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Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

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other than his seatmate. An effort to try and keep some sort of san-
ity in the bus as it was moving along.

Another inmate sued us because his sandwich happened to be
less than perfect and his cookies were crumbled.

Another inmate sued because he got crunchy-style peanut butter
in his peanut butter and jelly sandwich instead of regular.

We can laugh about those and ultimately win those, but the fact
of the matter is I have to spend hours and hours and taxpayers'
dollars time and again to get to that point. That is why I think we
need those provisions that are in H.R. 3 addressing the growing
problem of abusive lawsuits.

We need to have those things that will allow the Federal judicial
system to deal with things immediately. We need to remove this
idea that the Federal judicial system is a small claims court for in-
mate grievances.

I have talked to many of the Federal judges, and they will tell
you the very same thing. They think we should allow deference to
administrative procedures at the State level to take care of many
of these problems.

We ought to require at least a partial filing fee. There is virtually
no filing fee. You or I or any of our constituents have to pay a filing
fee to get to court. In most cases, prisoners don't even have to do

We need some penalty when, in fact, they are found to be vexa-
tious litigants, in addition to an injunctive relief, which is allowed.
We ought to perhaps strengthen that to make it required by judges,
upon finding that there is a vexatious litigant, we ought to have
some penalty of a final nature in those respects.

Again, not denjdng the opportunity for suit based on actual
claims of injury, there ought to be a requirement that there be
some actual injury; that is not a requirement today. And if we don't
understand what is happening here, you ought to just understand
what some of the prisoners tell us.

We have prisoners that have filed tens, if not hundreds, of law-
suits and as soon as one is dismissed, they file another one; and
they laugh at us because it is their way of tweaking the system at
the expense of taxpayers.

It just seems to me that the language in title VII of H.R. 3, re-
quiring exhaustion of administrative remedies strengthens the
hand of the court to dismiss a case if the action fails to state a
claim under which relief can be granted, modifies the procedures
for grievance procedures, and provides for the accounting of pris-


oner assets. What they do is draw down their account so that they
have zero funds when the court looks at it.

We ought to require the court to look at the previous 6 months
or year of activity in the prisoner's account to see what that pris-
oner is doing. They are laughing at us out here, and it is costing
taxpayers tremendous amounts of money and it is diverting our at-
tention from dealing with the truly serious prisoner litigation cases
that are out there.

Under existing statutory language found in 28 United States
Code, section 21997(e), the district court is given discretion to stay
prisoner actions under 42 United States Code, section 1983, in
order to require the exhaustion of certified administrative rem-
edies. Requirement of payment or even a small filing fee would
force inmates to consider the relative value of filing a complaint.
To a prisoner $5 means a lot; you may think it doesn't, we happen
to think it does. In some cases, where they have required this on
the State level, they have found a drop in their vexatious and un-
substantiated lawsuits.

It is my belief also that the Federal law should allow for peremp-
tory challenges of Federal judges or magistrate judges. The same
judges and the same magistrates seem to turn up with the same
prisoner inmate lawsuits. And if you think people are frustrated
about the notion of lifetime tenure of Federal judges, you should
see the frustration of the sort of limbo status that you have for

It is so frustrating to go to a Federal judge and say. Your Honor,
we believe that these things ought to be considered now, so we can
get this thing knocked out; and are told by the judge, the mag-
istrate hasn't brought it to our attention. Right now, it isn't right
for our consideration. We are inundated by this.

This crime bill is an important bill. Last year's was an important
bill. Before I came up here, some other prosecutors asked me to
mention the piddling amount of money that goes to prosecutors
versus what was going on the COPS side of the house. Let me tell
you, $9 million of my budget is going to prisoner litigation, most
of it frivolous. You don't have to give me a dime if you will help
me reform prisoner inmate litigation of a frivolous nature.

You wouldn't have to give me a dime if you would reform Federal
habeas corpus. We have 400 people on death row in California
right now. I have 121 cases that have gone through the entire re-
view on direct appeal in the California system. We have only — and
now 121 in the Federal system, only four — only four at the appel-
late level. In the last year, only two Federal habeas cases, only two,
got out of district court and are now at the appellate level. Some-
thing is wrong, something is terribly wrong.

And so when we talk about these great crime bills and the money
to assist local jurisdictions and States, you are killing us by not re-
forming the laws, that only you can reform, that are going directly
to our capability of doing our job.

And I want to tell you I don't take it lightly. I don't take any joy
or any glee out of executions. I have had to do it twice now. I have
had to be responsible for telling the warden that he could go ahead
and put someone in the gas chamber. It is no fun. I don't like it.
I do it because I think it is the right thing to do. I do it because.


in fact, the law requires it. I do it because it is the constitutional
thing to do, but if you believe we enjoy it, you are dead wrong.

But if you believe I enjoy going to a grieving mother and telling
her in the 13th year that the Federal courts have the right to once
again stay execution because the Congress will not reform it, I
don't enjoy that one bit; and I am finished with shrugging my
shoulders when people ask me, what is wrong with the death pen-
alty? What is wrong with the death penalty is that Congress has
refused to enact meaningful reform legislation over the last decade.
Now is the time to do it.

Mr. McCOLLUM. Thank you very much, Mr. Lungren.

[The prepared statement of Mr. Lungren follows:]


Prepared Statement of Daniel E. Lungren, Attorney General, State of


If I might, I would like first of all to thank you, Mr. Chairman,

for your invitation to return to this place where I was proud to

serve on the Judiciary Committee while a member of the Congress.

It is of particular significance to me that I will have the

opportunity to work with you and the members of this subcommittee

to complete the job we began when I brought the Comprehensive

Crime Control Act^' to the house floor in 1984. This 'core bill"

contained among other things "truth in sentencing" provisions

which are now being emulated in Virginia and other states. In

this regard, I would like to commend you, Mr. Chainr.an, for your

leadership in attempting to construct incentives on the federal

level to encourage the states to take such action.

However, in addition to the "core bill, • I was privileged to
sponsor legislation on behalf of the Reagan administration which
would have created a "good faith" exception to the exclusionary
rule and reformed habeas corpus procedures, it is with respect
to these areas of reform that you now curn your attention along
with the other provisions of H.R. 3 In a very real sense, this
subcommittee has before it the opportunity to bring to completion
the good work that we began in 1984.

P.L. 98-473 (1984)


Lungren Testimony
January 19, 1995
Page 2

We have before us a historic opportunity to enact meaningful

reform of the criminal justice system. The American people have

spoken in a resounding manner, and we have a solemn

responsibility to respond to their concerns. Certainly one

important aspect of that message is that "Washington may not

always know beat" and that the federal governirient should at a

minimum not undermine the ability of states and localities to

perform their essential functions. This has particular relevance

with respect to the operation of state criminal justices systems.

As the Attorney General of California I would like to focus my
comments on the federal habeas interference with effective
criminal sanctions in the states. I would like to emphasize at
the outset that my comments are not meant to be a blanket
criticism of the men and women who serve on our federal
judiciary. Rather, the source of our difficulty rests with the
inadequacy of existing statutory law. This defective nature of
the law is particularly pronounced with respect to capital cases
where state prisoners have no incentive to resolve their legal
claims in a timely fashion.

Because federal habeas corpus review of state criminal judgments
is a statutory remedy, only Congress can fully reform the system.

In this regard reform of habeas corpus procedures does not in
any way implicate the "Great Writ" in the U.S. Constitution. In


Lungren Testimony
January 19, 1995
Page 3

fact a statutory right to federal habeas corpus relief for state

prisoners did not come into existence until the enactment of the

H&beas Corpus Act of 1867.

It is therefore our task to address the need for reform. In this

regard I would like to share with you some of my thoughts

concerning what such reform should look like and to specifically
address the elements of H.R. 3.

Gpnerai Hrthea? Reform

Any effort undertaken by the Congress would be incomplete unless
it addresses general habeas corpus reform. The problems of delay
in non-capital cases are no less a problem than that faced with
respect to capital litigation.

One essential ingredient of general habeas reform should be the
inposition of a statute of limitations on the filing of state
prisoner petitions in federal court. The time limitation imposed
in Sec. 101 Of the bill would certainly improve existing law
which contains no such requirement.

In this regard the one year time limit in the bill would run from
the time at which state remedies are exhausted or later if cause
is shown. The general rule, adopted by the United States Supreme


Lungren Testimony
January 19, 1995
Page 4

Court in Brown v. Allen ' is that remedies are considered

exhausted with respect to a claim if it has been raised before

the highest court of a state either on direct or on collateral

review. It should be mentioned that it was our intention when

this provision was first introduced in 1982 that it should be

applied on a claim by claim basis. In other words the timeliness

of claim in a habeas petition would not excuse the failure to

raise claim on a timely basis.

Although Section 101 is sound, one suggested modification to
improve it would be to "begin the clock" from the finality of
judgment on direct appeal with perhaps a tolling period for state
collateral review.

Section 102 of the bill codifies the prevailing standard in the
law concerning certificates of probable cause for appeal in
habeas corpus proceedings. Congress adopted the certificate of
probable cause requirement in 1908 to curb the practice of
frivolous habeas appeals for delay purposes. The United States
Supreme Court in Barefoot v Estelle~' has also noted that a
certificate of probable cause requires a proper showing.
Specifically, the certificate should not issue unless the

2 . 344 U.S. 443, at 448-449 n.3 (1954)

3 . 463 U.S. 880, at 892 n. 3 (1983).


Lungren Testimony
January 19, 1995
Page 5

petitioner makes "a substantial showing of the denial of [a]

federal right." I might add that our understanding of the

provision is that the granting of a certificate of probable cause

is to be done on an issue by issue basis rather than on the case

as a whole.

The bill would restate the current langijage of 28 U.S.C. 2254 ib)
regarding the basic requirements concerning the exhaustion of
state remedies. Section 104 then adds language to the statute
providing that exhaustion is not required for the denial of
relief by the federal court. This is a sensible approach that
will result in greater judicial efficiency and reduced delay.
There is singly no reason for the federal courts to encourage a
petitioner to take frivolous claims back to the state courts in
order to make the round trip back into the federal system.

I wholeheartedly endorse these general reform provisions and am
somewhat pleased to mention that they are similar to the habeas
reform legislation I sponsored while a member of the house
judiciary committee.

in fact, the Senate has recognized the need for these
improvements in the law on two previous occasions. In 1984 an
overwhelming bipartisan majority passed identical habeas language
and did so again in 199.1 as part of a larger omnibus reform bill.


Lungren Testimony
January 19, 1995
Page 6

An Ef fective Death Penalty

The abuse of federal habeas has had a profound effect on the
enforcement of the death penalty in the states. As the Powell
Committee report noted:

The relatively small nun±ier of executions as well as the
delay in cases where an execution has occurred makes clear
that the present system of collateral review operates to
frustrate the law of 37 states,**"'

This observation is certainly confirmed by our experience in
California. As members of this subcommittee are aware not a
single execution took place in California between 1965 and 1992.
California's death row population has now swelled to 400 inmates
and only two executions have occurred since 1992.

Since I appeared before this subcommittee in 1991 the number of
capital cases pending on federal habeas corpus has more than
doubled. As of today, the California Supreme Court has affirmed
162 capital judgments. There are now 121 cases before the U.S.

4 . Judicial Conference of the United States, Report and
Proposal of the Ad Hoc Committee on Federal Habeas Corpus in
Capital Cases, at 3 (Aug. 23, 1989) .


Lungren Testimony
January 19, 1995
Page 7

DistricL Court on habeas corpus review, and 4 cases pending in

the 9th Circuit.

It is perhaps most disturbing that in 1994 there were only 2

district court decisions which fully disposed of a capital habeas

petition. Although there were several evidentiary hearings in

other capital cases last year, there were no other decisions.

I might also note that as dramatic as these figures are they do
not reflect the full costs of the present system. The
credibility of the criminal justice system itself is undermined
by a maze of procedures which indefinitely prolong the certainty
of punishment. As the United States Supreme Court explained in
KuhlmeLnn v. Wilson:

Availability o£ unlimited federal collateral review to
guilty defendants frustrates the state's legitimate
interest in deterring crime, since the deterrent force of
penal laws is diminished to the extent that persons
contemplating criminal activity believe there is a
possibility that they will escape punishment through
repetitive collateral attacks.*"'

5 . 477 U.S. 437, at 453 (1986).


Lungren Testimony-
January IQ, 1995
Page 8

Most, significantly, those who have been victimized by crime have

a right to expect timely justice. In their case, "justice

delayed" is truly "justice denied." Tragically, they find

themselves victimized both by the perpetrator of the crime and

then again by the system itself. Endless judicial wrangling

prolongs their personal agony and makes closure of their grief

difficult if not impossible.

The proposed chapter 154 of H.R. 3 Embodies capital habeas
provisions which are substantially similar to the recommendations
of the Powell Committee in 1989. It is also similar to
legislation which passed the House of Representatives the
following year.

The essential framework of the proposal involves an "opt in"
feature to encourage states to adopt the appointment of counsel
provisions for state collateral review in order to obtain the
benefits of finality provided by the legislation.

In this regard it is important to note that unlike the original
Powell Committee proposal H.R. 3 contains a mechanism to
accommodate unitary review states like California where appellate
courts can consider concurrently the direct appeal and post-
conviction review.


Lungren Testimony
January 19, 1995
Page 9

It is more likely that individual states will "opt in" to a

system like that envisioned in H.R. 3 which allows the states

themselves to determine competent counsel standards. We are in

agreement with former Justice Powell that "it is more consistent

with the federal-state balance to give the states wide latitude

to establish a mechanism' for competency of counsel. States such

as California can promulgate effective standards for counsel.

However, it might be beneficial for the legislation to clearly

indicate that the counsel mechanism will not become an

independent issue to be litigated in each capital case.

Other key features of the proposed Chapter 154 capital sentencing
provisions include:

o Section 2257 provides limits on successive petitions in the
absence of a showing of "cause" (some external objective factor
which precluded the bringing of the claim previously) .
Importantly, the legislation would require that the facts
underlying the claim establish that no reasonable fact finder
would have found the prisoner guilty of the underlying offense.
This provision substantially enforces the 'one bite at the apple"

o Stays of execution with respect to successive petitions would
have to be determined by the district judge or appellate panel


Lungren Testimony
January 19, 1995
Page 10

which adjudicated the original habeas petition. A majority of

the court of appeals panel would have to detetTnine that the

petition did not constitute an abuse of the writ. Had this

language been in effect, the infair.ous Robert Alton Harris case in

my stats would not have lasted nearly 13 years and involved

numerous rounds of litigation.

o Section 2258 provides for a reasonable statute of limitations
which will discourage delay through the imposition of n 180 day
time limit, subject to an additional 60 day extension only for
good cause. There are toiling provisions during state collateral
review and at other points of the litigation process. The tiir.e
limit provisions nevertheless are a useful device to promote the
public interest in finality.

o Section 2261 would establish reasonable time limits within
which the federal courts would have to reach a determination with
respect to habeas claims. This addresses another aspect of
possible delay and is therefore consistent with the overall
objectives of the legislation. The language also appears to be
drafted in a manner which provides us with a sufficient amount of
time to file our responsive pleadings.


Lungrcn Testimony
January 19. 1995
Page 11

o Chapter 154 would provide equal funding to the states which
already receive federal funds for capital resource centers. The
intent here is not to deny legal assistance to capital
peticioners but rather to create a level playing field for the
states .

Thus, H.R. 3 not only imposes a statute of limitations for the
filing of claims, but also applies strict lirr\itations on the
types of claims which can be brought in the latest stages of the
habeas process. The legislation properly limits review of
successive petitions to those concerning the prisoners underlying
guilt or innocence. It should be remembered that the essential
element of the Powell Committee recommendations was to reject
consideration of challenges to the sentencing phase of a capital
case on second or successive petitions. This is an integral
aspect of reform. As Judge Friendly argued over two decades ago:

a requirement that the prisoner come forward with a
colorable showing of innocence identifies those
habeas petitioners who are justified in again seeking
relief from their incarceration.*-'

6 . See Friendly, is innocence Irrelevant? Collateral Attack
on Criminal Judgments, 38 U. Chicago L. Rev. 142, at 146-148
(1970) .


Lungren Testimony
January 19, 1995
Page 12

Once again, the legislation before us is an important step toward

meaningful habeas corpus reform. Ultimately, however, the

success or failure of the legislation will be determined by the

number of states that "opt in" to the Chapter 154 procedures for

capital punishment. It is therefore essential that we work

together to produce a bill that will maximize participation of

the states.

Federal Court Standard of Review

An important policy question which should be considered by the
Congress involves the level of deference that will be accorded to
state judicial systems. In other words, what review should be
available on federal habeas corpus following the state trial,
appeal, and collateral proceedings, and certiorari review by the
United States Supreme Court?

It must be understood that one of the real costs of habeas corpus
review is lack of finality. Absent finality, the criminal law
loses much of its deterrent effect. As the court in Mcclesky v.
Zant noted, finality has particular importance in a federal

Reexamination of state convictions on federal habeas review
frustrate[s] . . .Both the state's sovereign power to punish
offenders and their good faith attenpt to honor constitu-


Lungren Testimony
January 19, 1995
Page 13

tionai rights. Our federal system recognizes the

independent, power of a state to articulate societal norms

through criminal law; but the power of a state to pass

laws means little if the state cannot enforce them.'"'

In McClesky the court recognized that what is at stake
in federal habeas proceeding is the enforcement of state criminal
laws within state forums. Moreover, in our system of governinent,
state courts are co-equal institutions with their federal
counterparts and have the same responsibility to uphold the U.S.
Constitution. To permit federal intrusion and independent
relitigation of matters properly and reasonably in state court is
to relegate state courts to mere fact finding panels whose
decisions are ultimately subject to resolution by the federal
judiciary. If I might once again borrow from Judge Friendly:

In the vast majority of cases we agree with the state
courts, after a large expenditure of judges' and lawyers
time. In the few where we disagree, I feel no assurance
that the federal determination is superior. When I am
confident that the issue has received real attention
and the state trial and appellate judges have been in
accord among themselves, I see no sufficient reason to

7 . 499 U.S. 467 at 491 (1991).


Lungren Testimony
January 19, 1995
Page 14

elevate my views over theirs in a close caseA'

Federal courts are not superior to state courts merely because
the habeas corpus statute affords them the last word in the
litigation chain. The states have an interest in limits on the
ability of federal courts to relitigate or explore new facts b^'
"willy nilly" ordering burdensome discovery and endless
evidentiary hearings.

The state courts should not be viewed as a judicial "lounge act"
for the main performance by the federal courts. Being from
California the question comes to mind whether Judge Malcom Lucas
became any less wise or any less committed to the U.S.
Constitution when he traded in his federal judicial robe in order
to put the one on he now wears as a Justice on the California
Supreme Court .

While the federal government may have an interest in the uniform
application of constitutional law, that objective is achieved
primarily through direct review to the U.S. Supreme Court and it
certainly does not require a review of every aspect of state
court decisions via the writ of habeas corpus.

Friendly, supra note 6 at 165 n. 125.


Lungren Testimony
January 19, 1995
Page 15

Inquiry by the federal courts should focus on the reasonableness

of state court decisions. This method of analysis is already

performed in the non-retroactivity context of Teeigue v Lane

where federal courts must resolve whether the legal holdings of

Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 12 of 51)