United States. Congress. House. Committee on the J.

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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requirements of their individual ttaee. Each state will nsad a de«rr*e of flexibility in designing tough irine
legislation to m«ec th«ir Indlvl^ai needs.



In siinmary, as Attorney General for the
Commonwealth of Virginia, I, overall,
wholeheartedly endorse the legislation that
is before this Siibcommittee which is designed
to assist and help the states to address one,
if not the most critical, issues that we
face. And I offer the resources of my Office
to assist the Subcommittee in developing any
further refinement of Title V or other
portions of the bill.



Mr. McCOLLUM. I just have a couple of quick questions I would
like to ask to each of you.

First of all, Mr. Lungren, you do favor the full and fair issue in
the habeas. You expressed that here today, and we obviously don't
have it in the bill. One of the criticisms of that concept has been
the reasonableness standard, and you addressed that a little bit in
your written testimony as far as the determination of the court is

In most of the writings that I have seen, that have suggested full
and fair provisions, that let the State law have more sway or def-
erence, the language has included two or three different provisions.
One of those provisions in the definition would say that a full and
fair presumption is put forward if — and could be rebutted, if you
will, by the court and adjudication on the claim if the judge or the
court determines that it is contrary to or involves an arbitrary or
unreasonable interpretation or application of clearly established
Federal law.

And those who criticize this say that as a result of that kind of
language, that even in situations where the Federal judge believes
that the State court incorrectly interpreted or applied Federal law,
he is going to be bound by the State court decision if he believes
a reasonable man could have come to that conclusion that the State
came to, even though he would not have come to that.

And those who argue against it say that is not right. In fact, they
argue sometimes that the language, as written, is going to mean
that Federal court panels that are reviewing these things are going
to conclude that anj^hing other than their own interpretation is
unreasonable; and perhaps that language is meaningless. So I hear
both sides of this.

Can you enlighten me in any way?

Mr. Lungren. I think we have come up with some language —
I do not have it before me, but it talks about the fact that you
would have to show that it is other than what would be considered
a reasonable interpretation. And that means you cannot substitute
your own judgment, but rather it is a reasonable interpretation of
the law in concert with constitutional decisions previously made by
the court. And the reason for that is this: Deference to the State
courts means deference to their capacity to make reasonable deci-
sions interpreting constitutional rights; that is. State judges take
an oath to uphold the Constitution of the United States as well as
the State for which they are a judge.

If that is so, merely because a Federal judge looks at it and,
Monday-morning quarterbacking, says I would not come to that
even though I can see that is reasonable, if you were to prevail on
that kind of analysis, what you are saying is that they are a full
substitute for the State system.

That was never the concept under the Constitution. That was
never the concept under the writ of habeas corpus statute passed
by this Congress in 1867. And frankly, it is the height of arrogance.

I mean, in one of the cases Chief Justice Rehnquist said, what
we do by abusing the writ of habeas corpus is that we more and
more go away from having the trial as the main event. Now, we
ought to understand what that means.


We believe under our system of justice that truth in our justice
system comes out as the result of an adversarial situation in which
both sides have a chance to convince a judge and jury, the
factfinders, of what the facts are. They have the opportunity right
there to see the witnesses, to view their demeanor, to understand
the kinds of questions that were asked and were not asked, to get
a sense of what it is — just as I think most of us would rather, in
encountering someone, to encounter someone in person rather than
encounter someone as told to us by somebody else in written form.

And the more we say that Federal courts are derogated to a posi-
tion in which they have complete substitute power, what we are
saying is that somehow the State courts are inferior. That is not
the sense of the Constitution, and it is not the sense of the way
we live our lives.

And I think that is why it is so important that whatever lan-
guage is adopted not be treated to say that, well, if a judge believes
that he or she would have found it differently — I do the very same
thing today in California. Under the California Constitution, I have
supervisory responsibility for all district attorneys. Under the Cali-
fornia Constitution, every DA is the chief prosecutor in his or her
county. So with those two obligations, a tension is obviously cre-

How do I deal with that? I do not go in and prosecute cases that
a DA did not prosecute because I would have done so. What I do
when someone comes to me and says, would you take another look
at it, we go in and we apply a standard of abuse of discretion; not
would I have taken this case and prosecuted on the same facts, but
was it a legitimate decision made by the DA in that community not
to prosecute the case? And if I find it was within his or her discre-
tion, I don't step in there. That is not a difficult thing to do, but
it requires discipline.

Mr. McCOLLUM. But whatever, we do share the common desire
to try to shorten this process, and if the State court deference will
do that, we ought to consider it. I appreciate you raising it.

Attorney General Gilmore, I understand that in Governor Allen's
Commission on Parole Abolition and Sentencing Reform that there
was some effort made for estimates on what truth in sentencing
really means in terms of what crimes would have been prevented
in the past, had the 85-percent rule been in place in your State.
Can you give us some enlightenment on that?

Mr. Gilmore. The commission went through those areas and
looked at crimes that had been previously committed by people
with a criminal record, and found that there were 4,300 identifiable
crimes for which repeat offenders were convicted. That was during
the period of 1986 through 1993, and this is just the tip of the ice-
berg. Who knows how many crimes were committed by these of-
fenders for which no convictions were obtained?

Mr. McCOLLUM. You can see how quickly 5 minutes can go in a
discussion of habeas corpus and truth in sentencing — all too quick-


Mr. Schumer.

Mr. Schumer. Thank you, Mr. Chairman. And, yes, my first
question is to my former colleague, Dan Lungren.


I agree with you that some of those who are morally opposed to
the death penalty look for every appeal because they want to avoid
it at all costs. As somebody who is not morally opposed to the death
penalty, who supports it in certain cases, I don't have any problem
with limiting appeals so that they don't become frivolous or drag
on forever and ever and ever. The battle ought to be fought on
whether you are for capital punishment or not, and once that is de-
cided, there ought to be fair and free appeal, but not something
that just goes on forever.

But it seems to me, having said that, and having said that I
could even support some of the limitation in terms of length of time
and number of appeals in this bill, it seems to me that — I agree
with you, you have said basically that the trial in the death penalty
case should be the main event, not a tryout for the road.

Doesn't it behoove us, then, to make sure that there is competent
counsel in capital cases? First, from a fairness point of view, obvi-
ously, if you are going to sanction the ultimate penalty, you want
to make sure that there is competent counsel; and second, if there
is not competent counsel, then there are many more roads for le-
gitimate appeal and those become blurred.

What is your view of that?

Mr. LUNGREN. Inadequacy of counsel is always grounds to be uti-
lized as a collateral attack both in the State courts and Federal
courts. We are not denying that. If you are saying that we ought
to have a federally mandated standard, I would disagree with that
strongly. If you are saying that we should follow the Powell Com-
mission to establish an opt-in provision to encourage the States to
adopt a level of standards that would meet whatever overall cri-
teria might be created, I could understand that. But I would ask
you to give general discretion in that area. We in California think
we do a pretty good job. We take it very, very seriously.

Mr. SCHUMER. What about States that don't?

Mr. LuNGREN. States that don't do it at their own peril, because
inadequacy of counsel in a particular circumstance of a specific
case will be grounds for setting aside the conviction or setting aside
the sentence, both in the State court review and in the Federal
court review. There is no — nothing that is in here would stop that
from being done.

Mr. ScHUMER. I understand that, but it seems to me — out of fair-
ness, if nothing else, as well as making this work — that it makes
a good deal of sense for there to be some kind — after all, there is
Federal review, so the Federal standards are going to be imposed.
They are going to be imposed ex post facto or at the beginning; and
to allow States or to give States more of an incentive to provide
competent counsel at the beginning — and you know, there are re-
ports that there are a number of States that just don't — it seems
to me only fair.

Mr. LuNGREN. But those States that don't are going to suffer the
consequences in terms of review. Why impose some overall man-
dated standard by the Feds? Look, I appreciate — I appreciate the
view from there. I used to sit on that side.

Mr. SCHUMER. We have an overall standard. It is called the Con-
stitution; it is called the eighth amendment. And you admit there
is going to be Federal review, so the imposition of the standard has


come since the beginning of the RepubUc, or at least interpreta-
tions of that — let me just finish my question.

Just from a purely — let's leave out the morality; let's leave out
the States rights issue. Doesn't it make sense from a practical
point of view to see that — as you say in your testimony, that the
trial in a death penalty case should be the main event, not a tryout
on the road; and with incompetent counsel, it ends up inevitably
being a tryout. If the State wants to do a bad job, we ought to let
them. That is basically the thrust of what you are saying.

Mr. LUNGREN. No; I said you could have an opt-in provision as
in the Powell Commission. But when I got from the last Congress
and saw the standards, with all due respect, that the Federal legis-
lators decided they were going to impose on the States, I had to

Mr. SCHUMER. What was the worst standard, in your judgment?

Mr. LuNGREN. A requirement that two attorneys be involved.

Who determined that two attorneys had to be involved in every
capital case? Maybe two attorneys are necessary. Maybe not. But
for the Federal Government to say that unless you have two attor-
neys involved in a capital case, it is therefore unconstitution-

Mr. ScHUMER. It wasn't a question of unconstitutionality.

Mr. LuNGREN. Sure, it was. If you didn't have two attorneys you
had a de novo review by the Federal courts. That is the height of

Mr. SCHUMER. Well, to me, you know that is sort of like saying
the Bill of Rights is the height of arrogance.

Mr. LuNGREN. No, it is not.

Mr. ScHUMER. The bottom line of where this all flows from is not
the legislature or the Congress but from — ^you may disagree with
how the courts interpreted this, but it comes from the Bill of

Mr. LuNGREN. No. The writ of habeas corpus does not come from
the Bill of Rights. It is a statutorily imposed

Mr. SCHUMER. I understand there is a statute called habeas cor-
pus, and it is not in the Bill of Rights to have a habeas corpus pro-
vision, but ultimately, that has to be.

By the way, in California are capital cases prosecuted by one at-
torney in any situation?

"Mr. LuNGREN. Primarily, they are prosecuted by two.

Mr. SCHUMER. Do you know of any single case where one attor-

Mr. LuNGREN. On trial as opposed to — ^yes, sure.

Mr. ScHUMER. There are some? Is it rare?

Mr. LuNGREN. I am not sure that is true.

Mr. ScHUMER. I ask the witness if he could submit a — ^you know,
give us a rough ballpark estimate of how many times capital cases
are tried with one prosecutor. I don't know it as good prosecutorial

Mr. LuNGREN. I can tell you of one case in which we just had
the decision overturned. And one of the claims was that he spent
too much time running for Congress and not enough time on his
case. And when I noted that, I went to find out who the fellow was,
and it turns out he was my opponent in 1992.


Mr. McCOLLUM. Mr. Heineman.

Mr. Heineman. I have no questions.

Mr. McCoLLUM. OK. Mr. Scott.

Mr. Scott. Thank you, Mr. Chairman.

I guess I would just make a statement about Mr. Lungren's testi-
mony. I assume that he is suggesting that we give deference to the
decisions of the State courts on matters of constitutional decisions.
And I just want to express my delight that that was not the pre-
vailing view in 1954 when the Supreme Court second-guessed a
bunch of States. And I would like the Supreme Court and Federal
courts to be able to second-guess State courts.

On the question of protecting the public, as the case — the death
penalty cases get dragged out, do we have a problem with death
row inmates committing violent crimes on the public after convic-

Mr. LUNGREN. Not generally speaking, although we do have

We have one case in California — actually, it wasn't on death row.
He was sentenced to life without possibility of parole. He put out
a contract murder on the people who put him into the system, and
they went back, and six people were killed as a direct result of
that. Even though we had that

Mr. Scott. We have no examples of death row inmates commit-
ting crimes on the public.

Let me read you a list of cases

Mr. LuNGREN. Unless you consider correctional officers as a part
of the public.

Mr. Scott. This is from the staff report of the Subcommittee on
Constitutional and Civil Rights.

In 1989, James Richardson was released after 21 years in prison.
The prosecutor, Janet Reno, concluded that he was innocent.

In 1993, Curt Bloodsworth in Maryland served 9 years in prison
before DNA evidence was submitted to confirm his innocence.

Gregory Will Holt from Oklahoma served 6 years. After he was
retried, forensic experts testified that he could not have been the

I just submit those for the record, Mr. Chairman.

Mr. Gilmore, I have a number of questions on the truth-in-sen-
tencing. You indicated that about 120,000 crimes would have been
prevented if the culprits had been in jail at the time. Is it true in
that report that approximately 3.5 million crimes total would have
been committed during that period of time?

Mr. Gilmore. Congressman, we can take a look at the statistics,
and we can submit them to you at a later time. The notes that we
are looking at projects what we will be able to prevent between
1995 and the year 2005.

Mr. Scott. It is approximately a 3.4 reduction in crime?

Mr. Gilmore. We believe that we can project about 125,000
crimes that will be, in fact, prevented in Virginia.

Mr. Scott. Out of 3.5 million.

Are you familiar with the September 4, 1994, Richmond Times
Dispatch article that outlined some of the seven examples of how
this would work?

Mr. Gilmore. I have not seen that article.


Mr. Scott. You are familiar with it.

That mentioned Michael Wayne Williams as one of the seven
who had served — was released after serving 40 months of a 15-year
sentence, and murdered — was subsequently convicted of murder.
According to the Governor's aides, under the new rules, Williams
would have probably been released earlier, which would have rec-
ommended a sentence of 25 to 30 months for the same crime.

You are familiar with that example?

Mr. GiLMORE. The important thing about the reform that we
have in Virginia is that we are going to be focusing in on violent

Mr. Scott. The point I am making is that some people under the
Allen plan will get out earlier than they would have under the old

Mr. GiLMORE. The philosophy behind the program that is now in
place is to look at historical time that has been spent. Nonviolent
criminals will be serving roughly the same period of time. But now
we have truth-in-sentencing.

Mr. Scott. I only have 5 minutes, and we want to get these on
the table.

The fact is that although, on average, more time may be spent,
in fact, some will be spending less time as in the example of Mi-
chael Wayne Williams. Some will serve less time under the Allen
plan than they had before. Those would be, though, the people that
could not have made parole under the prior system, the most hei-
nous dangerous criminals with no parole plan; they can't tell you
what they are going to do after they get out, the people that have
no indication that they are going to do anything but get out and
commit more crimes. They will, in fact, be the ones that will be get-
ting out earlier under the Allen plan.

Are you aware — did the cost as estimated by the house of Dele-
gates for the plan, up to $2.2 billion in prison construction, $500
million a year annual

Mr. GiLMORE. We strongly dispute those numbers. We think the

Mr. Scott. Those are the numbers of the house of delegates.

Mr. GiLMORE. I understand that, but the administration has
made a careful study of the amount of funds. We believe that it
will be $850 million, $600 million of which would have to be spent

Mr. Scott. If the house of delegates is correct.

Let me run down something that you could do with $500 million
in Virginia in 1 year. You could double the community service
board allocation, which provides community mental health services
for $160 million; you could run 10 boys and girls clubs in each sen-
ate district for $80 million; 25 new police officers in each senate
district for $30 million; guarantee the tuition for every poor kid
that can get to college that can't afford to go, $50 million; rec-
reational program to provide summer jobs and recreational oppor-
tunities for every poor kid in the State for $50 million; double Job
Training and Partnership Act job training for $52 million; double
Head Start for $30 million; quadruple dropout prevention pro-
grams; and have $30 million left over for drug rehabilitation.


Don't you think that would be a better use of the taxpayers'
money than a program that will reduce crime less than 3.5 per-

Mr. GiLMORE. We believe that preventing over just the next sev-
eral years up to 125,000 victims — preventing those victims is a
very, very worthy expenditure of the funds. We believe that the
Congress can make a tremendous contribution to all 50 States if
this legislation is passed.

Mr. Scott. I know that my time has expired, Mr. Chair, but if
you divide the 120,000 crimes prevented by the $7 billion we are
going to spend over the next 10 years, it amounts to $58,000 per
crime prevented; and we have a lot of programs that are a lot more
cost-effective than that figure.

I appreciate the opportunity.

Mr. Buyer. Thank you, Mr. Scott. The gentleman's time has ex-

We recognize Mr. Bryant.

Mr. Bryant of Tennessee. Mr. Gilmore, let me follow up on that
line of questioning. As a former U.S. attorney myself, I am subject
to all types of statistics, and I hear this number that the average
criminal commits 25 crimes a year. I have heard larger numbers.
And I also hear numbers such as 5, 6 percent of the violent crimi-
nals commit 70, 60, 70 percent of the violent crimes. So our theory,
as I understand what you are saying, on the prosecution side is to
lock up and keep away from law-abiding society that small percent-
age of our population who commits most of the crimes.

Mr. Gilmore. That is correct, sir.

Mr. Bryant of Tennessee. The counter to that is that it costs
money to do that; you have to build prisons and hire guards. And
I have also seen numbers that calculate or attempt to calculate the
cost of those crimes that are committed or prevented that build
into that formula such costs as the loss of property on these crimes
prevented, loss of life, injuries, medical care, a loss of time off from
work. Are these valid considerations when you make these deci-

Mr. Gilmore. When I was prosecutor in Henrico, I saw those
kinds of costs every day when people came into the courtroom and
explained what their losses are. The statistics that I have seen
show tremendous hidden costs that are not necessarily seen and
not really taken -into consideration under old thinking, but under
new thinking we are beginning to seriously consider the losses of
time and the losses of property; and frankly, there are some costs
like the loss of a breadwinner in a murder or death that cannot be
measured by any amount of money.

And I think 125,000 victims avoided in one State with this more
forward-looking approach is a real step forward for the citizens of
Virginia and could be for the country.

Mr. Bryant. Let me move over to Greneral Lungren on the ha-
beas corpus.

Do you agree — I know when I was campaigning, people wanted
to know if I thought the death penalty was a deterrent, and I said
it certainly prevents that one person from ever committing murder
again. There has been no recorded history of a person who has
been executed killing again.


You were asked the question, Did people on death row who were
not executed ever kill again? And you mentioned guards. What
about, potentially, escapes there? Outside people? Other inmates?
And I don't know if it was a death row inmate in Mr. Dahmer's
case, but Mr. Dahmer certainly found that out, did he not, in Wis-

Do you agree with me that the death penalty can be an effective
deterrent against most people to cause them not to commit mur-

Mr. LUNGREN. I don't think that there is any doubt that it is a
deterrent against some. I don't think you need to justify it on a de-
terrence basis. I think you can justify it as an appropriate penalty
for the worst crimes; that is, crimes where a loss of life results and
egregious circumstances are involved. In a way, it sets a value on
life through that mechanism. It says that taking of another's life
is worth more than any other kind of crime. It is not vengeance,
but retribution, and I think we are afraid to talk about retribution.

Retribution is not something that we ought to be embarrassed
about at all. It is part of a civilized society. They try to get us into
this debate that if you are for the death penalty you are kind of
a barbarian. I would say that a barbarian society is a society in
which you stand without regard for the protection of those who
cannot protect themselves. In other words, a barbarian society is
an indifferent society. It is a society in which the will of the strong-
est prevails.

A truly caring, civilized society is one which says it will in fact
put itself on the line to protect those innocents who cannot other-
wise protect themselves, and we ought to understand that and we
ought not to be embarrassed about it. You know, for well over close
to 2,000 years, capital punishment was considered the appropriate
thing to do and was viewed as one of the ways in which you show
respect for life. It is only in the last 40 years that — or 60 years we
have begun to turn it around.

But the other thing I would say is this, it is not a deterrent if
it is not carried out. And people say, well, it is not a 100-percent
deterrent. But no action that we define as crime and no punish-
ment is an absolute deterrent because we still have people in pris-
on. But if it is only 4 or 3.5 percent effective, do we as a society
have a right to say to those three or four people who otherwise
would be dead that we are not going to carry out the death penalty
because it is only 4 percent deterrent effective? See, I don't think

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 14 of 51)