Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, the committee bill provides for an automatic stay of execution throughout all stages of federal review for the first federal habeas petition for states that provide counsel on state collateral review. Some States had raised concerns that this provision may have the unintended effect of prolonging litigation by allowing a stay of execution even where the federal habeas petition presents no substantial claim for the federal court to consider. I would like to read an excerpt from a letter from the attorney general of Texas, a Democrat, Dan Morales. This letter reads in part, Providing for an automatic stay regardless of the merit of the issues raised is inconsistent with the purpose of federal habeas review, and as a practical matter, will lead to unwarranted delay in the imposition of valid sentences. The goal of affording death sentence inmates ``one bite of the apple'' should at the very least be accomplished without staying an execution while a petitioner pursues frivolous appeals. Mr. Chairman, the amendment before us provides that the automatic stay will terminate once State court review is completed if that petitioner fails to make a substantial showing of the denial of a Federal right or a denied relief on his petition in the Federal district court or at a later stage of Federal habeas review. Under current law, Federal courts routinely must evaluate whether an issue exists to warrant review in granting of a stay, so the rights of the inmate are still protected. This amendment improves the legislation, Mr. Chairman, and I urge its adoption. Office of the Attorney General Austin, TX, February 7, 1995. Hon. Lamar S. Smith, House of Representatives, Washington, DC. Dear Representative Smith: The recently introduced House of Representatives Bill 729 raises significant concerns for the State of Texas in the post-conviction litigation of capital cases. Specifically, I am concerned with the provision of proposed Sec. 2257 for an automatic stay of execution while a death-sentenced inmate litigates a complete round of federal habeas review, from district court through the circuit courts of appeals and the Supreme Court and the provision of proposed Sec. 2258 eliminating the certificate of probable cause requirement for appeals. Providing for an automatic stay, regardless of the merit of the issues raised, is inconsistent with the purpose of federal habeas review and, as a practical matter, will lead to unwarranted delay in the imposition of valid death sentences. The goal of affording death-sentenced inmates ``one bite of the apple'' should at the very least be accomplished without staying an execution while a petitioner pursues frivolous appeals. I urge you to support a floor amendment eliminating these two provisions. As I'm sure you are aware, death-sentenced petitioners pursuing federal habeas review have, virtually without exception, pursued a direct appeal to the state's highest court of the review, and, in most instances, sought certiorari review of the state court's disposition of the direct appeal. Further, most if not all such petitioners have litigated at least one complete round of state habeas review. Under these circumstances, if a petitioner cannot satisfy the standard of Barefoot v. Estelle, 463 U.S. 880 (1983), which requires a substantial showing of the denial of a federal right, then a stay is unwarranted. As demonstrated by existing practice, United States district courts, circuit courts of appeals and the Supreme Court are fully able to evaluate whether there exists an issue which warrants review and a stay. Notably, the certificate of probable cause requirement was originally enacted to eliminate or reduce the number of unwarranted stays of execution entered while death-sentenced inmates pursued frivolous appeals. Barefoot v. Estelle, 463 U.S. at 892 n.3 (and citations therein). Thus, the proposed automatic stay, which would extend through the appeal and disposition of a petition for certiorari review, represents a step backward rather than forward in the goal of expediting post-conviction review. Indeed, the automatic stay is an unwarranted step in the opposite direction from the ``full and fair'' provisions that have garnered so much support in the past. Rather than deferring to a state court's reasonable disposition of constitutional issues, the automatic stay provisions disregard the significant amount of review that precedes federal habeas review. The ``full and fair'' concept aside, the current practice of allowing each federal court from the district court through the Supreme Court to determine whether a stay is warranted is preferable. The effect of the automatic stay is not ameliorated by the time limits imposed on adjudication at each stage or by the designation of a finite period of time to go from state review into federal habeas review. The time limits imposed do very little, if anything, to streamline the process of the United States District Courts in Texas, the Fifth Circuit Court of Appeals, or the Supreme Court. For example, a death- sentenced inmate has normally delineated his grounds for relief in state court and exhausted state remedies with respect to those grounds. It simply does not require 180 days to transform a state petition into a federal petition founded on the same legal bases and, in practice, federal district courts in Texas normally require a petition to be filed if the petitioner has been allowed, on the average, 60 or more days following state habeas review. Similarly, the time limits imposed for adjudication at each stage do not impose real limitations. For example, allowing the district court 60 days after argument to rule does not limit the time a petition may languish on the court's docket before argument. Finally, by staying an execution until the Supreme Court denies a petition for certiorari review, the legislation almost assures additional litigation by death-sentenced inmates. Capital litigation will expand to fill anytime allowed. If an execution date cannot be set until after the Supreme Court's disposition of a certiorari petition, the time between the vacating of the stay and the scheduled execution date will afford a petitioner the opportunity to formulate a second round of review, which will have to be resolved regardless of the limitations imposed on successive petitions. By contrast, if a state is able to schedule an execution date to coincide approximately with the filing of a certiorari petition, the initial round of review is likely to be the only round. In short, I urge you to support an amendment to the expedited procedures providing for the retention of the certificate of probable cause requirement for the first tour of federal habeas review and eliminating the automatic stay. The provisions of the ``expedited'' federal habeas procedures would lengthen the time between conviction and imposition of sentence beyond the current 8.5 year average for Texas. Indeed, although it is expected that the Texas legislature will, in the immediate future, enact habeas reform that fully complies with the requirements of proposed Sec. Sec. 2256- 2262, federal habeas review would be expedited by Texas choosing not to ``opt in'' to those provisions. In addition, I urge you to support the amendment sponsored by Representative Cox which would require federal habeas courts to defer to state court decisions as long as the state courts acted reasonably in their adjudication of the case and application of federal law. As I noted earlier, the State of Texas expends considerable judicial and law enforcement resources assuring that capital convictions comply with the constitutions of the United States and Texas. Relitigation of issues fully and fairly resolved by the state courts is unnecessary and inappropriate unless those issues have not been reasonably resolved by the state courts in accord with federal constitutional principles. Very best wishes, Sincerely, Dan Morales, Attorney General. Mr. Chairman, I reserve the balance of my time.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, I thank the chairman of the Committee on the Judiciary for yielding. Mr. Chairman, on November 8, the American people put their bloated Federal Government on a diet. The balanced budget amendment with taxpayer protection is step 1 in Washington's weight loss program. Federal fat has been growing for the past 25 years. Since 1969, when Congress last balanced the budget, the debt has grown to $4.6 trillion. How Congress chooses to shed Federal fat is critically important. The balanced budget amendment with taxpayer protection causes the Government to change its eating habits by cutting spending first. Like so many would-be dieters, the leaders of the minority have all kinds of excuses as to why the Government can't be made lean. These excuses can be termed budgetspeak. Budgetspeakers contend that massive cuts would be needed to balance the budget. They argue that every Government program is indispensable and irreducible. Outside the corpulent Capitol, the American people know better. In reality, Congress can balance the budget by reducing the increase in spending. According to the Clinton administration's own numbers, if spending increases by 3 percent rather than by 5 percent, as currently projected, the budget will be balanced in 7 years. Budgetspeak also contends that by taxing Americans more, the Government somehow will spend less. Yet both President Clinton and President Bush painfully learned that tax increases cannot solve our fiscal woes. Just last week, the President's Budget Director Alice Rivlin admitted that the administration had no plan to balance the budget. Budgetspeakers deride this amendment as a gimmick. They assert that Congress should instead make serious choices to reduce the deficit. Yet look at the voting record of these budgetspeakers. The National Taxpayers Union, a nonpartisan watchdog organization, tallied the votes of the 103d Congress and graded every Member of Congress on how carefully they spent the American people's hard-earned money. Every member of the Democratic leadership received an ``F.'' Mr. Chairman, the American people understand budgetspeak is code for why the Government can't diet today. Mr. Chairman, as chairman of the contract with America's working group that produced this amendment, I urge its passage.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman for yielding time to me. Mr. Speaker, today we vote on the first step necessary to end the Alice in Budgetland spending practices that have wasted the American people's tax dollars and threaten our children's future. Congressman Sanford's leadership in introducing the Truth in Budgeting Baseline Reform will require Congress to live according to the same spending rules that govern the American people. Before today, the budget process assumed that spending would increase from year to year, regardless of new laws. Under the old rules, the starting point, or baseline, for how much Congress spent on a program in 1996 would be how much was spent in 1995 plus inflation. It's no wonder that we ran up $4.5 trillion in debt. Under this budget-speak, government officials claimed to propose spending cuts when they really increased spending. Because the baseline included inflation, spending cuts actually meant less of an increase in spending, but no real cuts. The American people have decoded Congress' budget-speak and demanded change. The 104th Congress today has an opportunity to make history. I encourage my colleagues to pass the Truth-in-Budgeting Baseline Reform to force Congress to spend hardworking taxpayer's money under the same rules that guide the American people. Mr. Speaker, I yield back the balance of my time.