.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, in continuing my opposition against the biggest throwback amendment of all, I must express my shock and disappointment at the gentleman from California for really attempting to end Federal habeas corpus, if even the most minimal State guarantees are satisfied. by the subcommittee, the full committee, it is now on the floor, and now from the Republican ranks we now have another amendment that even vitiates the provisions, the very modest provisions, in the McCollum bill, and so we would end up with not even one bite at the apple which I thought was awfully scarce, no right to counsel even in a postconviction proceeding. So the result with the 50 States would have 50 different standards for protecting Federal constitutional rights. I do not think that we would want this kind of provision put in the bill under any circumstances. The full and fair issue was deadlocked in the other body last year, and this amendment is another attempt to pass it again. I urge overwhelming rejection of this amendment. Mr. Chairman, I yield 4 minutes to the gentleman from North Carolina [Mr. Watt].

Mr. CONYERS. I thank the gentleman from North Carolina, my colleague. Mr. Chairman, may I remind my friends on the other side on the Committee on the Judiciary that this matter has never come up before that I can recall, before the Committee on the Judiciary. The gentleman from California [Mr. Cox] has never appeared before the committee.

Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentleman from North Carolina [Mr. Watt].

Mr. CONYERS. I would yield to my friend, the chairman of the Subcommittee on Crime.

Mr. CONYERS. Ladies and gentlemen, we are now taking out the one redeeming feature in McCollum habeas reform. I want to just point out that the section providing for automatic stays of execution while a habeas is pending was a much needed improvement on the current system where the fate of a condemned man hangs in the balance while lawyers scramble at the last minute to find a judge that will stay the execution. We had corrected that. Why on Earth he got talked into having that undone at the last minute of the final minutes of debate on the floor amazes me. It was the gentleman's amendment all the time. Mr. McCollum literally wrote this bill. He put in the stay. Now it is being taken out. Did we do something wrong? Have we disappointed you in some way? Please let us keep the automatic stay feature in. It will not make this habeas bill much better, but it will certainly be a lot better than going back to the system of lawyers scrambling around looking for judges before a person is executed, who may find out or who may never find out that his habeas was in fact granted.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I demand a recorded vote.

Mr. CONYERS. If the gentlewoman will continue to yield, first of all, the gentlewoman has revealed out of her own experience an absolutely shocking situation, as a Member of Congress and a distinguished person in her own State and the country, that this could happen to her. Mr. Chairman, what about a citizen anywhere? Do Members know what their remedy would be? They would have to go get a lawyer, file a civil suit. They obviously are going to have to pay for it. It would be a long, protracted piece of litigation, and there are very, very few people that would have the well of the House of Representatives to make clear the kind of horror stories that could occur. The average citizen is, in effect, without remedy if H.R. 666 would be applied, because this is what is happening without it. What this bill would do would be make it legal and permissible for an officer then to come before the court and say ``I used objectively reasonable good faith in trying to determine that we should break into the Schroeder house because we thought we might find something.''

Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, this may have been a bill that could have been a candidate for the Suspension Calendar, but I think it will move rapidly through the House under the procedure that now exists. I rise in support of the Mandatory Victim Restitution Act of 1995. It is a good measure which has the broad support of Members on both sides of the aisle. In essence, the bill changes the current law which gives Federal judges the discretion to order restitution. Now under H.R. 665, judges would be compelled to order convicted offenders to pay restitution to their victims. It is clear to me that this provision draws upon the 1994 crime bill enacted into law which created a similar provision to enable women who had been victims of violence to recover damages from their attackers, another good measure that we all supported. An innovative aspect of this legislation is the provision that restitution may also be ordered for any other person, that is, one who is not a victim, who has yet suffered physical, emotional, or monetary injury from the criminal act or conspiracy or pattern of unlawful activity. For instance, in drug dealing and racketeering cases there are thousands of victims who now have a chance of meaningful economic recovery for the damages inflicted upon their communities. In neighborhoods where crack houses now spread destruction among young people and where businesses are afraid to operate, it is not enough to arrest of few low-level drug dealers who can easily be replaced. Now, after a conviction, when the trial moves to the damages stage, all the victims will now be empowered to rise in unity against the hugely profitable drug dealers to seek restitution for their injuries. But let us be candid: This provision should be a useful tool in white collar prosecutions as well. It is needed to combat environmental pollution by requiring corporate defendants who have been convicted of toxic discharges to pay homeowners whose property has been damaged or who have suffered emotional injury. It is needed to pay restitution to victims of price fixing or securities violations or for those who are victims of criminally negligent actions of manufacturers. Of course, in many cases involving poor defendants, the chances of a victim recovering any restitution at all are about as good as getting blood from a turnip. In fact, only 18 percent of the current Federal defendants are under a restitution order, suggesting that this may be an impracticable idea in many ways. However, given the broad possibilities of helping reduce fear in neighborhoods and holding corporate criminals accountable for their actions, I urge my colleagues to support this bill.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. Mr. Chairman, I yield 5 minutes to the gentlewoman from Texas [Ms. Jackson-Lee]. (Ms. Jackson-Lee asked and was given permission to revise and extend her remarks.)

Mr. CONYERS. Mr. Chairman, I commend the gentleman, and thank him for that further detailed explanation.

Mr. CONYERS. Mr. Chairman, I have no further requests for time, and I yield back the balance of my time.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?