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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lot of people who are well-intentioned telling me that thieves, bur-
glars, and drug dealers are nonviolent.

They are — ^you look at almost anybody's criminal record. They
are — it is a concatenation of crime after crime, the repeat violent
offender, which is degrading our communities' quality of life. And
I think that that is an important consideration for this committee.

Mr. Chabot. I think Mr. Boyle wanted to comment as well.

Mr. Boyle. If I may. This nonviolent drug offender who killed
our son, a week prior to this, as it came out during the trial, he
had actually killed another human being. The homicide detectives
had not yet focused on his name. This cannot be proven, of course.
But one of the reasons we believe that he took the action that he
did was because he thought Danny was stopping him to arrest him
for that particular murder the week prior.

Also, during the testimony at trial, his conspirator in the car —
there were two people in the car, they were armed. They were
going out that evening for the sole purpose of robbing and, if nec-
essary, shooting other drug dealers.

So where does the violence begin? You don't have — if somebody
commits homicide after homicide after homicide — we, fortunately,
in Philadelphia have a very good homicide department and a very
good prosecutor's office. The drug dealers and criminals, nobody



280

can predict, no one, when they are going to go over the edge and
harm someone.

So I don't buy that argument. I am sorry.

Mr. Chabot. Thank you very much.

Mr. Bronstein. Mr. Chairman, we can put the warden's survey
in the record and

Mr. McCOLLUM. We will be glad to have you put the survey in
the record. There are other surveys, as you know, that show that
about 93 percent of the prisoners are violent related in some way.
But that survey can go in. I have no problem of it.

[The information not received by time of printing.]

Mr. McCoLLUM. I believe, Mr. Scott, you had a minute and a
half. Do you want to use it? I want to ask one or two quick ques-
tions and I believe the panel will be finished

Mr. Barr, you came back. I am sorry. It is your turn.

Mr. Barr. With the chairman's indulgence, a couple of quick
questions.

Mr. McCOLLUM. Absolutely.

Mr. Barr. Thank you, Mr. Chairman. I hope that as the coming
months unfold, we will have the opportunity to discuss whether
anybody who uses mind-altering drugs is not a danger to society.
I think they are. When you alter your mind, you endanger other
people in your ability to act rationally and react rationally. I don't
think that there is anybody in jail who has been using drugs that
doesn't deserve to be there. We can argue about the amount of
time, but I think they deserve to be there.

Mr. Bronstein, with regard to title VII of the bill, stopping abu-
sive prisoner lawsuits, you talked about Federal judges not relish-
ing getting these cases. And in my experience in Federal courts, I
agree that most Federal judges would much prefer to be handling
more substantive litigation and, very frankly, litigation that is
more important to our Constitution.

But there are some that do seem to want these things to accrue
to them, for what reason I have never figured out, because they are
not the sort of cases that I, when I was a U.S. attorney, particu-
larly wanted to deal with. There were more important things that
we had going also.

But I look at section 702, for example, as really helping those
Federal judges. I happen to think that some of them would like to
have more restrictive legislation so that they don't feel the need,
as many of them do, to take these cases, to give them a full and
fair hearing. And I agree with earlier remarks that there is no such
thing as a short full and fair hearing.

But have you come across any Federal judges in your vast expe-
rience in these matters, Mr. Bronstein, in which you think some of
these Federal judges might favor this legislation to stop what I
think is a very destructive process of these frivolous lawsuits? And
there are a lot of them that really demean the entire process. They
destroy the public's credibility in our criminal justice system, and
that hurts all of us.

But do you not agree with me that it might help some Federal
judges to have this to say, look. Federal judges are pretty smart
people, by and large, and you are looking at these lawsuits and I
think these judges can tell whether it is frivolous or not and if we



281

have a statute that says if it is frivolous, you don't worry about it,
you don't have to waste your time on it. And as a matter of fact,
you don't waste your time on it; you pay more attention to impor-
tant things.

Mr. Bronstein. Well, current law provides that a Federal judge
can dismiss sua sponte on his or her own initiative

Mr. Barr. That is correct.

Mr. Bronstein [continuing]. A lawsuit, on its face, that appears
to be frivolous. So we don't need that additional language.

Mr. Barr. Why do some of them hear them? I think they feel al-
most a need to do so.

Mr. Bronstein. What they hear are those lawsuits which are not
frivolous on their face, but which may state a claim but they are
not sure they state a claim. They don't have to give a full and fair
hearing. All they need to do to satisfy current law is to ask the law-
yer for the jurisdiction, the governmental jurisdiction, file re-
sponses, is there anything to this, and then they can dismiss. So
you don't have to have a full and fair hearing.

And I would like to take very serious issue, respectfully, with the
whole basis, the premise to your question. I can think of no more
important use for our Constitution than protecting the rights of
that segment of our society that is the most powerless. There is no
one in our society that has less power than people that we put be-
hind bars, and that is what the Constitution has to protect. Not
you or me or Mr. Rockefeller or the rich people or the wealthy peo-
ple, but the powerless. That is what is important.

Mr. Barr. No, it does protect you and it does protect me, and we
are wasting time protecting things that don't have any business
being in court. And they demean the Constitution.

Mr. Bronstein. I disagree respectfully.

Mr. Barr. I yield back the balance of my time.

Mr. McCOLLUM. I wanted to ask a couple of quick questions in
closing.

Ms. Abraham, we have a bill that Mr. Kennedy and Mr. Greren
introduced yesterday entitled the Stop Turning Out Prisoners Act.
This piece of legislation goes to the prison camp issue and has as
its central focus a provision that says that the plaintiff must prove
that crowding is the primary cause of deprivation of Federal rights
and no other relief will remedy that deprivation.

Is this something that you believe would have material impact
on the problems that you have been describing today? And why, if
so?

Ms. Abraham. Mr. Chairman, I obviously do, and support that
bill. And if I may sneak in a sly remark, I think the most powerless
people in our system are the victims of crime. They don't even get
a mention, and that is the sad thing about it.

I understand that prisoners may feel that they are powerless, but
if you listen to the dialogue almost everywhere, the person or per-
sons that are least helped or least thought of are the victims, who
are true powerless people in this whole scenario.

Mr. McCOLLUM. A lot of Americans are cheering you on there,
yes, sir, or yes, ma'am, to that one.

Ms. Abraham. Well, I will take yes, sir, or yes, ma'am. It does
not make any difference to me. The Kennedy-Geren Act, or STOP



282

Act, does several things. It is the least intrusive kind of way that
we can handle this matter. And by the way, it also tightens up
some of the other problems that were in the previous bill signed
by the President a few months ago.

I think that it is a last-resort remedy. There is an automatic ter-
mination. There is a termination upon motion, which is very help-
ful to us.

We, for example, have had motions filed in front of our Federal
judge where she just sat on them for 2 years and didn't do any-
thing, and then threw it out for want of really no good reason
whatsoever.

I think that the procedure that allows a 30-day or 180-day cap
avoids delays. I think it gives standing to people who have no
standing, like law enforcement officials like me, and other affected
officials, for example, like police officers. I think the limitation on
attorney fees is a very good thing. And also and very importantly,
for example relating to Philadelphia, we have a special master ap-
pointed who is getting over $150,000 a year every year for many
years, who is an independent factfinder, who reports only to the
judge, like an employee. And this person, a member of — a former
member of the Pennsylvania Prison Society has the total ear of the
Federal judge and goes and talks to her in secret about what his
findings are.

The good thing about the bill is that it allows U.S. magistrates
and on-the-record proceedings. All of those things don't denigrate
the job of the Federal judge, but expand the rights of all of us to
find out just what is going on behind these closed doors with these
private things. So I think that is very good.

And I think also, most importantly, it is not so much that Fed-
eral judges are taking up their time with things that perhaps
would be better spent elsewhere. It is the fact that they have to
take these issues up at all on first look or first glance. And that
is one of the problems that I have with this whole process. So I be-
lieve that Kennedy-Geren, in conjunction with title VII, makes a
very important package and a very impressive statement by Con-
gress to the people that we all serve about their concern about this
tremendous issue.

Mr. McCOLLUM. It is my understanding you might have some
documentation you wanted to put in the record for us for your situ-
ation of crowding in Philadelphia. You are certainly welcome to do
that if you wish to.

Ms. Abraham. We would be delighted to. We have summaries
and we would be able to provide the committee with any docu-
mentation that they ask for.

[Information not received by time of printing.]

Mr. McCOLLUM. I want to thank the panel today, Detective Boyle
particularly. I know how difficult it was for you to appear today,
but you are doing a great public service by being here.

Ms. Abraham, obviously your testimony is excellent. Mr.
Bronstein, you have added balance and perspective that we badly
needed here today; and we thank all three of you for coming.
Thank the panel.



283

Now we are ready to proceed with the final panel of the day
today. This panel is going to discuss Chapters 1 and 2 of title I of
H.R. 3, dealing with the reform of habeas corpus statutes.

The members of this panel I will introduce as they come forward
are Susan Bolelyn, the senior assistant attorney general for the
State of Georgia — she is the director of the Criminal Law Division,
where she has practiced for 18 years; Gerald H. Goldstein, a part-
ner in the San Antonio, TX, firm of Goldstein, Goldstein & Hilley.
He has been a criminal defense lawyer for over 25 years and is a
member of the board of the Texas Death Penalty Resource Center,
and presently serves as president of the National Association of
Criminal Defense Lawyers; and Larry W. Yackle, a professor of law
at Boston University, specializing in constitutional law issues. He
is the author of three books and numerous articles, including sev-
eral articles regarding reform of the habeas corpus procedures.

I want to welcome all three of you here today.

I think perhaps we ought to go in the order in which the mem-
bers are sitting down here in the sequence. And we will go with
Mr. Goldstein first.

STATEMENT OF GERALD H. GOLDSTEIN, ESQ., ON BEHALF
OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS

Mr. Goldstein. Thank you, Mr. Chairman.

May it please the committee, Mr. Chairman, I first want to
thank Congressman Heineman for his remarks regarding the root
cause of crime. I think with emphasis on fiscal responsibility these
days, and the fact that it costs us, as taxpayers, somewhere be-
tween $20,000 and $30,000 a year per bed to house these individ-
uals — in fact, we could probably be sending most of them to Har-
vard. We need to leave enough on the table, quite frankly, to edu-
cate, to house these young children, to at least attack the root
cause of this "epidemic," if we want to call it that, or else it is going
to envelop us.

I come to you, brothers and sisters, from a State that, given the
numbers, quite frankly is dying to kill people. We operate on the
philosophy that killing people who kill people will deter people
from killing people; and we lead the Nation in executions. In fact,
we did that several years ago by executing two people on the same
day, when we surpassed Florida.

The President's home State, I noticed, executed three people on
the same day last year.

One of the things that I think we need to understand when we
are dealing with habeas, particularly when it deals with death pen-
alty cases, is that, by and large, capital offenses, offenses that carry
the death penalty, are the kinds of offenses that I, as a trial law-
yer, can tell you are the most heinous kinds of offenses, the kind
of offenses that outrage public dignity. They inflame jurors. They
are the kind of cases where that inflamed public passion is the
most likely to permeate the jury box.

And quite frankly — and I think we have seen more and more of
this demonstrated in recent years — they are the kind of cases that
we are the most likely to make a mistake. In the average, run-of-
the-mill case where not much is at stake, people seem to give the



284

benefit of the doubt. In the impassioned case, where we cry out for
vengeance, we are more Hkely to take someone down.

The constant refrain that I hear about habeas reform, about
speeding up the process from sentence to execution, about greasing
the skids, quite frankly, exploits public opinion and exacerbates a
disparity between the accused and his or her accuser.

Counsel in death penalty cases are paid woefully low. In most
States, they are paid a pittance compared to what we would pay
appointed counsel who represent a trust or a thing of monetary in-
terest. They are paid a fraction of what we pay individuals who
represent security cases as a matter of law. They are often given —
if they are given any money at all for expenses, $50, $100, $500
maximum ceiling to pay for investigators and experts, when even
small community police forces spend hundreds of thousands of dol-
lars in notorious cases. Quite frankly, we are expecting young, in-
experienced lawyers to take on overwhelming burdens.

The spectacle of what is going on on the west coast these days —
if you turn on your television set, you can't avoid it — will give you
a good example of what a real defense costs when you are dealing
with scientific evidence. No one could be expected to mount a DNA
defense with a $500 ceiling, much less a $100 ceiling, or in several
of our States where you are given no money for experts whatso-
ever.

It is important to remember that whether we are talking about
the writ of habeas corpus sections 2255, or section 2254, it rep-
resents the single, solitary, remedy for Federal constitutional rights
in a Federal court. We have already envisioned and have seen an
evisceration of that great writ and the statutes in Federal court. In
Stone V. Powell, the Supreme Court told us we have no Federal ha-
beas review of Federal fourth amendment constitutional claims
where the defendant received a hearing in State court, even if the
Federal court admitted the State court reached the wrong result.

In Wainwright v. Sykes, the Supreme Court held that a citizen
has no right to complain of Federal constitutional deprivations
where his State lawyer fails to make a contemporaneous objection,
even though the citizen was unaware, ignorant of or naive with re-
spect to exercising those rights.

In McCleskey v. Zant, the Supreme Court held that filing succes-
sive Federal habeas corpus, or section 2255 and 2254 petitions, is
precluded unless you can show some excusable neglect in failing to
file that claim in the first place. So we don't have successive peti-
tions any longer.

In Austin v. U.S., the Supreme Court held that if the Govern-
ment forfeits too much of your property, it might violate the eighth
amendment prohibition against cruel and unusual punishment.
Nevertheless, in Herrera v. Collins, that same court held that a
citizen's factual innocence was not a protectable constitutional
right to preclude that citizen's execution in my home State.

So the abuse of the writ has been substantially pared down,
folks, if we want to call it an abuse at all.

If we are talking about speeding the process up, what is going
to happen? It is a human process. It has human failings. It makes
human mistakes. Trust me, I have been there. Any one of you who
have been in a courtroom know that.



285

What about the Gary Nelsons, where it took 6 years of work by
unpaid lawyers to prove his innocence and release him from death
row? What about the Joseph Green Browns out of Florida where
it took unpaid lawyers 14 years to demonstrate to the Florida law-
yers and to the Florida Bar and to the Florida authorities that they
had the wrong man and release him from death row? What about
Randall Dale Adams who inspired the "Thin Blue Line" movie? It
took 12 years — a cousin of mine is a lawyer in that case; he comes
from the jurisdiction where one of the Congresspersons on this very
committee sits — 12 years for those unpaid lawyers to prove his in-
nocence and obtain his release from death row.

If we streamline this process to 180 days, to 6 months, do we as
a civilized society simply write those lives off in the future as sim-
ply a cost of doing business? As we hasten down this path, ladies
and gentlemen, let me suggest that someday soon perhaps we
should substitute our concern for the speed with which we decide
who among us should live and who should die, with a concern
about the fairness of that process.

Thank you.

Mr. Heineman [presiding]. Thank you Mr. Goldstein.

[The prepared statement of Mr. Groldstein follows:]



286

Prepared Statement of Gerald H. Goldstein, Esq., on Behalf of the
National Association of Criminal Defense Lawyers

Mr. Chairman and members of the Subcommittee on Crime and Criminal
Justice :

Thank you for affording the National Association of Criminal
Defense Lawyers (NACDL) an opportunity to provide some perspective
on the historical systemic changes being proposed to the federal
law on habeas corpus. This area of law represents one of the
fundemental pillars supporting the legitimacy of the legal system
of this country. Essentially, it serves as the criminal justice
system's "failsafe" mechanism, the last (and in some instances
only) meaningful chance to ensure that state convictions and death
sentences have been imposed within the limits of the federal
Constitution.

Title I of the Taking Back Our Streets Act, H.R. 3 (known as
the Effective Death Penalty Act) is designed to prevent those with
the greatest need - the poor, African Americans, and the innocent
- from obtaining review of their state convictions by federal
judges whose lifetime tenure insulates them from electoral politics
and the seismic fluctuations of public opinion polls.

Habeas corpus "reform" is not the invention of the new
Republican majority. Systemic change has been hotly debated during
the last several congressional sessions.

1



287



The good news is that the discussion has provoked some
thoughtful research into the historical role and the modern-day
application of the writ, particularly in capital cases. The bad
news for the nation is that to the extent the process needs
revision, Title I of H.R. 3 exploits public misunderstanding about
the Great Writ, exacerbates the procedural morass and does nothing
to address the greatest crisis in capital litigation - the
failure of states to appoint qualified, adequately compensated
counsel at the trial level.

In 1991, Columbia University Law School Professor James S.
Liebman, one of the nation's foremost authorities on habeas corpus,
and John J. Curt in, Jr., then President of the American Bar
Association, testified before the Judiciary Committee of the United
States Senate which was considering various proposals for habeas
reform. The authors of the Contract with America, and for that
matter all Americans, would be well served to revisit this text.
The testimony carefully traces the history and the historical
import of the Great Writ that "has defined Anglo-American law since
the Magna Carta emd that remains today the greatest legacy of that
law to the world." '^



^ Statement of John J. Curtin, Jr., emd James S. Liebman on
behalf of the A.B.A. before the Committee on the Judiciary of the



288



Liebman and Curtin's testimony reminds us that hsOseae corpus
has often been the only remedy available to the federal courts to
enforce fundamental civil liberties. To cite but a few examples,
the writ has been the means by which prosecutions motivated by the
race of the defendant were halted,^ convictions based on knowing
reliance on perjured testimony were overturned,' coercion in
obtaining confessions and guilty pleas was precluded," systematic
exclusion of blacks from juries was ended, ^ and a defendant's right
to competent trial counsel was assured.*

The writ of haJseas corpus is an easy scapegoat . It has come
to be synonymous with the simplistic, mistaken refrain that delay
in carrying out death sentences is both commonplace and
unreasonable. Habeas corpus is primarily identified with capital
defendants who, having already been tried and convicted, are seen



United States Senate concerning Fairness and Efficiency in Hcd^eas
Corpus Adjudication, May 7, 1991, p, 6.

^ See Yick Wn v. Hopkinfs. 188 U.S. 356 (1886).

5 See Mooney v. Hotohan. 294 U.S. 103 (1935).

* See Wa1k«>r v. Johnston . 312 U.S. 275 (1941); WaT«>v v.
JnhnKt.on . 316 U.S. 101 (1942); Leyra v. Denno . 347 U.S. 556 (1954);
Rftck V. Pat.ft. 367 U.S. 433 (1961).

' See Brown v. Allen . 344 U.S. 443 (1953).

« See Kimmelma n v. Morrison , 477 U.S. 365 (1986),

1



289



as entitled to no more than the swiftest execution possible.
Perhaps too, in this era of ant i- immigrant sentiment, those who
come to Washington determined to bury habeas corpus, are counting
upon legislators to reject anything that carries a foreign-sounding



MR. 3 Does Not Restorft Habeas Corpus as a Meaningful Remedy for
the Redr j»fifi of Meritorious Federal Constitutional Claima.

For death row inmates, access to federal habeas relief is now
on the other side of a procedural hornet • s nest constructed over
the last 17 years by the United States Supreme Court. In 1989,
following an exhaustive, nation-wide study of the subject, the
American Bar Association Criminal Justice Section's Task Force on
Death Penalty Habeas issued its report.' The study found that the
Court's decisions have made an already complex area of practice
labyrinthian . They have thrown great confusion into settled areas
of the law, created many new issues for the parties to fight over,
and erected procedural obstacles that delay and frequently preclude
federal courts from reaching the merits of valid constitutional
claims.



40 American University Law Review 1 (1990)

4



290



But a few in what is now a long list of judicially-created
restrictions on federal habeas include the following: A prisoner
cannot obtain a hearing in federal court on a Fourth Amendment
claim where there has been been a "full and fair" hearing in state
court, regardless of the correctness of the state court's ruling.
Indeed, the Supreme Court has severely limited the opportunity for
an evidentiary hearing in federal court on any claim if there has
been some sort of hearing on the issue in state court . State
procedural rules are rigidly applied to bar an inmate from being
heard in federal court, even where the failure to comply with those
rules was due to ineptness by his attorney. The Supreme Court has
drastically narrowed the application of evolving constitutional law
to largely exclude cases reviewed on habeas corpus . No matter how
compelling the evidence that comes to light, state prisoners are,
for all practical purposes, now limited to one petition for writ of
habeas corpus . *



' Some of the more significant in what is now a long list



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 25 of 51)