Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the Senator from Minnesota. I thought Senator Byrd was going to speak and therefore, I limited my comments. I would make one additional observation.

Mr. SPECTER. Mr. President, I commend the Senator from Connecticut, Mr. Lieberman, and the Senator from Oregon, Mr. Smith, for bringing forward this amendment because it is important that there be a unified fight against terrorism. The suicide bombers who have threatened Israel are identical to the suicide bombers who struck the United States on September 11, 2001. The only difference is that the suicide bombers on September 11th were a little more sophisticated. They hijacked planes and they flew them into the World Trade Center Towers. One, I think, was headed for the Capitol of the United States, the one which went down in Somerset County, Pennsylvania. One was headed for the White House, the one which struck the Pentagon. The situation today in Israel is one of abject terror, and I can testify to that personally because I was in Israel in late March. In fact, I was there on March 26, 2002, and visited Chairman Arafat in his compound on the evening of March 26, leaving there close to midnight. The next day there was the suicide bombing at the Passover seder in Netanya. Being in Israel is a terrifying experience, simply stated. There are suicide bombings in buses, suicide bombings in restaurants, suicide bombings at checkpoints, and suicide bombings on the streets. There is an undeniable right of self-defense under those circumstances. That is the essence of what the Lieberman-Smith amendment calls for. People talk about the cycle of violence. I do not think it is a cycle because that suggests there is some sort of mutuality. The suicide bombers provide the violence. The Israeli response is a matter of self- defense. We face an imminent threat in the United States. We get alerts from time to time. I think President Bush's statement, which is cited in this amendment, is worth repeating. He said, on November 21, 2001: We fight the terrorists and we fight all of those who give them aid. America has a message for the nations of the world. If you harbor terrorists, you are terrorists. If you train or arm a terrorist, you are a terrorist. If you feed a terrorist or fund a terrorist, you are a terrorist and you will be held accountable by the United States and our friends. What the Senate is saying in this amendment is that we are going to hold the terrorists accountable and we are going to stand with Israel in its fight against terrorism. I know Senator Byrd wishes to make a presentation in advance of his hearing and Senator Wellstone has asked for recognition, so I am going to limit my comments to these 4 minutes and yield the floor.

Mr. SPECTER. I am happy to yield for a question.

Mr. SPECTER. I called for regular order for those who might be watching because it is the practice of the Senate to arrive and wait a turn. I conferred with the principal sponsor, Senator Lieberman, and was queued up behind Senator Durbin. It is not an uncommon practice for Senators, under the guise of a question, to make speeches. While the Senate permits a question to interrupt a speaker, or when I have sought recognition, the rules of the Senate do not permit speeches. I think we had a speech and that is why I twice asked for regular order in accordance with the decorum of the Senate to take a turn.

Mr. SPECTER. Regular order, Mr. President.

Mr. SPECTER. Regular order, Mr. President.

Mr. SPECTER. I yield the floor

Mr. SPECTER. Madam President, I ask unanimous consent that I may proceed for 7 minutes as if in morning business.

Mr. SPECTER. I do, Mr. President.

Mr. SPECTER

Mr. SPECTER. The legislation further addresses the issue of adequacy of counsel. I will now describe the specific provisions of the bill I am offering today, and the cases and history that shows the manifest need for such legislation. The bill contains three titles. The first Title will ensure that defendants facing the death penalty will not be executed while the Supreme Court considers their petitions for certiorari or their cases on the merits. The second Title will ensure that both federal and state defendants have a meaningful opportunity to present DNA evidence in their defense. Finally, the third Title will establish minimal standards for defense counsel representing defendants in death penalty cases in state court. I am additionally introducing these three Titles as three separate bills, as I will explain later. The first is ``Title I: Right to Review of the Death Penalty While a Case is Pending Before the Supreme Court.'' There have been death penalty cases where, despite the fact that the Supreme Court was either considering to grant certiorari or had actually granted certiorari and the case was pending, the Court did not issue a stay of execution in the interim. In the 1990 case of ``(Alexzene) Hamilton v. Texas,'' 497 U.S. 1016, the Supreme Court failed to issue a stay of execution while considering a cert. petition, and the defendant was executed before the Court ruled on the petition. James Smith was convicted in 1984 of committing murder while perpetrating a robbery in 1983. He was sentenced to death. Smith appealed his conviction to the Texas Court of Criminal Appeals, citing seven points of errors, ranging from insufficiency of evidence to sustain a death sentence to challenges to the jury selection process in the trial. ``Smith v. State,'' 744 S.W.2d 86, Tex. Crim. App. 1987. In 1987, that court affirmed his conviction and sentence. In April, 1988, Smith waived any further appellate review of his case. His mother, Alexzene Hamilton, then entered the case, and filed a state habeas corpus petition in the Court of Criminal Appeals, claiming that her son was incompetent. The state responded to the mother's petition, and the Texas court denied relief. Ms. Hamilton then brought a petition for certiorari in the Supreme Court. The Supreme Court granted a stay of execution pending disposition of the cert. petition. ``Hamilton v. Texas,'' 485 U.S. 1042, 1988. The Court entered an order stating that the ``stay of execution of sentence of death . . . is granted pending the disposition by [the] Court of petition for writ of certiorari. Should the petition for a writ of certiorari be denied, this stay terminates automatically. In the event the petition . . . is granted, this stay shall continue pending the issuance of the mandate of [the] Court.'' Id. On April 3, 1990, the cert. petition was denied. ``Hamilton v. Texas,'' 496 U.S. 913, 1990. In May, 1990, the state trial court conducted a hearing and found that Smith still wanted to waive his appellate rights and that he was still competent. The trial court scheduled his execution for June 26, 1990. Ms. Hamilton again brought a writ of habeas corpus in the state courts on June 20, 1990, challenging the court's finding that Smith was competent. On June 22, 1990, the state courts denied this petition. Ms. Hamilton then filed a habeas petition in federal district court on June 23, 1990, which the court denied on June 24th. However, Dr. Brown, one of the several doctors that had previously opined that Smith was competent, stated that he now had some doubts of Smith's competency due to his review of some medical records he had not previously seen. The federal district court found that this new opinion did not affect its findings, and denied Ms. Hamilton's request for reconsideration. On June 25th, the state trial court had Dr. Brown re- examine Smith, and Dr. Brown then returned to his original opinion that Smith was competent. On the same day, the trial court then denied Ms. Hamilton's habeas corpus petition. The Texas Court of Criminal Appeals also dismissed Ms. Hamilton's motion for reconsideration on the same day. Additionally, on the same day, the United States Court of Appeals for the Fifth Circuit affirmed the federal district court's dismissal of the habeas petition and denied her motion for a stay of execution. ``Hamilton v. Collins,'' 905 F.2d 825, 5th Cir. 1990. Ms. Hamilton then filed petitions for certiorari, asking the Supreme Court to review both the state and federal court decisions and for a stay of execution. On June 26, 1990, the originally scheduled execution date, four Supreme Court Justices voted to grant certiorari, but for some unknown procedural reason, the Court did not formally act on the petition. The Court also did not vote to grant a stay of execution. Smith was subsequently executed before the Supreme Court decided on his cert. petition. The Supreme Court then denied Smith's petitions of certiorari. ``Hamilton v. Collins,'' 498 U.S. 895, 1990; ``Hamilton v. Texas,'' 498 U.S. 908, 1990. In denying the petition from the state court decision, the Court noted that it was dismissing the petition as ``moot.'' 498 U.S. 908, Stevens, J., concurring in the dismissal of the petition. In the 1992 case of ``Herrera v. Collins,'' 502 U.S. 1085, the Court actually granted certiorari but failed to issue the stay. Herrera had been convicted of the 1981 murder of two police officers. Herrera then pursued two lines of appeals through the Texas state system--direct appeal and then collateral proceedings. Herrera then pursued two sequential federal habeas corpus proceedings. During these proceedings, certiorari had been denied three times, but on the second federal habeas proceeding, certiorari was granted. Herrera's claim was that he was actually innocent in this proceeding. After granting certiorari, the Supreme Court failed to grant a stay of execution. However, in that case, the Texas Court of Criminal Appeals granted a stay while the case was pending before the Supreme Court. Herrera's claim was ultimately denied by the Supreme Court and he was executed. The reason for this sequence is a procedural twist. By Supreme Court practice, it takes only four votes to grant certiorari. Although certiorari is recognized by statute as the procedure for getting a case before the Court, the statute does not state how many votes are needed. The four vote standard is the practice of the Court. However, to grant a stay, there must be a majority--five votes--and the standard the Court applies is different from that for granting certiorari. There may be good reasons why the standard is different, and in almost all other cases, the failure to grant a stay when certiorari has been granted or while the Court is still considering whether to grant certiorari does not have the dispositive effect that it does in a capital punishment case. However, in a capital case, the failure to grant a stay while the Court considers whether to even hear the case sends the signal that the Court is, in effect, affirming the decision of a lower court before it even decides that the lower court's decision is worthy of affirmation. In a case where the Court has actually granted certiorari and failed to issue a stay the Court, in effect, tells the world that a case is important enough to be heard, but not important enough to postpone an execution. Until relatively recently, the Supreme Court had an ``informal'' practice where a fifth Justice would vote to grant a stay when four justices had voted to grant certiorari. The late Justice Brennan articulated the rationale for this rule: A minority of the Justices has the power to grant a petition for certiorari over the objection of five Justices. The reason for this ``antimajoritarianism'' is evident: in the context of a preliminary 5-4 vote to deny, 5 give the 4 an opportunity to change at least one mind. Accordingly, when four vote to grant certiorari in a capital case, but there is not a fifth vote to stay the scheduled execution, one of the five Justices who does not believe the case worthy of granting certiorari will nonetheless vote to stay; this is so that the ``Rule of Four'' will not be rendered meaningless by an execution that occurs before the Court considers the case on the merits. ``Straight v. Wainwright,'' 476 U.S. 1132, 1134-35, 1986, Brennan, J., dissenting. Justice Brennan's argument requires no further elaboration. Justice Brennan's opinion involved a ``hold'' case, where he was arguing that a stay should have been granted. The ``hold'' is an informal practice whereby at least three Justices of the Supreme Court can ``hold'' the Court from acting on a petition for certiorari so that the Court does not deny the petition. A ``hold'' is placed on a case when the Court has another case pending before the Court, the disposition of which may have an affect on the first case. In addition to Justice Brennan's argument, there are other reasons why a stay should be granted. In my experience as District Attorney in Philadelphia, and conducting oversight of the Justice Department while serving in the Senate, one theme is constant concerning our system of criminal justice: It rests on a bedrock that all Americans see the system as being fair to all. When the average American questions the fundamental fairness of any aspect of the criminal justice system, then it is in trouble. To the average American, when the Supreme Court has not yet decided whether it should consider a case or, has in fact, decided to consider a case by granting certiorari, but then fails to act to ensure that it can in actuality hear the case, that raises fundamental questions about fairness, regardless of the procedural nuances that legally allow for such a result. If we are to maintain confidence in our criminal justice system, then it has to be seen as fair to all. When the Supreme Court takes action like this, in my judgment, it denies the defendant his constitutional right of ``due process'' of law which, in these circumstances, is colloquially referred to as ``procedural due process.'' When the government takes action against an individual, the essential core of procedural due process is notice and an opportunity to be heard. In the instant case, we are not concerned with the notice aspect because the defendant knows why he was convicted. But when the Supreme Court has a case pending before it-that is a motion to stay execution or a petition for certiorari has been filed or the Court has issued a writ of certiorari-and then fails to grant a stay so that it can actually consider the petition or hear the case, it denies the defendant due process of law because the defendant is deprived of his right to be heard. A motion for a stay of execution should be treated as a petition for certiorari in these circumstances because, in effect, the motion is a preliminary petition for certiorari. As I noted earlier, the writ of certiorari is codified in Title 28 of the U.S. Code. No defendant has a constitutional right to have his or her case heard by the Supreme Court. But once the defendant files a petition, then the defendant has a statutory right to have, at the very least, his petition considered by the court and, if the petition is granted, then the right to have his case considered by the Court. This is the method that Congress has created for the consideration of these cases, which does not allow a right of direct appeal. As Congress has created this two step procedural mechanism, Congress has the authority to ensure that it is effective. The Court does not have to grant a petition, but it must, at the very least, not allow a petition to become moot before it even makes this very basic decision. The same logic applies if the Court grants the petition. The Court cannot consider the petition or the case if the defendant is executed before the Court acts. When a defendant is executed in these circumstances, he is being denied his right to be heard on his petition or his case and is therefore denied his basic right to ``procedural due process.'' The legislation I propose addresses this issue both at the federal and state level. With respect to federal cases, my proposed bill would prohibit the Bureau of Prisons or the military from executing a death row inmate when a defendant has filed a petition for certiorari and when the Supreme Court has granted certiorari. Congress created the federal death penalty, and Congress can establish the conditions when it can or cannot be carried out. With respect to state cases, my bill would address this issue in two different ways. First, just as with federal cases, my bill would prohibit the executive officer of a state from executing a defendant when a cert. petition is pending or has been granted. Congress's authority to legislate in this arena is derived from Section V of the 14th Amendment which reads that ``[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'' Section 1 of that Amendment reads in pertinent part that no ``State [shall] deprive any person of life . . . without due process of law. . . .'' As noted above, when a person is executed before the Supreme Court has granted or denied certiorari or acted on a case once cert. is granted, that person is deprived of his or her life without due process of law. My bill would also require the Court to treat a motion for a stay of execution as a petition for certiorari. Furthermore, this bill would also require all federal judges, to include Supreme Court justices, to issue a stay whenever a habeas corpus case is pending before the judge or judges and the habeas petitioner defendant has been sentenced to death. A case is considered to be pending if a defendant has filed a notice of appeal, filed a motion for a stay of execution, filed a petition for certiorari, or when certiorari has been granted. Most death penalty cases, both federal and state cases, have their final hearings through federal habeas corpus review. Congress has broad authority in the area of habeas corpus legislation. Indeed, Congress enacted a similar provision as part of the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S. Code Section 2262 requires a federal court to issue a stay of execution in those circumstances where a defense counsel has been appointed to an indigent defendant and a state is seeking to fall within the streamlined habeas corpus procedures contained in the Act. Additionally, my bill would require a lower court to issue a stay if a higher court did not in these circumstances. Finally, my bill would require that if four Justices vote to grant certiorari in a death penalty case, then certiorari will be granted. When a person petitions the Supreme Court to hear his or her case, that person expects to have the case heard if four Justices believe it should be heard. This is the expectation of all those seeking Supreme Court review, an expectation resulting from the practices of the Court. The Court already has great discretion not to hear almost all cases it does not wish to consider. Congress has given the Court this discretion by eliminating almost all avenues of appeal by right to the Court and instead giving the Court the power to pick the cases it wants to hear through the certiorari process. Accordingly, Congress should have the power to require the Court to review those cases where four Justices vote to hear the case. The procedures for obtaining access to our courts should be as transparent as possible, and it simply defies logic and makes a mockery of the phrase ``equal justice'' when four votes in one set of circumstances can result in Supreme Court review of a case, but not in other circumstances. The second title is ``TITLE II: DNA Testing.'' My bill also addresses the issue of DNA testing for prisoners who claim that such testing would exonerate them. This bill would establish the procedures for federal prisoners who seek such review. It would also mandate that states adopt similar procedures. My bill would establish federal procedures that set a middle ground between the two DNA bills that are currently pending before the Senate. My bill requires that a person seeking DNA testing not take a position inconsistent with any affirmative defense he may have raised at trial. An affirmative defense is one such as self-defense, where a defendant is not denying that he committed one or more of the acts constituting the charged offense, but the defendant is denying criminal responsibility. One of the other pending bills does not have any similar provision, and another bill requires that the defendant's current theory of defense not be inconsistent with a prior theory of defense. However, my bill would allow a defendant who pled guilty to request DNA testing. Unfortunately, there are instances where due to inadequate representation or lack of sophistication on a defendant's part, or for a variety of other reasons, a defendant will plead guilty to a crime that he did not commit. My bill would allow such a defendant to seek DNA testing. Another difference is that my bill has a five year limitation on its application, with one exception regarding newly discovered evidence. One of the other pending bills has no time limitation, and the other has a three year time limitation. The thrust of all the pending DNA bills is to allow a prisoner to seek potentially exculpatory DNA testing, even though such a request would otherwise be barred on procedural grounds, such as timeliness requirements. My bill would benefit those defendants currently incarcerated who did not have access to DNA testing at the time of their trials. My bill defines lack of access rather broadly. If 1, the technology was actually not available, or 2, it was not generally known that such testing was available at the time of trial, or 3, if the technology was available and the testing was not requested and the applicant shows that the failure to have requested testing is attributable to deficient performance on his counsel's part, then the applicant is deemed not to have had access to the testing. The bill would allow a prisoner to seek testing for up to five years after the enactment of the bill, with the exceptions I noted above. Five years would give all defendants currently incarcerated enough time to bring their claims. I do not propose that there be no time limitation, because I do not want to create an exception that could conceivably swallow the time limitations currently existing in federal law. However, that concern may be misplaced. A track record of five years can tell us if this bill is ripe for abuse. If not, then the bill can be reenacted with no time limit. If, however, there is evidence that is being abused by prisoners, then the law would expire. Based on my experience as a prosecutor, I am concerned that the three year limitation is not long enough to develop a good track record on the use of this testing. There would be an exception for this five year limitation. If a prisoner can show that there is newly discovered evidence in his case, and such evidence could not have been discovered through due diligence, or the failure to discover the evidence is attributable to deficient performance on his counsel's part, then he could bring a claim beyond the five year limit. This exception is consistent with the laws currently in force concerning newly discovered evidence. Some may question the need for these DNA testing procedures in federal cases, as the level of practice and standard of representation is considered to be of the highest caliber. Even at that level there can be problems. Even though it did not involve DNA testing, we had the case of Timothy McVeigh when only days before his scheduled execution the FBI announced that it had discovered documents it had failed to provide the defense before trial. This highlights that even at the federal level mistakes can be made. This bill would provide one safeguard against such mistakes. My bill would also mandate that states provide similar procedures to state prisoners in all cases. One of the pending bills has such a requirement, but only in capital cases. DNA evidence is such a powerful tool that can exonerate the unjustly convicted that I believe Congress has the authority pursuant to Section V of the 14th Amendment to impose post-conviction DNA testing requirements on the states. In 1963, the United States Supreme Court decided the seminal case of ``Brady v. Maryland,'' 373 U.S. 83, where the Court held that ``suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or punishment . . . .'' The Court also noted that ``[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.'' Congress has the authority to enact legislation to enforce the protections of the ``due process'' clause through Section V of the 14th Amendment. DNA evidence is the most powerful evidence that can be ``favorable to an accused,'' because it can prove that the accused did not commit the crime. But when DNA evidence remains in the hands of the state untested, we do not know if it is favorable or unfavorable to the accused. It really is not ``evidence'' until it is tested, because its relevancy to guilt or innocence cannot be determined without testing. When a state does not provide a defendant with the opportunity to determine whether evidence may exculpate him, the state is, in effect, ``suppressing . . . favorable evidence'' by not allowing a defendant to determine whether it is favorable or not. DNA evidence has proven to be extremely valuable to the criminal justice system. It has aided prosecutions and freed unjustly convicted persons. Since 1973, over 100 people have been freed from Death Row, at least 10 due to DNA testing. Additionally, over a total of 100 people have been freed after having been exonerated in both capital cases and non-capital cases due to DNA testing. The FBI has found that since 1989, DNA testing has cleared about 25% of sexual assault suspects whose samples are sent to the FBI for testing. Indeed, DNA evidence can be a stronger indicator of innocence than guilt. If the defendant's DNA does not match the DNA evidence, that is conclusive evidence. However, when a match results, in actuality, it is only a probability, albeit a very high probability, that the defendant was the source of the DNA. In questioning whether the death penalty was being fairly administered in the United States, Supreme Court Justice Sandra O'Connor noted the number of Death Row inmates freed due to being exonerated, to include by DNA testing. Indeed, she commented that ``[i]f statistics are any indication, the system may well be allowing some innocent defendants to be executed.'' This concern was made manifest when the Governor of Illinois ordered a moratorium on the death penalty after 13 Death Row inmates were exonerated. Justice O'Connor also noted that the availability of DNA testing in the various states varied widely, with some states affording this post-conviction DNA testing and others not providing any at all. Even in those states that offer such testing, there is a wide variation in procedures. My bill would require the states to adopt procedures similar to the federal standards and thereby promote consistency among the states. Indeed, the recent groundswell of opinion questioning the death penalty has been based on doubts about its accuracy. Providing Death Row defendants with the opportunity for DNA testing would do much to allay those concerns. But the death penalty is not the only reason for enacting this bill. Many federal and state prisoners are currently incarcerated for long sentences due to mandatory minimums and Sentencing Guidelines. Indeed, the prisoner most recently freed due to DNA testing had served 21 years of an 80 year sentence for rape. Additionally, DNA evidence is relevant in many types of cases, beyond the classic sex assault cases and violent crimes where there is blood evidence. For example, in a bank robbery case, the FBI was able to connect a suspected robber to the case by recovering some hairs from a woolen cap the robber used as a mask. Obviously, such evidence could also be used to exonerate a defendant. However, in order for this DNA testing to be of any use, there must be evidence to test. That is why this bill requires the preservation of biological evidence for the five year period after the enactment of this bill or, if someone requests testing pursuant to this bill, while those proceedings are underway. This bill does more than provide justice to wrongfully convicted defendants. It also protects the public. When a person is wrongfully convicted of murder or rape, that allows the real perpetrator to remain at large. And based on my experience as District Attorney, sexual predators, especially those who prey on children, have the highest levels of recidivism. As noted above, the authority for enacting this provision is Section V of the 14th Amendment to the Constitution. When a state fails to provide DNA testing that might bear on the guilt or innocence of a defendant, then the state is depriving the defendant of his life or liberty without due process of law. The state's interest in the finality of a conviction is strong. However, when balancing that interest against a prisoner's interest in not being wrongfully executed, justice cries out for access to DNA testing. The need for Congress to address this issue was highlighted by two recent federal court decisions that addressed giving state prisoners access to DNA testing. In the 2001 case of ``Godschalk v. Montgomery County District Attorney's Office,'' 177 F.Supp.2d 366, Judge Charles R. Weiner of the United States District Court for the Eastern District of Pennsylvania ruled that a prisoner who sought DNA testing had a right to such testing pursuant to the Due Process clause of the 14th Amendment because such evidence could be exculpatory evidence as defined by ``Brady v. Maryland'' and its progeny. In 1987, Godschalk had been convicted of two rapes committed in 1986. At the time of trial, DNA testing was not available. At the trial, the prosecution introduced an audiotaped confession by Godschalk that contained details of the crimes not known to the public. Godschalk's state appeals of his convictions were denied, as well as his petitions for DNA testing. Godschalk then brought an action pursuant to 42 U.S. Code Section 1983 seeking DNA testing. The evidence from only one of the rapes was still in a condition so that it could be tested, but there was no dispute that the same person committed both rapes. The court ordered the DNA testing, noting that ``[w]hile [Godschalk's] detailed confessions to the rapes are powerful inculpatory evidence, so to any DNA testing that would exclude [Godschalk] as the source of the genetic material taken from the victims would be powerful exculpatory evidence. . . . Given the well-known powerful exculpatory effect of DNA testing, confidence in the jury's finding of [Godschalk's] guilt at his past trial, where such evidence was not considered, would be undermined.'' 177 F.Supp.2d at 370. The evidence was tested, and it did not match Godschalks's DNA, and he was subsequently freed. The United States Court of Appeals for the Fourth Circuit reached a different result in the 2002 case of ``Harvey v. Horan,'' 278 F.3d at 370. In that case, Harvey had been convicted of rape and forcible sodomy. Harvey brought a Section 1983 action to have the evidence in that case tested with a new DNA technology that had not been available at the time of his trial. The district court granted his request, but on appeal the Fourth Circuit found his request to be procedurally barred. The court found that Section 1983 was not the proper path for such a request and that Harvey's request was, in effect, a petition for habeas corpus, which was statutorily barred as a successive petition. The court specifically noted that Harvey's path of redress was either through the state courts and legislature or Congress, stating that ``[f]ederal and state legislatures and state courts are free in ways that [the federal court is] not to set the ground rules by which further collateral attacks on state convictions such as Harvey's may be entertained.'' 278 F.3d at 380. The purpose of my bill is to establish those ``ground rules.'' The third title is ``Title III: Counsel Standards.'' Finally, my bill would establish minimal standards for defense counsel in state court cases where the defendant is facing the death penalty. In 1991, when my distinguished colleague and friend Senator Biden chaired the Judiciary Committee, he asked Professor James Liebman of Columbia Law School to calculate the frequency of relief in capital habeas corpus cases. This ultimately led Professor Liebman to conduct a study of the error rates in capital cases. His study found that one of the two most common errors prompting a majority of reversals at the state post-conviction stage was ``egregiously incompetent defense lawyers who didn't even look for and demonstrably missed important evidence that the defendant was innocent or did not deserve to die . . . .'' In a more recent study released this year, Professor Liebman again cited the poor quality of defense counsel as a contributing factor to erroneous results in capital cases. And we all have heard the stories of defense counsel sleeping during the course of a capital trial. My bill would establish minimal standards for defense counsel in capital cases who represent indigent defendants. The standards I propose are the same that are required in federal courts and establish an absolute floor for competence of counsel, both at the trial level and the appellate level. Unlike the other two pending bills, my bill would establish and mandate actual standards. If these standards are good enough for the federal courts, they should be good enough for state courts. They are specific enough to ensure that a defendant receives competent representation but also general enough so that they could be applied throughout the United States. Among other requirements, the bill would require that any counsel have several years of felony experience, and that a defendant would have a right to two defense counsel at trial. One of the requirements is that defense counsel be ``learned in the law applicable to capital cases.'' Concededly, this is a rather general requirement which we can develop and explore at hearings on this bill and bring more definition to through legislative history or amending the bill. However, such generic language would allow flexibility between the different states, where the number of capital cases vary widely. For example, there may be a very experienced felony defense counsel who has never actually tried a capital case, but has attended several training sessions put on by the ABA or an equivalent organization. Why should not such a person be deemed competent to serve as defense counsel in a capital case even though he or she may have never defended such a case before? And this ``generic'' requirement will have a strict enforcement mechanism described below that will ensure it has ``teeth.'' In the seminal 1963 case of ``Gideon v. Wainwright,'' 372 U.S. 335, the Supreme Court recognized that indigent defendants have a constitutional right to be represented by counsel in criminal cases. In the 1984 case of ``Strickland v. Washington,'' 466 U.S. 668, the Supreme Court held that a defendant has a constitutional right to effective assistance of counsel guaranteed by the 6th Amendment to the Constitution, and that this requirement applied to the states through the due process clause of the 14th Amendment. Interestingly, ``Strickland'' was a death penalty case. As these rights are guaranteed by the Constitution and apply to the states through the ``due process'' clause of the 14th Amendment, Congress has the authority to enforce these rights through Section V of that Amendment. There is no doubt that there is state action in these circumstances, as the state is responsible for appointing and compensating the counsel representing indigent defendants. My bill, however, also contains an additional enforcement mechanism. ``Strickland'' identified a two-part analysis in determining whether there was a constitutional violation due to ineffective assistance of counsel. The first prong of that analysis is a determination whether ``counsel's performance was deficient,'' that is, whether the ``counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'' ``Strickland,'' 466 U.S. at 687. The second prong requires a determination as to whether the ``counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'' Id. A defendant must establish both prongs to make a successful challenge. My bill would, in effect, eliminate the first prong of the analysis in a habeas corpus proceeding. If a defendant's counsel did not meet the standards established by my bill, then the first prong of ``deficient performance'' would be deemed to have been met. The defendant would then only have to satisfy the requirements of the second prong, thus allowing him to challenge the decisions his counsel made that influenced the outcome of the trial, without having to fear that the habeas court would deem such decisions to be ``tactical'' decisions that were within the realm of reasonable practice. However, if a state adopted the standards contained in my bill, a defendant would have to make both showings, as required by current law. A habeas court's review as to whether these standards were met will be ``de novo'' and the State would have the burden of proving that the standards had been met. This overall enforcement provision is analogous to the provision I referred to earlier in the 1996 antiterrorism act, that provided for expedited habeas review if a state adopted certain procedures for indigent defendants. The provisions of my bill are all aimed at achieving one goal-- securing for all defendants throughout the criminal justice process all the protections guaranteed by the ``due process'' clause and thereby ensuring that they receive fair treatment throughout the process, regardless of their income level. Mr. President, I ask unanimous consent that the bill containing these three provisions be printed in the Record. Additionally, in order to facilitate hearings or perhaps legislative enactment of these bills, I am introducing the three separately: a separate bill on DNA evidence; a separate bill on staying execution, where the Supreme Court has granted certiorari; and a separate bill on adequacy of counsel, so that, in total, four bills are being introduced, and I ask that these bills also be printed in the Record.

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which is designed to have societal rights check law enforcement and to protect defendants' rights to fundamental fairness. We are seeing an evolution of a number of problems in the criminal courts, especially applicable to capital cases involving the death penalty where I believe we are in danger of losing the death penalty in the United States if we do not act to see to it that there is fairness. For example, there is one case specifically where the Supreme Court of the United States had four votes to grant certiorari where the defendant was under the death penalty, and that individual was executed without the Supreme Court hearing the case because there was not a fifth vote to stay the execution. In the past several years, there has been growing evidence that DNA materials would have exonerated many individuals who have been in jail, and among those quite a number of individuals who have been under the death penalty. And we have also seen very significant problems with the adequacy of defense counsel in capital cases. The legislation I am introducing today will address these issues. During my tenure as district attorney of Philadelphia--from 1966 to 1974--I became convinced that the death penalty is an effective deterrent. I had come to that conclusion earlier when I was an assistant district attorney for 4 years preceding my tenure as Philadelphia's district attorney. I have seen many cases where individuals will decline to carry weapons on robberies or burglaries because of fear that a killing might occur, and that would be murder in the first degree under the felony murder rule and therefore carry the death penalty. One case is illustrative of many I have seen. There was a case in the late 1950s in Philadelphia with three defendants, Cater, Rivers, and Williams. Those young men were 17, 18, and 19 years old, respectively. They had IQs of less than 100. They set out to rob a merchant in North Philadelphia, and Williams had a gun. Cater and Rivers said: We are not going to go along on this robbery if you take the gun. They took that position because they were apprehensive that a killing might result and they could face the death penalty under the felony murder rule. That is a rule which says anyone committing one of five enumerated felonies, including robbery, would be subject to murder in the first degree and the death penalty if there was a killing in the course of that robbery. Williams put the gun in the drawer, slammed it shut, and, as the three of them walked out, unbeknownst to Cater and Rivers, Williams took the gun with him. They robbed the store. In the course of the melee, the merchant was killed. The three of them faced murder in the first degree charges and the death penalty. In the course of the investigation, the confessions disclosed the essential facts which I have related, and all three got the death penalty. Williams, the gunman, was subsequently executed, in the early 1960s, one of the last people executed in Pennsylvania before ``Furman v. Georgia'' set aside all of the death penalty cases. Cater's and Rivers's cases came up later. I was an assistant DA at the time and argued that case in the Supreme Court of Pennsylvania. Later, when I was district attorney, Cater and Rivers argued for commutation. Representing the Commonwealth, I agreed that they should not face the death penalty but should face life imprisonment because they had tried to dissuade Williams from carrying the gun. Although in the eyes of the law their culpability was the same as a coconspirator, it seemed to me that as a matter of fairness they ought not to have the death penalty. That case is illustrative of many cases which have convinced me that the death penalty is a deterrent. But if we are to retain the deterrent, we have to be very careful how we use the death penalty. When I was district attorney of Philadelphia, we had some 500 homicides a year. I would not permit any of my 160 assistants to ask for the death penalty without my personal review. We asked for the death penalty in a very limited number of cases--four, or five, or six a year--really heinous and outrageous cases where it was the conclusion that only the death penalty would suffice. There has recently been a commission in Illinois which has been very critical of the application of the death penalty. The Governor of Illinois has declared a moratorium on the death penalty. And with the growing number of DNA cases which are arising, it is my view, that unless some action is taken to see to it that there are not executions of people whose innocence might be established through DNA evidence, that we will soon lose the death penalty. So it is a matter of protecting society's interest to maintain the death penalty that this legislation is being introduced, and, at the same time, with equal force, it is in order to provide fundamental fairness to defendants. Where DNA evidence is available, it ought to be examined. And we know it has the capacity, in many, many cases, to rule out the defendant. The science of DNA has progressed to the point where tangible evidence may specifically exclude a defendant. We have seen many cases where incarcerated people, including those awaiting the death penalty, have been released when the DNA evidence has established their innocence. There is legislation pending, but none reaches what I consider to be the fundamental question--I ask unanimous consent that I may proceed for an additional 3 minutes.

Mr. SPECTER. The pending legislation does not reach the critical issue; and that is, to establish a right to DNA evidence as a constitutional right. Congress, under section V of the 14th amendment, has the authority to legislate in furtherance of the due process clause. Congress has been very inert on establishing constitutional rights under our legislative authority under section V. We have seen the wave of Supreme Court decisions in the constitutional area--``Mapp v. Ohio,'' where the Supreme Court of the United States said it was a constitutional right not be subjected to unreasonable searches and seizures, incorporating the search and seizure provisions of the 4th amendment into the due process clause of the 14th amendment. The Supreme Court, ``Miranda v. Arizona,'' required warnings for those suspects who are in custodial interrogation. And there have been many cases where it has been up to the Court to establish the constitutional right. In the obvious landmark case, perhaps the most important case in American constitutional history, ``Brown v. Board of Education of Topeka,'' it was up to the Supreme Court to establish desegregation as a constitutional right. Action should have been taken long before by the Congress, long before by the executive branch, and long before by the State legislatures; but it was up to the Court to establish that constitutional right. There has been one case in the Eastern District of Pennsylvania, the ``Godschalk'' case, where Judge Weiner established a constitutional right for the defendant to see DNA evidence. And there is a Fourth Circuit opinion which addresses the issue but leaves it up to the Congress to act. And that is a matter that is taken up in this legislation. On two other items, the bill will first provide for a true opportunity for defendants to have their cases considered by the courts. For example, there was a case where the Supreme Court of the United States had four justices willing to vote to grant certiorari and the defendant was executed because there was not a fifth justice voting for a stay of execution--and I ask unanimous consent that the case be included in the Record.

Mr. SPECTER

Mr. SPECTER. The legislation further addresses the issue of adequacy of counsel. I will now describe the specific provisions of the bill I am offering today, and the cases and history that shows the manifest need for such legislation. The bill contains three titles. The first Title will ensure that defendants facing the death penalty will not be executed while the Supreme Court considers their petitions for certiorari or their cases on the merits. The second Title will ensure that both federal and state defendants have a meaningful opportunity to present DNA evidence in their defense. Finally, the third Title will establish minimal standards for defense counsel representing defendants in death penalty cases in state court. I am additionally introducing these three Titles as three separate bills, as I will explain later. The first is ``Title I: Right to Review of the Death Penalty While a Case is Pending Before the Supreme Court.'' There have been death penalty cases where, despite the fact that the Supreme Court was either considering to grant certiorari or had actually granted certiorari and the case was pending, the Court did not issue a stay of execution in the interim. In the 1990 case of ``(Alexzene) Hamilton v. Texas,'' 497 U.S. 1016, the Supreme Court failed to issue a stay of execution while considering a cert. petition, and the defendant was executed before the Court ruled on the petition. James Smith was convicted in 1984 of committing murder while perpetrating a robbery in 1983. He was sentenced to death. Smith appealed his conviction to the Texas Court of Criminal Appeals, citing seven points of errors, ranging from insufficiency of evidence to sustain a death sentence to challenges to the jury selection process in the trial. ``Smith v. State,'' 744 S.W.2d 86, Tex. Crim. App. 1987. In 1987, that court affirmed his conviction and sentence. In April, 1988, Smith waived any further appellate review of his case. His mother, Alexzene Hamilton, then entered the case, and filed a state habeas corpus petition in the Court of Criminal Appeals, claiming that her son was incompetent. The state responded to the mother's petition, and the Texas court denied relief. Ms. Hamilton then brought a petition for certiorari in the Supreme Court. The Supreme Court granted a stay of execution pending disposition of the cert. petition. ``Hamilton v. Texas,'' 485 U.S. 1042, 1988. The Court entered an order stating that the ``stay of execution of sentence of death . . . is granted pending the disposition by [the] Court of petition for writ of certiorari. Should the petition for a writ of certiorari be denied, this stay terminates automatically. In the event the petition . . . is granted, this stay shall continue pending the issuance of the mandate of [the] Court.'' Id. On April 3, 1990, the cert. petition was denied. ``Hamilton v. Texas,'' 496 U.S. 913, 1990. In May, 1990, the state trial court conducted a hearing and found that Smith still wanted to waive his appellate rights and that he was still competent. The trial court scheduled his execution for June 26, 1990. Ms. Hamilton again brought a writ of habeas corpus in the state courts on June 20, 1990, challenging the court's finding that Smith was competent. On June 22, 1990, the state courts denied this petition. Ms. Hamilton then filed a habeas petition in federal district court on June 23, 1990, which the court denied on June 24th. However, Dr. Brown, one of the several doctors that had previously opined that Smith was competent, stated that he now had some doubts of Smith's competency due to his review of some medical records he had not previously seen. The federal district court found that this new opinion did not affect its findings, and denied Ms. Hamilton's request for reconsideration. On June 25th, the state trial court had Dr. Brown re- examine Smith, and Dr. Brown then returned to his original opinion that Smith was competent. On the same day, the trial court then denied Ms. Hamilton's habeas corpus petition. The Texas Court of Criminal Appeals also dismissed Ms. Hamilton's motion for reconsideration on the same day. Additionally, on the same day, the United States Court of Appeals for the Fifth Circuit affirmed the federal district court's dismissal of the habeas petition and denied her motion for a stay of execution. ``Hamilton v. Collins,'' 905 F.2d 825, 5th Cir. 1990. Ms. Hamilton then filed petitions for certiorari, asking the Supreme Court to review both the state and federal court decisions and for a stay of execution. On June 26, 1990, the originally scheduled execution date, four Supreme Court Justices voted to grant certiorari, but for some unknown procedural reason, the Court did not formally act on the petition. The Court also did not vote to grant a stay of execution. Smith was subsequently executed before the Supreme Court decided on his cert. petition. The Supreme Court then denied Smith's petitions of certiorari. ``Hamilton v. Collins,'' 498 U.S. 895, 1990; ``Hamilton v. Texas,'' 498 U.S. 908, 1990. In denying the petition from the state court decision, the Court noted that it was dismissing the petition as ``moot.'' 498 U.S. 908, Stevens, J., concurring in the dismissal of the petition. In the 1992 case of ``Herrera v. Collins,'' 502 U.S. 1085, the Court actually granted certiorari but failed to issue the stay. Herrera had been convicted of the 1981 murder of two police officers. Herrera then pursued two lines of appeals through the Texas state system--direct appeal and then collateral proceedings. Herrera then pursued two sequential federal habeas corpus proceedings. During these proceedings, certiorari had been denied three times, but on the second federal habeas proceeding, certiorari was granted. Herrera's claim was that he was actually innocent in this proceeding. After granting certiorari, the Supreme Court failed to grant a stay of execution. However, in that case, the Texas Court of Criminal Appeals granted a stay while the case was pending before the Supreme Court. Herrera's claim was ultimately denied by the Supreme Court and he was executed. The reason for this sequence is a procedural twist. By Supreme Court practice, it takes only four votes to grant certiorari. Although certiorari is recognized by statute as the procedure for getting a case before the Court, the statute does not state how many votes are needed. The four vote standard is the practice of the Court. However, to grant a stay, there must be a majority--five votes--and the standard the Court applies is different from that for granting certiorari. There may be good reasons why the standard is different, and in almost all other cases, the failure to grant a stay when certiorari has been granted or while the Court is still considering whether to grant certiorari does not have the dispositive effect that it does in a capital punishment case. However, in a capital case, the failure to grant a stay while the Court considers whether to even hear the case sends the signal that the Court is, in effect, affirming the decision of a lower court before it even decides that the lower court's decision is worthy of affirmation. In a case where the Court has actually granted certiorari and failed to issue a stay the Court, in effect, tells the world that a case is important enough to be heard, but not important enough to postpone an execution. Until relatively recently, the Supreme Court had an ``informal'' practice where a fifth Justice would vote to grant a stay when four justices had voted to grant certiorari. The late Justice Brennan articulated the rationale for this rule: A minority of the Justices has the power to grant a petition for certiorari over the objection of five Justices. The reason for this ``antimajoritarianism'' is evident: in the context of a preliminary 5-4 vote to deny, 5 give the 4 an opportunity to change at least one mind. Accordingly, when four vote to grant certiorari in a capital case, but there is not a fifth vote to stay the scheduled execution, one of the five Justices who does not believe the case worthy of granting certiorari will nonetheless vote to stay; this is so that the ``Rule of Four'' will not be rendered meaningless by an execution that occurs before the Court considers the case on the merits. ``Straight v. Wainwright,'' 476 U.S. 1132, 1134-35, 1986, Brennan, J., dissenting. Justice Brennan's argument requires no further elaboration. Justice Brennan's opinion involved a ``hold'' case, where he was arguing that a stay should have been granted. The ``hold'' is an informal practice whereby at least three Justices of the Supreme Court can ``hold'' the Court from acting on a petition for certiorari so that the Court does not deny the petition. A ``hold'' is placed on a case when the Court has another case pending before the Court, the disposition of which may have an affect on the first case. In addition to Justice Brennan's argument, there are other reasons why a stay should be granted. In my experience as District Attorney in Philadelphia, and conducting oversight of the Justice Department while serving in the Senate, one theme is constant concerning our system of criminal justice: It rests on a bedrock that all Americans see the system as being fair to all. When the average American questions the fundamental fairness of any aspect of the criminal justice system, then it is in trouble. To the average American, when the Supreme Court has not yet decided whether it should consider a case or, has in fact, decided to consider a case by granting certiorari, but then fails to act to ensure that it can in actuality hear the case, that raises fundamental questions about fairness, regardless of the procedural nuances that legally allow for such a result. If we are to maintain confidence in our criminal justice system, then it has to be seen as fair to all. When the Supreme Court takes action like this, in my judgment, it denies the defendant his constitutional right of ``due process'' of law which, in these circumstances, is colloquially referred to as ``procedural due process.'' When the government takes action against an individual, the essential core of procedural due process is notice and an opportunity to be heard. In the instant case, we are not concerned with the notice aspect because the defendant knows why he was convicted. But when the Supreme Court has a case pending before it-that is a motion to stay execution or a petition for certiorari has been filed or the Court has issued a writ of certiorari-and then fails to grant a stay so that it can actually consider the petition or hear the case, it denies the defendant due process of law because the defendant is deprived of his right to be heard. A motion for a stay of execution should be treated as a petition for certiorari in these circumstances because, in effect, the motion is a preliminary petition for certiorari. As I noted earlier, the writ of certiorari is codified in Title 28 of the U.S. Code. No defendant has a constitutional right to have his or her case heard by the Supreme Court. But once the defendant files a petition, then the defendant has a statutory right to have, at the very least, his petition considered by the court and, if the petition is granted, then the right to have his case considered by the Court. This is the method that Congress has created for the consideration of these cases, which does not allow a right of direct appeal. As Congress has created this two step procedural mechanism, Congress has the authority to ensure that it is effective. The Court does not have to grant a petition, but it must, at the very least, not allow a petition to become moot before it even makes this very basic decision. The same logic applies if the Court grants the petition. The Court cannot consider the petition or the case if the defendant is executed before the Court acts. When a defendant is executed in these circumstances, he is being denied his right to be heard on his petition or his case and is therefore denied his basic right to ``procedural due process.'' The legislation I propose addresses this issue both at the federal and state level. With respect to federal cases, my proposed bill would prohibit the Bureau of Prisons or the military from executing a death row inmate when a defendant has filed a petition for certiorari and when the Supreme Court has granted certiorari. Congress created the federal death penalty, and Congress can establish the conditions when it can or cannot be carried out. With respect to state cases, my bill would address this issue in two different ways. First, just as with federal cases, my bill would prohibit the executive officer of a state from executing a defendant when a cert. petition is pending or has been granted. Congress's authority to legislate in this arena is derived from Section V of the 14th Amendment which reads that ``[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'' Section 1 of that Amendment reads in pertinent part that no ``State [shall] deprive any person of life . . . without due process of law. . . .'' As noted above, when a person is executed before the Supreme Court has granted or denied certiorari or acted on a case once cert. is granted, that person is deprived of his or her life without due process of law. My bill would also require the Court to treat a motion for a stay of execution as a petition for certiorari. Furthermore, this bill would also require all federal judges, to include Supreme Court justices, to issue a stay whenever a habeas corpus case is pending before the judge or judges and the habeas petitioner defendant has been sentenced to death. A case is considered to be pending if a defendant has filed a notice of appeal, filed a motion for a stay of execution, filed a petition for certiorari, or when certiorari has been granted. Most death penalty cases, both federal and state cases, have their final hearings through federal habeas corpus review. Congress has broad authority in the area of habeas corpus legislation. Indeed, Congress enacted a similar provision as part of the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S. Code Section 2262 requires a federal court to issue a stay of execution in those circumstances where a defense counsel has been appointed to an indigent defendant and a state is seeking to fall within the streamlined habeas corpus procedures contained in the Act. Additionally, my bill would require a lower court to issue a stay if a higher court did not in these circumstances. Finally, my bill would require that if four Justices vote to grant certiorari in a death penalty case, then certiorari will be granted. When a person petitions the Supreme Court to hear his or her case, that person expects to have the case heard if four Justices believe it should be heard. This is the expectation of all those seeking Supreme Court review, an expectation resulting from the practices of the Court. The Court already has great discretion not to hear almost all cases it does not wish to consider. Congress has given the Court this discretion by eliminating almost all avenues of appeal by right to the Court and instead giving the Court the power to pick the cases it wants to hear through the certiorari process. Accordingly, Congress should have the power to require the Court to review those cases where four Justices vote to hear the case. The procedures for obtaining access to our courts should be as transparent as possible, and it simply defies logic and makes a mockery of the phrase ``equal justice'' when four votes in one set of circumstances can result in Supreme Court review of a case, but not in other circumstances. The second title is ``TITLE II: DNA Testing.'' My bill also addresses the issue of DNA testing for prisoners who claim that such testing would exonerate them. This bill would establish the procedures for federal prisoners who seek such review. It would also mandate that states adopt similar procedures. My bill would establish federal procedures that set a middle ground between the two DNA bills that are currently pending before the Senate. My bill requires that a person seeking DNA testing not take a position inconsistent with any affirmative defense he may have raised at trial. An affirmative defense is one such as self-defense, where a defendant is not denying that he committed one or more of the acts constituting the charged offense, but the defendant is denying criminal responsibility. One of the other pending bills does not have any similar provision, and another bill requires that the defendant's current theory of defense not be inconsistent with a prior theory of defense. However, my bill would allow a defendant who pled guilty to request DNA testing. Unfortunately, there are instances where due to inadequate representation or lack of sophistication on a defendant's part, or for a variety of other reasons, a defendant will plead guilty to a crime that he did not commit. My bill would allow such a defendant to seek DNA testing. Another difference is that my bill has a five year limitation on its application, with one exception regarding newly discovered evidence. One of the other pending bills has no time limitation, and the other has a three year time limitation. The thrust of all the pending DNA bills is to allow a prisoner to seek potentially exculpatory DNA testing, even though such a request would otherwise be barred on procedural grounds, such as timeliness requirements. My bill would benefit those defendants currently incarcerated who did not have access to DNA testing at the time of their trials. My bill defines lack of access rather broadly. If 1, the technology was actually not available, or 2, it was not generally known that such testing was available at the time of trial, or 3, if the technology was available and the testing was not requested and the applicant shows that the failure to have requested testing is attributable to deficient performance on his counsel's part, then the applicant is deemed not to have had access to the testing. The bill would allow a prisoner to seek testing for up to five years after the enactment of the bill, with the exceptions I noted above. Five years would give all defendants currently incarcerated enough time to bring their claims. I do not propose that there be no time limitation, because I do not want to create an exception that could conceivably swallow the time limitations currently existing in federal law. However, that concern may be misplaced. A track record of five years can tell us if this bill is ripe for abuse. If not, then the bill can be reenacted with no time limit. If, however, there is evidence that is being abused by prisoners, then the law would expire. Based on my experience as a prosecutor, I am concerned that the three year limitation is not long enough to develop a good track record on the use of this testing. There would be an exception for this five year limitation. If a prisoner can show that there is newly discovered evidence in his case, and such evidence could not have been discovered through due diligence, or the failure to discover the evidence is attributable to deficient performance on his counsel's part, then he could bring a claim beyond the five year limit. This exception is consistent with the laws currently in force concerning newly discovered evidence. Some may question the need for these DNA testing procedures in federal cases, as the level of practice and standard of representation is considered to be of the highest caliber. Even at that level there can be problems. Even though it did not involve DNA testing, we had the case of Timothy McVeigh when only days before his scheduled execution the FBI announced that it had discovered documents it had failed to provide the defense before trial. This highlights that even at the federal level mistakes can be made. This bill would provide one safeguard against such mistakes. My bill would also mandate that states provide similar procedures to state prisoners in all cases. One of the pending bills has such a requirement, but only in capital cases. DNA evidence is such a powerful tool that can exonerate the unjustly convicted that I believe Congress has the authority pursuant to Section V of the 14th Amendment to impose post-conviction DNA testing requirements on the states. In 1963, the United States Supreme Court decided the seminal case of ``Brady v. Maryland,'' 373 U.S. 83, where the Court held that ``suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or punishment . . . .'' The Court also noted that ``[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.'' Congress has the authority to enact legislation to enforce the protections of the ``due process'' clause through Section V of the 14th Amendment. DNA evidence is the most powerful evidence that can be ``favorable to an accused,'' because it can prove that the accused did not commit the crime. But when DNA evidence remains in the hands of the state untested, we do not know if it is favorable or unfavorable to the accused. It really is not ``evidence'' until it is tested, because its relevancy to guilt or innocence cannot be determined without testing. When a state does not provide a defendant with the opportunity to determine whether evidence may exculpate him, the state is, in effect, ``suppressing . . . favorable evidence'' by not allowing a defendant to determine whether it is favorable or not. DNA evidence has proven to be extremely valuable to the criminal justice system. It has aided prosecutions and freed unjustly convicted persons. Since 1973, over 100 people have been freed from Death Row, at least 10 due to DNA testing. Additionally, over a total of 100 people have been freed after having been exonerated in both capital cases and non-capital cases due to DNA testing. The FBI has found that since 1989, DNA testing has cleared about 25% of sexual assault suspects whose samples are sent to the FBI for testing. Indeed, DNA evidence can be a stronger indicator of innocence than guilt. If the defendant's DNA does not match the DNA evidence, that is conclusive evidence. However, when a match results, in actuality, it is only a probability, albeit a very high probability, that the defendant was the source of the DNA. In questioning whether the death penalty was being fairly administered in the United States, Supreme Court Justice Sandra O'Connor noted the number of Death Row inmates freed due to being exonerated, to include by DNA testing. Indeed, she commented that ``[i]f statistics are any indication, the system may well be allowing some innocent defendants to be executed.'' This concern was made manifest when the Governor of Illinois ordered a moratorium on the death penalty after 13 Death Row inmates were exonerated. Justice O'Connor also noted that the availability of DNA testing in the various states varied widely, with some states affording this post-conviction DNA testing and others not providing any at all. Even in those states that offer such testing, there is a wide variation in procedures. My bill would require the states to adopt procedures similar to the federal standards and thereby promote consistency among the states. Indeed, the recent groundswell of opinion questioning the death penalty has been based on doubts about its accuracy. Providing Death Row defendants with the opportunity for DNA testing would do much to allay those concerns. But the death penalty is not the only reason for enacting this bill. Many federal and state prisoners are currently incarcerated for long sentences due to mandatory minimums and Sentencing Guidelines. Indeed, the prisoner most recently freed due to DNA testing had served 21 years of an 80 year sentence for rape. Additionally, DNA evidence is relevant in many types of cases, beyond the classic sex assault cases and violent crimes where there is blood evidence. For example, in a bank robbery case, the FBI was able to connect a suspected robber to the case by recovering some hairs from a woolen cap the robber used as a mask. Obviously, such evidence could also be used to exonerate a defendant. However, in order for this DNA testing to be of any use, there must be evidence to test. That is why this bill requires the preservation of biological evidence for the five year period after the enactment of this bill or, if someone requests testing pursuant to this bill, while those proceedings are underway. This bill does more than provide justice to wrongfully convicted defendants. It also protects the public. When a person is wrongfully convicted of murder or rape, that allows the real perpetrator to remain at large. And based on my experience as District Attorney, sexual predators, especially those who prey on children, have the highest levels of recidivism. As noted above, the authority for enacting this provision is Section V of the 14th Amendment to the Constitution. When a state fails to provide DNA testing that might bear on the guilt or innocence of a defendant, then the state is depriving the defendant of his life or liberty without due process of law. The state's interest in the finality of a conviction is strong. However, when balancing that interest against a prisoner's interest in not being wrongfully executed, justice cries out for access to DNA testing. The need for Congress to address this issue was highlighted by two recent federal court decisions that addressed giving state prisoners access to DNA testing. In the 2001 case of ``Godschalk v. Montgomery County District Attorney's Office,'' 177 F.Supp.2d 366, Judge Charles R. Weiner of the United States District Court for the Eastern District of Pennsylvania ruled that a prisoner who sought DNA testing had a right to such testing pursuant to the Due Process clause of the 14th Amendment because such evidence could be exculpatory evidence as defined by ``Brady v. Maryland'' and its progeny. In 1987, Godschalk had been convicted of two rapes committed in 1986. At the time of trial, DNA testing was not available. At the trial, the prosecution introduced an audiotaped confession by Godschalk that contained details of the crimes not known to the public. Godschalk's state appeals of his convictions were denied, as well as his petitions for DNA testing. Godschalk then brought an action pursuant to 42 U.S. Code Section 1983 seeking DNA testing. The evidence from only one of the rapes was still in a condition so that it could be tested, but there was no dispute that the same person committed both rapes. The court ordered the DNA testing, noting that ``[w]hile [Godschalk's] detailed confessions to the rapes are powerful inculpatory evidence, so to any DNA testing that would exclude [Godschalk] as the source of the genetic material taken from the victims would be powerful exculpatory evidence. . . . Given the well-known powerful exculpatory effect of DNA testing, confidence in the jury's finding of [Godschalk's] guilt at his past trial, where such evidence was not considered, would be undermined.'' 177 F.Supp.2d at 370. The evidence was tested, and it did not match Godschalks's DNA, and he was subsequently freed. The United States Court of Appeals for the Fourth Circuit reached a different result in the 2002 case of ``Harvey v. Horan,'' 278 F.3d at 370. In that case, Harvey had been convicted of rape and forcible sodomy. Harvey brought a Section 1983 action to have the evidence in that case tested with a new DNA technology that had not been available at the time of his trial. The district court granted his request, but on appeal the Fourth Circuit found his request to be procedurally barred. The court found that Section 1983 was not the proper path for such a request and that Harvey's request was, in effect, a petition for habeas corpus, which was statutorily barred as a successive petition. The court specifically noted that Harvey's path of redress was either through the state courts and legislature or Congress, stating that ``[f]ederal and state legislatures and state courts are free in ways that [the federal court is] not to set the ground rules by which further collateral attacks on state convictions such as Harvey's may be entertained.'' 278 F.3d at 380. The purpose of my bill is to establish those ``ground rules.'' The third title is ``Title III: Counsel Standards.'' Finally, my bill would establish minimal standards for defense counsel in state court cases where the defendant is facing the death penalty. In 1991, when my distinguished colleague and friend Senator Biden chaired the Judiciary Committee, he asked Professor James Liebman of Columbia Law School to calculate the frequency of relief in capital habeas corpus cases. This ultimately led Professor Liebman to conduct a study of the error rates in capital cases. His study found that one of the two most common errors prompting a majority of reversals at the state post-conviction stage was ``egregiously incompetent defense lawyers who didn't even look for and demonstrably missed important evidence that the defendant was innocent or did not deserve to die . . . .'' In a more recent study released this year, Professor Liebman again cited the poor quality of defense counsel as a contributing factor to erroneous results in capital cases. And we all have heard the stories of defense counsel sleeping during the course of a capital trial. My bill would establish minimal standards for defense counsel in capital cases who represent indigent defendants. The standards I propose are the same that are required in federal courts and establish an absolute floor for competence of counsel, both at the trial level and the appellate level. Unlike the other two pending bills, my bill would establish and mandate actual standards. If these standards are good enough for the federal courts, they should be good enough for state courts. They are specific enough to ensure that a defendant receives competent representation but also general enough so that they could be applied throughout the United States. Among other requirements, the bill would require that any counsel have several years of felony experience, and that a defendant would have a right to two defense counsel at trial. One of the requirements is that defense counsel be ``learned in the law applicable to capital cases.'' Concededly, this is a rather general requirement which we can develop and explore at hearings on this bill and bring more definition to through legislative history or amending the bill. However, such generic language would allow flexibility between the different states, where the number of capital cases vary widely. For example, there may be a very experienced felony defense counsel who has never actually tried a capital case, but has attended several training sessions put on by the ABA or an equivalent organization. Why should not such a person be deemed competent to serve as defense counsel in a capital case even though he or she may have never defended such a case before? And this ``generic'' requirement will have a strict enforcement mechanism described below that will ensure it has ``teeth.'' In the seminal 1963 case of ``Gideon v. Wainwright,'' 372 U.S. 335, the Supreme Court recognized that indigent defendants have a constitutional right to be represented by counsel in criminal cases. In the 1984 case of ``Strickland v. Washington,'' 466 U.S. 668, the Supreme Court held that a defendant has a constitutional right to effective assistance of counsel guaranteed by the 6th Amendment to the Constitution, and that this requirement applied to the states through the due process clause of the 14th Amendment. Interestingly, ``Strickland'' was a death penalty case. As these rights are guaranteed by the Constitution and apply to the states through the ``due process'' clause of the 14th Amendment, Congress has the authority to enforce these rights through Section V of that Amendment. There is no doubt that there is state action in these circumstances, as the state is responsible for appointing and compensating the counsel representing indigent defendants. My bill, however, also contains an additional enforcement mechanism. ``Strickland'' identified a two-part analysis in determining whether there was a constitutional violation due to ineffective assistance of counsel. The first prong of that analysis is a determination whether ``counsel's performance was deficient,'' that is, whether the ``counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'' ``Strickland,'' 466 U.S. at 687. The second prong requires a determination as to whether the ``counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'' Id. A defendant must establish both prongs to make a successful challenge. My bill would, in effect, eliminate the first prong of the analysis in a habeas corpus proceeding. If a defendant's counsel did not meet the standards established by my bill, then the first prong of ``deficient performance'' would be deemed to have been met. The defendant would then only have to satisfy the requirements of the second prong, thus allowing him to challenge the decisions his counsel made that influenced the outcome of the trial, without having to fear that the habeas court would deem such decisions to be ``tactical'' decisions that were within the realm of reasonable practice. However, if a state adopted the standards contained in my bill, a defendant would have to make both showings, as required by current law. A habeas court's review as to whether these standards were met will be ``de novo'' and the State would have the burden of proving that the standards had been met. This overall enforcement provision is analogous to the provision I referred to earlier in the 1996 antiterrorism act, that provided for expedited habeas review if a state adopted certain procedures for indigent defendants. The provisions of my bill are all aimed at achieving one goal-- securing for all defendants throughout the criminal justice process all the protections guaranteed by the ``due process'' clause and thereby ensuring that they receive fair treatment throughout the process, regardless of their income level. Mr. President, I ask unanimous consent that the bill containing these three provisions be printed in the Record. Additionally, in order to facilitate hearings or perhaps legislative enactment of these bills, I am introducing the three separately: a separate bill on DNA evidence; a separate bill on staying execution, where the Supreme Court has granted certiorari; and a separate bill on adequacy of counsel, so that, in total, four bills are being introduced, and I ask that these bills also be printed in the Record.

Mr. SPECTER. The pending legislation does not reach the critical issue; and that is, to establish a right to DNA evidence as a constitutional right. Congress, under section V of the 14th amendment, has the authority to legislate in furtherance of the due process clause. Congress has been very inert on establishing constitutional rights under our legislative authority under section V. We have seen the wave of Supreme Court decisions in the constitutional area--``Mapp v. Ohio,'' where the Supreme Court of the United States said it was a constitutional right not be subjected to unreasonable searches and seizures, incorporating the search and seizure provisions of the 4th amendment into the due process clause of the 14th amendment. The Supreme Court, ``Miranda v. Arizona,'' required warnings for those suspects who are in custodial interrogation. And there have been many cases where it has been up to the Court to establish the constitutional right. In the obvious landmark case, perhaps the most important case in American constitutional history, ``Brown v. Board of Education of Topeka,'' it was up to the Supreme Court to establish desegregation as a constitutional right. Action should have been taken long before by the Congress, long before by the executive branch, and long before by the State legislatures; but it was up to the Court to establish that constitutional right. There has been one case in the Eastern District of Pennsylvania, the ``Godschalk'' case, where Judge Weiner established a constitutional right for the defendant to see DNA evidence. And there is a Fourth Circuit opinion which addresses the issue but leaves it up to the Congress to act. And that is a matter that is taken up in this legislation. On two other items, the bill will first provide for a true opportunity for defendants to have their cases considered by the courts. For example, there was a case where the Supreme Court of the United States had four justices willing to vote to grant certiorari and the defendant was executed because there was not a fifth justice voting for a stay of execution--and I ask unanimous consent that the case be included in the Record.

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which is designed to have societal rights check law enforcement and to protect defendants' rights to fundamental fairness. We are seeing an evolution of a number of problems in the criminal courts, especially applicable to capital cases involving the death penalty where I believe we are in danger of losing the death penalty in the United States if we do not act to see to it that there is fairness. For example, there is one case specifically where the Supreme Court of the United States had four votes to grant certiorari where the defendant was under the death penalty, and that individual was executed without the Supreme Court hearing the case because there was not a fifth vote to stay the execution. In the past several years, there has been growing evidence that DNA materials would have exonerated many individuals who have been in jail, and among those quite a number of individuals who have been under the death penalty. And we have also seen very significant problems with the adequacy of defense counsel in capital cases. The legislation I am introducing today will address these issues. During my tenure as district attorney of Philadelphia--from 1966 to 1974--I became convinced that the death penalty is an effective deterrent. I had come to that conclusion earlier when I was an assistant district attorney for 4 years preceding my tenure as Philadelphia's district attorney. I have seen many cases where individuals will decline to carry weapons on robberies or burglaries because of fear that a killing might occur, and that would be murder in the first degree under the felony murder rule and therefore carry the death penalty. One case is illustrative of many I have seen. There was a case in the late 1950s in Philadelphia with three defendants, Cater, Rivers, and Williams. Those young men were 17, 18, and 19 years old, respectively. They had IQs of less than 100. They set out to rob a merchant in North Philadelphia, and Williams had a gun. Cater and Rivers said: We are not going to go along on this robbery if you take the gun. They took that position because they were apprehensive that a killing might result and they could face the death penalty under the felony murder rule. That is a rule which says anyone committing one of five enumerated felonies, including robbery, would be subject to murder in the first degree and the death penalty if there was a killing in the course of that robbery. Williams put the gun in the drawer, slammed it shut, and, as the three of them walked out, unbeknownst to Cater and Rivers, Williams took the gun with him. They robbed the store. In the course of the melee, the merchant was killed. The three of them faced murder in the first degree charges and the death penalty. In the course of the investigation, the confessions disclosed the essential facts which I have related, and all three got the death penalty. Williams, the gunman, was subsequently executed, in the early 1960s, one of the last people executed in Pennsylvania before ``Furman v. Georgia'' set aside all of the death penalty cases. Cater's and Rivers's cases came up later. I was an assistant DA at the time and argued that case in the Supreme Court of Pennsylvania. Later, when I was district attorney, Cater and Rivers argued for commutation. Representing the Commonwealth, I agreed that they should not face the death penalty but should face life imprisonment because they had tried to dissuade Williams from carrying the gun. Although in the eyes of the law their culpability was the same as a coconspirator, it seemed to me that as a matter of fairness they ought not to have the death penalty. That case is illustrative of many cases which have convinced me that the death penalty is a deterrent. But if we are to retain the deterrent, we have to be very careful how we use the death penalty. When I was district attorney of Philadelphia, we had some 500 homicides a year. I would not permit any of my 160 assistants to ask for the death penalty without my personal review. We asked for the death penalty in a very limited number of cases--four, or five, or six a year--really heinous and outrageous cases where it was the conclusion that only the death penalty would suffice. There has recently been a commission in Illinois which has been very critical of the application of the death penalty. The Governor of Illinois has declared a moratorium on the death penalty. And with the growing number of DNA cases which are arising, it is my view, that unless some action is taken to see to it that there are not executions of people whose innocence might be established through DNA evidence, that we will soon lose the death penalty. So it is a matter of protecting society's interest to maintain the death penalty that this legislation is being introduced, and, at the same time, with equal force, it is in order to provide fundamental fairness to defendants. Where DNA evidence is available, it ought to be examined. And we know it has the capacity, in many, many cases, to rule out the defendant. The science of DNA has progressed to the point where tangible evidence may specifically exclude a defendant. We have seen many cases where incarcerated people, including those awaiting the death penalty, have been released when the DNA evidence has established their innocence. There is legislation pending, but none reaches what I consider to be the fundamental question--I ask unanimous consent that I may proceed for an additional 3 minutes.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to introduce legislation to prohibit human cloning while preserving important areas of medical research, including stem cell research. I introduce this legislation on behalf of Senator Feinstein, Senator Kennedy, Senator Hatch, Senator Harkin, Senator Boxer, Senator Durbin, Senator Thurmond, Senator Miller, Senator Corzine, Senator Mikulski, Senator Clinton--and I do believe there will be other cosponsors joining that parade. Stem cells offer enormous hope for solving some of the most tragic illnesses confronting Americans--and for that matter people worldwide. In November of 1998, stem cells burst on the scene, holding this unique promise. Stem cells are extracted from embryos, and they may be used to replace defective cells in the human body. For example, enormous progress has been made on conquering Alzheimer's, conquering Parkinson's, on cancer, on heart ailments, and many other illnesses. A controversy arose because they came from embryos and embryos can produce life. Embryos are characteristically or customarily created for in vitro fertilization. Normally, about a dozen are created, maybe three or four are used, and the rest are discarded. It is from those discarded embryos that the stem cells are extracted. If all of those embryos could turn into human life, that would obviously be the very best use of those embryos. But there are some 100,000 in storage, and it is a practical impossibility for those embryos to be used for human life. In last year's appropriation bill coming out of the subcommittee of Labor, Health, Human Services and Education, where I am the ranking member, $1 million was appropriated to promote adoption of embryos. We are now working on legislation to give a tax credit for people who use the embryos for adoption. But since there are so many of these embryos which are not going to be utilized for adoption purposes, and the alternatives are either to discard them or to use them, then it makes good sense to use them to save lives. There is general repugnance against reproductive cloning. The legislation which we are introducing now would ban reproductive cloning and impose very substantial criminal penalties. Unfortunately, the scientists use a term, ``therapeutic cloning,'' which has led to confusion and has given a process known as nuclear transplantation a bad name. Essentially what nuclear transplantation is, it is to take DNA from a cell of a person who has Parkinson's and then insert that in a egg of a woman with the DNA removed. Then the stem cells which are produced from that egg are compatible with the donor's DNA. For example, those stem cells could be used to combat the Parkinson's which that individual has. The legislation contains very substantial protections to be sure that in the course of this nuclear transplantation none of this will be implanted in the womb of a woman or otherwise used to produce human cloning, reproductive cloning--cloning of a person. There are very tough criminal penalties attached. To Reiterate, over the past 4 years, the Labor, Health and Human Services and Education Appropriations Subcommittee has held 14 hearings at which scientists, patients, and ethicists have described the promise of stem cell research and nuclear transplantation to produce stem cells. A problem arises from the fact that scientists misnamed the promising technique of nuclear transplantation to produce stem cells. In calling this technique therapeutic cloning, scientists used a word, which for many Americans, conjures up grotesque images from bad science fiction movies: mad scientists, bubbling test tubes, and row after row of zombie-like creatures. Most Americans equate the word cloning with human reproductive cloning, where a carbon copy of a person is created in a process that also gave us Dolly the sheep and CC the cat. By this definition so- called therapeutic cloning is not really cloning at all. It is a process that creates embryonic stem cells genetically matched to a patient for the purpose of repairing unhealthy or injured tissue. For example, if a patient has heart damage, the genetic material from one of his cells could be transplanted into a human egg cell that has had its genetic material removed. After a time, stem cells are produced, coaxed into becoming heart cells, and transplanted into the damaged heart to restore function. Because the cells are an exact match of the patient's cells, no rejection would occur. Scientists have suggested that this procedure is better termed nuclear transplantation to produce stem cells. Embryonic stem cells can be coaxed into becoming any of the more than 200 types of cells in the human body, and therefore may be used to treat a vast array of diseases and disorders including heart disease, Parkinson's disease, diabetes, paralysis, Alzheimer's disease, and severe burns. Scientists at the National Academy of Sciences estimate that the combination of nuclear transplantation and stem cell therapies could spare the lives of 170,000 Americans each year. History shows us the devastating effects of tying the hands of scientists for ideological reasons. Galileo was imprisoned for his support of Copernicus' theory that the planets revolve around the sun. Pope Boniface VIII banned the practice of cadaver dissection in the 1200's. This set back the understanding of human anatomy and the practice of medicine for over 300 years. In the 1800's, the Scottish Calvinist Church objected to the use of anesthesia during labor because the ``pain of childbirth was God's will.'' Let us not repeat the mistakes of history. Recently 40 American Nobel laureates stated that: legislation [that would ban all cloning] would foreclose the legitimate use of nuclear transplantation . . . and impede progress against some of the most debilitating diseases known to man. Former Presidents Ford and Carter have written to President Bush stating their opposition to reproductive cloning and their strong support for nuclear transplantation to produce stem cells. I believe that when the facts are weighed there will be strong bipartisan support for such a policy. As I said, today, I, along with Senators Feinstein, Kennedy, Hatch, Harkin, Boxer, Durbin, Miller, Corzine, Mikulski, Clinton, and Thurmond am introducing a bill which would prohibit human cloning while preserving important areas of medical research, including nuclear transplantation to produce stem cells. Let me review the key provisions of the bill. It would prohibit human reproductive cloning by imposing a criminal penalty of up to 10 years in prison and a civil penalty of at least one million dollars. It would allow medical research into nuclear transplantation to produce stem cells, also known as therapeutic cloning, thereby allowing promising research towards cures for a vast array of diseases to go forward. It would apply strict Federal ethical requirements to all nuclear transplantation research. These include informed consent, an ethics board review, and protections for the safety and privacy of research participants. The legislation imposes a $250,000 civil penalty for violation of the ethics requirements. I believe that the Senate should act quickly to ban human cloning. In the process, we must preserve important areas of medical research, such as nuclear transplantation to create stem cells. The bill that I and my colleagues have introduced will do that in an ethical and moral way. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to introduce legislation to prohibit human cloning while preserving important areas of medical research, including stem cell research. I introduce this legislation on behalf of Senator Feinstein, Senator Kennedy, Senator Hatch, Senator Harkin, Senator Boxer, Senator Durbin, Senator Thurmond, Senator Miller, Senator Corzine, Senator Mikulski, Senator Clinton--and I do believe there will be other cosponsors joining that parade. Stem cells offer enormous hope for solving some of the most tragic illnesses confronting Americans--and for that matter people worldwide. In November of 1998, stem cells burst on the scene, holding this unique promise. Stem cells are extracted from embryos, and they may be used to replace defective cells in the human body. For example, enormous progress has been made on conquering Alzheimer's, conquering Parkinson's, on cancer, on heart ailments, and many other illnesses. A controversy arose because they came from embryos and embryos can produce life. Embryos are characteristically or customarily created for in vitro fertilization. Normally, about a dozen are created, maybe three or four are used, and the rest are discarded. It is from those discarded embryos that the stem cells are extracted. If all of those embryos could turn into human life, that would obviously be the very best use of those embryos. But there are some 100,000 in storage, and it is a practical impossibility for those embryos to be used for human life. In last year's appropriation bill coming out of the subcommittee of Labor, Health, Human Services and Education, where I am the ranking member, $1 million was appropriated to promote adoption of embryos. We are now working on legislation to give a tax credit for people who use the embryos for adoption. But since there are so many of these embryos which are not going to be utilized for adoption purposes, and the alternatives are either to discard them or to use them, then it makes good sense to use them to save lives. There is general repugnance against reproductive cloning. The legislation which we are introducing now would ban reproductive cloning and impose very substantial criminal penalties. Unfortunately, the scientists use a term, ``therapeutic cloning,'' which has led to confusion and has given a process known as nuclear transplantation a bad name. Essentially what nuclear transplantation is, it is to take DNA from a cell of a person who has Parkinson's and then insert that in a egg of a woman with the DNA removed. Then the stem cells which are produced from that egg are compatible with the donor's DNA. For example, those stem cells could be used to combat the Parkinson's which that individual has. The legislation contains very substantial protections to be sure that in the course of this nuclear transplantation none of this will be implanted in the womb of a woman or otherwise used to produce human cloning, reproductive cloning--cloning of a person. There are very tough criminal penalties attached. To Reiterate, over the past 4 years, the Labor, Health and Human Services and Education Appropriations Subcommittee has held 14 hearings at which scientists, patients, and ethicists have described the promise of stem cell research and nuclear transplantation to produce stem cells. A problem arises from the fact that scientists misnamed the promising technique of nuclear transplantation to produce stem cells. In calling this technique therapeutic cloning, scientists used a word, which for many Americans, conjures up grotesque images from bad science fiction movies: mad scientists, bubbling test tubes, and row after row of zombie-like creatures. Most Americans equate the word cloning with human reproductive cloning, where a carbon copy of a person is created in a process that also gave us Dolly the sheep and CC the cat. By this definition so- called therapeutic cloning is not really cloning at all. It is a process that creates embryonic stem cells genetically matched to a patient for the purpose of repairing unhealthy or injured tissue. For example, if a patient has heart damage, the genetic material from one of his cells could be transplanted into a human egg cell that has had its genetic material removed. After a time, stem cells are produced, coaxed into becoming heart cells, and transplanted into the damaged heart to restore function. Because the cells are an exact match of the patient's cells, no rejection would occur. Scientists have suggested that this procedure is better termed nuclear transplantation to produce stem cells. Embryonic stem cells can be coaxed into becoming any of the more than 200 types of cells in the human body, and therefore may be used to treat a vast array of diseases and disorders including heart disease, Parkinson's disease, diabetes, paralysis, Alzheimer's disease, and severe burns. Scientists at the National Academy of Sciences estimate that the combination of nuclear transplantation and stem cell therapies could spare the lives of 170,000 Americans each year. History shows us the devastating effects of tying the hands of scientists for ideological reasons. Galileo was imprisoned for his support of Copernicus' theory that the planets revolve around the sun. Pope Boniface VIII banned the practice of cadaver dissection in the 1200's. This set back the understanding of human anatomy and the practice of medicine for over 300 years. In the 1800's, the Scottish Calvinist Church objected to the use of anesthesia during labor because the ``pain of childbirth was God's will.'' Let us not repeat the mistakes of history. Recently 40 American Nobel laureates stated that: legislation [that would ban all cloning] would foreclose the legitimate use of nuclear transplantation . . . and impede progress against some of the most debilitating diseases known to man. Former Presidents Ford and Carter have written to President Bush stating their opposition to reproductive cloning and their strong support for nuclear transplantation to produce stem cells. I believe that when the facts are weighed there will be strong bipartisan support for such a policy. As I said, today, I, along with Senators Feinstein, Kennedy, Hatch, Harkin, Boxer, Durbin, Miller, Corzine, Mikulski, Clinton, and Thurmond am introducing a bill which would prohibit human cloning while preserving important areas of medical research, including nuclear transplantation to produce stem cells. Let me review the key provisions of the bill. It would prohibit human reproductive cloning by imposing a criminal penalty of up to 10 years in prison and a civil penalty of at least one million dollars. It would allow medical research into nuclear transplantation to produce stem cells, also known as therapeutic cloning, thereby allowing promising research towards cures for a vast array of diseases to go forward. It would apply strict Federal ethical requirements to all nuclear transplantation research. These include informed consent, an ethics board review, and protections for the safety and privacy of research participants. The legislation imposes a $250,000 civil penalty for violation of the ethics requirements. I believe that the Senate should act quickly to ban human cloning. In the process, we must preserve important areas of medical research, such as nuclear transplantation to create stem cells. The bill that I and my colleagues have introduced will do that in an ethical and moral way. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Madam President, I suggest the absence of a quorum.

Mr. SPECTER. Madam President, I ask unanimous consent the order for the quorum call be dispensed with.

Mr. SPECTER

Mr. SPECTER. Madam President, I thank the Chair and I thank my colleague from Vermont for awaiting my arrival. We have just been at a news conference on the introduction of legislation on nuclear transplants. There were many questions beyond what we had anticipated. I did want to have an opportunity to appear briefly in support of these two nominees who are from my state.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. I would like to echo the comments of my partner on the Appropriations Committee. Over the years, Senator Harkin and I have funded the Centers for Disease Control and Prevention and we've been able to watch its growth under the able leadership of Dr. Jeffrey Koplan. Let me list for you just a few of his many successes while working at CDC and as its Director. Perhaps most important was Dr. Koplan's ambitious and much-needed campaign to upgrade CDC's buildings and facilities, enabling the agency to better protect the nation's health and safety. He invited Senator Harkin and I to visit the CDC labs in Atlanta, where we found our nation's laboratories in a deplorable condition. We've been happy to support his effort to upgrade these facilities and, if any of you had the same opportunity to visit the CDC labs, I'm sure you'll agree that this effort was long overdue and will serve this country well for years to come. Dr. Koplan had many other accomplishments during his tenure at CDC including the establishment of a system that will take the pulse of our nation's health through a quick computerized disease reporting system to which local health departments will be linked; focusing the nation's attention on the obesity and diabetes epidemics threatening the health of millions of Americans; and summarizing patterns of tobacco use among women and called for stronger national and local efforts to implement proven solutions to reduce and prevent tobacco use among women and girls. Over the past two years, the CDC has aided State, local and international health authorities over 200 times, to investigate outbreaks of disease, including anthrax, West Nile Virus, Ebola, tuberculosis, sexually transmitted diseases, lead poisoning, birth defect clusters, homicide-suicide clusters, nutritional deficiencies, and flood-related illnesses. The CDC, along with NIH and FDA, initiated a new plan to prevent bovine spongioform encephalopathy, also known as ``mad cow'' disease, from affecting the U.S. food supply. As a result, the U.S. has one of the safest food supplies in the world. Last but certainly not least, Dr. Koplan led our nation's public health authorities in becoming better prepared to respond quickly and effectively to a bioterrorist attack on this country. And, indeed, he was our country's public health leader during the first such attack, working around the clock to prevent people exposed to anthrax from developing the disease. Because this was a new reality for our nation, Dr. Koplan placed special emphasis on learning every lesson possible from the experience so that we are now better prepared should we face another attack. I commend him for all that he has done to protect the health and well-being of the American people. I wish him well.

Mr. SPECTER

Mr. SPECTER. Mr. President, in my 30 seconds, I emphasize the point that this amendment is a significant step toward freeing the United States from dependence on OPEC oil. The front page of today's New York Times contains a statement by the Crown Prince of Saudi Arabia that, if necessary, to blackmail the United States to change our policy toward Israel, Saudi Arabia is prepared to move to the right of bin Laden. Saudi Arabia gave us bin Laden, and 15 of the 19 terrorists from 9-11. Vote for this amendment.

Mr. SPECTER

Mr. SPECTER. We are heading for a cataclysm. We are headed for a cataclysmic, destructive process. When the oil industry in Iran was nationalized in the early 1950s and the Anglo-Iranian Oil Company was evicted by an act of the Iranian parliament, Great Britain decided against the use of force and submitted the dispute to the International Court, which decided it had no jurisdiction. But if we are starved from oil, we should attempt to figure out some way to denationalize what the OPEC countries have done, in taking the property of the seven sisters, the oil companies--BP and others--without compensation, or without adequate compensation. But the demands and the blackmail and the extortion that is contained on the front page of the New York Times today concerning what OPEC has in mind for us should drive the U.S. toward independence from OPEC oil, not only as a matter of self-respect, but as a matter of national defense and continuing economic development in this country. I thank the Chair and yield the floor.

Mr. SPECTER. Madam President, I think if every one of our colleagues read the story on the front page of the New York Times today, there would be no doubt about the insistence of this body to reduce our dependence on OPEC oil. To have Crown Prince Abdullah of Saudi Arabia release through a spokesman what he intends to say to the President of the United States--that Saudi Arabia will use oil as an oil weapon, as Saddam Hussein has done is outrageous. The spokesman is quoted as saying that Saudi Arabia is prepared to go to the right of bin Laden, and that Saudi Arabia is prepared to fly to Baghdad and embrace Saddam Hussein like a brother. I ask unanimous consent that the New York Times article ``Saudi To Warn Bush of Rupture Over Israel Policy'' be printed in the Record. There being no objection the article was ordered to be printed in the Record, as follows: [From The New York Times, Apr. 25, 2002] Saudi To Warn Bush of Rupture Over Israel Policy (By Patrick E. Tyler) Houston, Apr. 24.--Crown Prince Abdullah of Saudi Arabia is expected to tell President Bush in stark terms at their meeting on Thursday that the strategic relationship between their two countries will be threatened if Mr. Bush does not moderate his support for Israel's military policies, a person familiar with the Saudi's thinking said today. In a bleak assessment, he said there was talk within the Saudi royal family and in Arab capitals of using the ``oil weapon'' against the United States, and demanding that the United States leave strategic military bases in the region. Such measures, he said, would be a ``strategic debacle for the United States.'' He also warned of a general drift by Arab leaders toward the radical politics that have been building in the Arab street. The Saudi message contained undeniable brinkmanship intended to put pressure on Mr. Bush to take a much larger political gamble by imposing a peace settlement on Israeli and Palestinians. But the Saudi delegation also brought a strong sense of the alarm and crisis that have been heard in Arab capitals. ``It is a mistake to think that our people will not do what is necessary to survive,'' the person close to the crown prince said, ``and if that means we move to the right of bin Laden, so be it; to the left of Qaddafi, so be it; or fly to Baghdad and embrace Saddam like a brother, so be it. It's damned lonely in our part of the world, and we can no longer defend our relationship to our people.'' Whatever the possibility of bluster, it is also clear that Abdullah represents not just Saudi Arabia but also the broader voice of the Arab world, symbolized by the peace plan he submitted and that was endorsed at an Arab summit meeting in March. Those familiar with the prince's ``talking points'' said he would deliver a blunt message that Mr. Bush is perceived to have endorsed--despite his protests to the contrary--Prime Minister Ariel Sharon's military incursion into the West Bank. Abdullah believes Mr. Bush has lost credibility by failing to follow through on his demand two weeks ago that Mr. Sharon withdraw Israeli troops from the West Bank and end the sieges of Yasir's compound in Ramallah and of the Church of the Nativity in Bethlehem. If those events occur and Mr. Bush makes a commitment ``to go for peace'' by convening an international conference, as his father did after the Persian Gulf war, to press for a final settlement and a Palestinian state, the Saudi view would change dramatically. But those close to the Saudi delegation said there was no expectation that Mr. Bush is prepared to apply the pressure necessary to force such an outcome. ``The perception in the Middle East, from the far left to the far right, is that America is totally sponsoring Sharon--not Israel's policies but Sharon's policies--and anyone who tells you less is insulting your intelligence,'' the person familiar with Abdullah's thinking said. Western analysts see the prince as a blunt Bedouin leader whose initiative is regarded by many Arabs as a gesture worthy of the late Egyptian leader Anwar el-Sadat, who flew to Jerusalem in 1973 to sue for peace with Menachem Begin. Abdullah's offer, now the Arab world's offer, calls for recognition of Israel and ``normal relations'' in return for a Palestinian state on lands Israel occupied in 1967. The Saudi assessment was apparently being conveyed through several private channels. On Tuesday President Bush's father had lunch with the Saudi foreign minister, Saud al-Faisal, and the kingdom's longtime ambassador to Washington, Prince Bandar bin Sultan. Their specific message could not be learned, but in the familial setting, where Barbara Bush was also the hostess for Princess Haifa, Prince Bandar's wife, the strong strategic and personal ties of the Persian Gulf war that characterized Saudi-American relations a decade ago was a message in itself. Abdullah, in a luncheon today with Vice President Dick Cheney, was to convey the seriousness with which he regards the Thursday meeting with President Bush as a ``last chance'' for constructive relations with the Arab world. Secretary of Defense Donald H. Rumsfeld and Gen. Richard B. Myers, chairman of the joint chiefs of staff, also flew to Houston to join in last-minute discussions before the summit meeting. A senior official in Washington said Mr. Rumsfeld and General Myers were dispatched to brief the prince personally on the American accomplishments in Afghanistan and in the broader war on terrorism. ``The idea was, if he thought we were strong in Desert Storm, we're 10 times as strong today,'' one official said. ``This was to give him some idea what Afghanistan demonstrated about our capabilities.'' United States military commanders in the Persian Gulf region have been building up command centers and equipment depots in Qatar and Kuwait in recent months in anticipation of a possible breach with Riyadh. Saudi officials assert that American presidents since Richard M. Nixon have been willing to speak more forcefully to Israeli leaders than the current president when American interests were at stake. ``If Bush freed Arafat and cleared Bethlehem, it would be a big victory, show a stiffening of spine,'' the person close to Abdullah said. ``But incremental steps are no longer valid in these circumstances,'' meaning that Mr. Bush would have to follow up with a major push to fulfill the longstanding expectation of the Palestinians for statehood. The mood in the Saudi camp was that of gloom and anxiety in private even as Saudi and American officials went ahead with preparations for a warm public encounter with the Bush family. On Friday, after his meeting with President Bush at his home in Crawford, Abdullah is to take a long train ride to College Station, the central Texas town where the former President Bush will be host at his presidential library. On Saturday, Saudi's Arabia's state oil company is gathering the luminaries of the international energy industry to dine with Abdullah and his party. But the person close to the prince said that if the summit talks went badly, Abdullah might not complete his stay in Texas. Instead, he might return directly to Riyadh and call for a summit meeting of the Organization of the Islamic Conference, to report to its 44 leaders, who represent 1.2 billion Muslims. ``He wants to say, `I looked the president of the U.S. in the eye and have to report that I failed,'' this person said. His message to the Arabs will be, ``Take the responsibility in your own hands, my conscience is clear, before history, God, religion, country and friends.'' The person close to Abdullah pointed out that Saudi Arabia's recent assurances that it would use its surplus oil- producing capacity to blunt the effects of Saddam Hussein's 30-day suspension of Iraqi oil exports could quickly change. That Saudi pledge ``was based on a certain set of assumptions, but if you change the assumptions, all bets are off,'' he said. ``We would no longer say what Saddam said was an empty threat, because there come desperate times when you give the unthinkable a chance.'' Abdullah is reported to be bitter over the White House's assertion that the president is taking a balanced approach to the Israeli-Palestinian conflict, and he wants to evaluate in person whether Mr. Bush understands how his actions are being perceived in the Arab world. ``This is not a mistake or a policy gaffe,'' the person close to Abdullah said, referring to Mr. Bush's approach. ``He made a strategic, conscious decision to go with Sharon, so your national interest is no longer our national interest; now we don't have joint national interests. What it means is that you go your way and we will go ours, economically, militarily and politically--and the antiterror coalition would collapse in the process.''