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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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whom the State of Alabama admitted ic had wrongly convicted, would
have been executed because Mr. Millian had four rounds of habeas
appeal before Alabama conceded his innocence.

Clarence Chance and Benny Powell were released in 1992 after
spending 17 years in prison for the murder of a deputy sheriff they
did not commit. The judge who ordered them freed described their
ordeal as a "gross injustice" perpetrated by the Los Angeles Police
Department's "reprehensible" behavior in its use of an informant
and the unlawful suppression of evidence. California did not have
the death penalty in 1975 when Chance and Powell were convicted.
Had they been tried before 1972 or after 1977 when capital
punishment was reinstated in California, these two men may very
well have been executed before being exonerated.

The cost of tireless efforts to free the innocent are enormous
and almost never recouped by the volunteer counsel and
investigators. In the Chance and Powell case, for example.
Centurion Ministries spent more than a half million dollars in
unreimbiirsed fees and expenses during its four and a half year

22



308



investigation. Lawyers from two private firms, including a co-
chair of NACDL's Committee to Free the Innocent Imprisoned, donated
two and a half years of pro bono legal services valued at over a
half million dollars.

The ruling in Herrera gave federal district courts little
guidance as to how to proceed when presented with a claim of
innocence." The heibeas provisions of H.R. 3, which are designed
to see that executions are carried out by the clock, greatly
increase the likelihood that even greater numbers of individuals
who have been wrongfully convicted will be killed.



HaXXtXA, 224 S.Ct. dS3.
23



309

Mr. Goldstein. Mr. Chairman, I know this is terribly rude. I
have notified the committee, I have a 6:30 plane out of Dulles, and
with your leave, if I may be excused — and I have appreciated your
indulgence, and I know it is rude — I would respectfully request an
opportunity to withdraw.

Mr. Heineman. Do you have any time here to field questions be-
fore the other panelists speak?

Mr. Goldstein. I don't want to take up their time.

Mr. Heineman. Thank you for coming, Mr. Goldstein, you are ex-
cused and we appreciate your remarks.

Mr. Goldstein. Thank you very much.

Mr. Heineman. May we give you questions for the record to an-
swer?

Mr. Goldstein. Yes.

STATEMENT OF SUSAN BOLELYN, SENIOR ASSISTANT
ATTORNEY GENERAL, STATE OF GEORGIA

Ms. BOLELYN. It is my pleasure to appear before you to take the
opportunity to discuss the important issue of Federal habeas cor-
pus reform. I come before this committee as a practitioner in the
area of habeas corpus litigation for 18 years. I have handled over
150 cases in the Eleventh Circuit Court of Appeals, both capital
and noncapital Federal habeas corpus proceedings, and 35 death
penalty cases anywhere from the direct appeal through the final
execution of those cases.

Since 1976, we have had 18 persons executed in the State of
Georgia, and I have handled 14 of those cases. So the debate over
Federal habeas corpus reform to me is not one that is theoretical,
it is one that I deal with every day on a day-to-day basis, both in
the capital and noncapital proceedings.

Just to provide the committee with a little bit of background over
what our situation is in Georgia, the fastest that anyone has ever
completed all of their post-conviction proceedings in the State of
Georgia is 5% years, but our average length of time between the
conviction for the events of murder and resulting death sentence
and ultimate execution is 11% years.

And in comparing ourselves with other States in which there is
an active death penalty, such as Florida, Alabama, and Texas, they
have a similar 11% years. However, in many cases, it is 14 and
15 years, and in one of the cases that I litigated, on which the de-
fendant pled guilty but received the death sentence by a trial
judge, that case was litigated for over 15^2 years and was at one
point in time reviewed by 132 judges on 14 or 15 different occa-
sions.

So I believe that my copanelist was incorrect when he said that
there is not some need for some change. I don't think that the 11%
years serves the process of efficiency or fairness for any of the liti-
gants and certainly not for the judges who must review these con-
tinuing litigations of the same claims over and over again.

I have called it the "merry-go-round of appeals," and I think that
the reason I have termed it such is of the 14 cases that I handled
in the post-conviction process in which the death penalty was im-
posed, each of those 14 people went through the post-conviction
process not once, not twice, but three times. In effect, they repeated



310

the nine steps available to them under Georgia law so as to have
27 separate reviews of their case in both State and Federal post-
conviction proceedings.

So I think that the issue for me has become one of finality. The
issue is not whether the courthouse door should be barred; the
issue is how long it should be open to relitigate the same claims
over and over again when there is no claim of factual innocence
and there are no new facts and no new law to support the claims,
but rather the person is simply trying to avoid the ultimate penalty
that the courts in Georgia recommended.

The other thing that I think the committee should be aware of
is the fact that in many cases, the circuit courts are attempting to
grapple with this question of habeas corpus reform by adopting ex-
pedited review procedures themselves. In the eleventh circuit, they
give preference to capital cases; they also have adopted expedited
review. But unfortunately, even in the face of adopting these expe-
dited procedures, I can point to four Georgia cases that I think il-
lustrate the need for the legislation that has been proposed.

We have two Georgia death penalty cases that awaited the deci-
sion of a three-judge panel for 4 years and then awaited on the de-
cision of the en banc court for another year after that. So in addi-
tion to all the other proceedings, it sat awaiting the decision after
it had been briefed and argued for 4 years. And I know that the
program on this case is 90 days from the final brief or argument.
I am sure that there can be some debates about whether that is
long enough, but I think everyone agrees that waiting 4 years does
not serve the process.

We have also had some cases that sat for petition for rehearing
for 3 years. So I believe that the eleventh circuit, at least in my
experience, is recognizing the need for some expediency in the han-
dling of these cases and the fact that the system is broken as far
as the speedy and fair review of these cases.

I also might say that the Georgia Supreme Court has recognized
the need for such proceedings and has adopted what is called the
unified appeal that sets forth time limitations for the filing of mo-
tions for a new trial and all of those post-conviction proceedings.
And we have in Georgia, where our general assembly is now meet-
ing, we have proposed expedited proceedings for the State courts
so that we are not guilty of the same sort of abuses that we are
accusing the Federal courts of engaging in. We are also aware that
we don't want to be guilty in the State system of creating the
delays and blaming them on the Federal courts.

I think, as this committee is no doubt aware, any change in the
present 2254 legislation will, of course, at least initially, engender
a lot of litigation, and therefore slow down the process. But I think
it may be worth it if we can go through and subject ourselves to
that first round of litigation, to get the ultimate goal which I have
said, in my view, is efficiency and fairness.

I think that in different States the bottlenecks occur in different
proceedings. In Georgia, our problem is not moving the case from
the State habeas corpus proceeding into the Federal proceeding as
an initial matter. However, that is the problem for other attorneys
general in other States.



311

Our problem is the fact that we cannot get the case quickly de-
termined in the Federal district court after we have had an evi-
dentiary hearing. In many cases, in the Federal evidentiary hear-
ing we find ourselves duplicating the evidence that was presented
at trial. We duplicate the evidence that was presented in the State
habeas corpus proceeding, and of course our position is that no du-
plication of the facts is necessary but rather that the Federal dis-
trict judge should simply apply the Federal principles to the facts
if they have already been fairly developed in the State courts.

So at the very least we are advocating that there be an expedited
review procedure in the Federal district court, that the number of
evidentiary hearings that are unnecessary be cut down, and that,
at the very least, for the successive petitions, that we decrease the
back-end time for filing those petitions if we can't decrease them
on the front end.

I have also advocated that at the first habeas corpus proceeding
there ought to be an automatic stay of execution. But what has
happened if you do that is that you are granting them an unlimited
stay of execution because of the fact that it may sit in the Federal
district court for 3V2 years and, ultimately, in the appellate court
for an additional 4 years. So while some of these provisions of the
bill say that a stay of execution is automatic unless a number of
factors occur, what is happening is in effect you are giving the cap-
ital litigant an unauthorized stay of execution.

I think I have made my position fairly clear. I don't think that
it is the position of most attorneys general and most capital litiga-
tors, to my knowledge, to decrease the availability of Federal ha-
beas corpus review to a capital litigant. What I think our goal is
is to make sure that there is a fair review, but that at some point
in time, at some point in the proceeding, we can say that justice
has been done insofar as our system can do that justice to the per-
son.

At some point in time, if we are going to have a death penalty
we need to have the will to carry that death penalty out. And I
think that what has happened in Georgia in the case that I men-
tioned, that was 14 years, is that did not serve the defendant or
the process and it certainly did not serve the victims of the crime.

Thank you.

Mr. Heineman. Thank you, Ms. Bolelyn.

Mr. Yackle.

STATEMENT OF LARRY W. YACKLE, PROFESSOR OF LAW,
HOUSTON UNIVERSITY SCHOOL OF LAW

Mr. Yackle. Thank you, Mr. Chairman. I am glad to be here. I
am an academic by trade. That makes me a historian, if you will
bear with me just a moment.

The statute that the first two chapters of H.R. 3 would amend
is the 1867 Habeas Corpus Act. Congress wrote that act about the
same time it wrote the 14th amendment. There is a link between
the two.

The 14th amendment establishes Federal constitutional rights
against State power, and the Habeas Corpus Act provides the Fed-
eral judicial machinery to enforce those Federal rights. It has been
that way for 100 years. This statute is of a piece with the Judiciary



312

Act of 1875, which established the Federal courts' basic jurisdiction
to determine Federal question cases.

We are talking, then, about amending a building-block element
of the machinery of Federal justice. This statute has to do with the
role of the Federal courts and the very structure of the Federal ju-
dicial branch. I don't suggest to you that it can't be amended. I just
suggest to you that it has to be amended, if at all, very delicately.

Second point: Most of the criticisms of habeas corpus over the
last 20 years, as I have watched this debate, have focused on proce-
dural flaws. Habeas corpus is said to be too slow, too inefficient.
It can be redundant when one prisoner files more than one peti-
tion. And it is costly.

Earlier in the day, Ms. Jackson Lee asked Attorney General Lun-
gren what he saw as the difficulties with habeas corpus and he an-
swered: It is too slow, it is inefficient, and expensive. Those were
the criticisms that he laid at the door of habeas corpus.

Ms. Bolelyn, before you now, has argued that habeas corpus re-
view, in death penalty cases in particular, is slow, expensive and
inefficient. Those are the criticisms.

Third point: By and large, very few people have proposed that
habeas corpus should be done away with. The reform measures
that I have seen over the last 20 years have focused on procedural
reforms, streamlining the process, expediting the process, but not
eliminating the basic jurisdiction the Federal courts have always
had since 1867. To do that would be to strip the Federal courts of
a major head of Federal jurisdiction. Commendably, H.R. 3 does
not include a provision, as I read it, that would eliminate habeas
corpus.

Attorney General Lungren drew a very clear line between proce-
dural reform, which he proposes, endorses, and substantive reform
or the obliteration of the basic jurisdiction. He wants the Federal
courts to retain that jurisdiction, as does Ms. Bolelyn. That is the
tradeoff.

When this committee marks up this bill, I hope there will be a
serious debate about these procedural reforms — filing deadlines,
how fast petitions are to be filed, timetables for Federal court ac-
tion, how fast Federal judges ought to act on petitions, and tough
rules on successive petitions, barring prisoners from filing more
than one petition and stringing out litigation. There ought to be de-
bate, and I am sure there will be an honest debate, about the de-
tails of those measures. But that is where the debate should focus.
That is what the bill ought to be about. It ought not to be a bill
to eliminate the substance of the jurisdiction.

My recommendation to you is to put in this bill an explicit dec-
laration of the one-bite-at-the-Federal-apple idea that Attorney
General Lungren suggested to you. After a claim has arrived at the
Federal courthouse in a timely way and it has cleared all the proce-
dural hurdles, it is there in a proper procedural posture, it hasn't
come by way of a successive petition, it is there to be determined
on the merits by the Federal court, then the Federal court should
independently determine the merits of the claim. That is the core
of the jurisdiction and has to be, I think, retained.

You can do it very easily in a couple of lines. It has been done
in bills in the past. State in the bill that when a claim does arrive



313

in a timely way, in the proper procedural posture, then the Federal
court has the obligation, the responsibility, the duty, to determine
the Federal claim on the merits in a correct way. That is one bite
at the apple, it seems to me, in a procedurally efficient way.

Attorney General Lungren and I disagree in one respect. He
would have the Federal court defer to a previous State court deci-
sion on the merits of claims. He would have the committee insert
in this bill something that is not there now — a provision that would
deny the Federal court an ability independently to reach a correct
result on a Federal claim. Instead, he would have the Federal court
defer to a State court's understanding of the meaning of constitu-
tional rights. He would have it that so long as the State court deci-
sionmaking process was fair — full and fair — then the State court
determination ought to prevail, even if the State court reached an
incorrect result.

He would have it that, so long as the State court reached a rea-
sonable result, even though incorrect, still it should prevail and the
Federal court should not be able to act. Only if the Federal court
can say that the State court was not only wrong, but unreasonably
wrong, would the Federal court be able to enforce basic constitu-
tional rights. That, I suggest to you, would effectively eliminate
Federal habeas corpus, the substance of the jurisdiction. That is
court-stripping legislation. It is not procedural reform at all.

The bill that is before you, let me be clear about this, does not
include that provision; and I hope when a reform measure emerges
from the committee it also will not include that kind of provision.

Mr. Heineman. Thank you, Mr. Yackle.

[The prepared statement of Mr. Yackle follows:]



314

Prepared Statement of Larry W. Yackle, Professor of Law, Boston
University School of Law

1 want to thank the CommlLLee for Inviting me here today to
discuss proposals to amend the federal statutes governing habeas
corpus. I have focused much of my academic work on the writ,
and. In recent years, I have followed legislative reform
proposals with great Interest. I hope I can offer some
constructive comments on the bill now under discussion, as well
as alternative plans advanced in previous years. I am sure you
understand that I speak only for myself and not for Boston
University or any other institution or organization.

I regard the federal courts' authority and responsibility in
habeas corpus cases to be a vital cog in the machinery of
American justice. It is in these cases that the federal courts
enforce basic constitutional rights. At the same time, 1
understand that the processing of habeas corpus cases (;an be
time-consuming and inefficient for all concerned: for the federal
and state courts, for states' attorneys, and, most certainly, for
petitioners attempting to vindicate their federal claims.
Effective, meaningful, procedural reforms are, accordingly, in
order. The point 1 want to make to you today is that Congress
should make needed procedural adjustments that streamline and
expedite the habeas process, but should not strip the federal
courts of their substantive jurisdiction to enforce the Bill of
Rights in habeas cases.

I. The Rationales for Habeas Corpus

Let me begin with a brief description of the general
framework now in place and the rationales for the federal courts'
jurisdiction.

criminal defendants typically assert federal constitutional
claims in state court at trial, on appeal, and in any further
"postconviction" proceedings available under state law. if the
state courts rule against them, convicts can seek direct review
in the supreme court, but since that Court cannot accept many
cases, most are turned away.

The only means most state prisoners have to get a federal
hearing for their federal claims is provided by one of the great
federal civil rights laws enacted by the Reconstruction congress,
the Habeas corpus Act of 1867, which permits state prisoners to
petition a united states District court for a writ of habeas
corpus on the ground that they are being held in custody (usually
in state prison) in violation of their federal rights.



315



At least since the Supreme Court's decision in Brown v .
Allen in 1953, it has been settled that the federal courts have
the authority and the obligation under the 1867 Act to adjudicate
prisoners* federal claims de novo . The federal courts may
consider previous state court judgments on federal issues. But
the federal courts cannot simply defer to those judgments and
give them any kind of preclusive effect. Amendments to the
Habeas Corpus Act enacted in 1966 plainly incorporate this
understanding of federal habeas corpus.

There are solid reasons for the existence of federal habeas
corpus for state prisoners. For one thing, it is the law - and
has been (by the most conservative estimates) for forty years.
In all that time. Congress has never wavered from its commitment
to make the federal courts available for the independent
adjudication of prisoners' federal claims. And there are reasons
why it is the law:

1. State courts are overburdened by criminal cases and may
well overlook or misapprehend criminal defendants' federal
claims. Federal courts are busy, too, but are better positioned
to give federal constitutional issues the attention they deserve.

2. state courts are charged both to enforce state criminal
law and to safeguard federal rights that typically make
convictions more difficult to obtain. Federal courts experience
no similar tension in their treatment of federal claims in habeas
corpus .

3. state judges in many jurisdictions are still accountable
to the electorate for decisions that may be unpopular. Federal
judges have life tenure and are thus insulated from similar
political pressures.

4. The supreme court is no longer able to sit as a court of
error to correct state court mistakes of federal law. The
federal habeas corpus courts serve as surrogates - of fering an
independent federal forum for the adjudication of federal claims.

5. In the absence of federal habeas corpus, violations of
federal constitutional rights in state court would go
uncorrected. The success rate for noncapital habeas petitioners
is modest, but reliable studies in recent years show that
petitioners under sentence of death are able to demonstrate
constitutional error roughly forty per cent of the time.

6. some habeas corpus petitioners are innocent of the crimes
of which they were convicted, and others are not legally eligible
to receive the death penalty under applicable state law and
Supreme Court precedents. If those petitioners are denied access
to the federal courts, the most egregious injustice may be done.



316



II. Meaningful Procedural Reforms

Essential as it is to preserve the federal courts'
jurisdiction to adjudicate federal claims in habeas corpus, it is
also important to ensure that cases are processed through the
system with dispatch and efficiency. Yet habeas is freighted
with delays and snarls that frustrate effective adjudication of
the merits of petitioners' claim8 - partlcularly in capital cases.
Critics charge, for example, that there are no fixed deadlines
for filing federal petitions and that, in some Instances at
least, a single petitioner may be permitted to file more than one
petition and thus extend litigation.

I appreciate concerns of this kind and, in the past, I have
endorsed reform programs that would resolve or mitigate genuine
procedural difficulties under current law. I thought that the
report this committee approved in the last Congress (H.R. Rep.
103-470, 103rd Cong., 2d Sess., March 25, 1994) offered a sound,
balanced approach, together with a well-crafted package of
specific amendments to the existing habeas statutes. I commend
that report and the bill Included with it to your attention again
this year.

XIZ. The provisions in H.R. 3

The habeas provisions in H.R. 3 appear in the first three
chapters. They are based on alternative bills that Mr. Mccollum
and Mr. Hyde offered in the 103rd Congress. Chapter 1 presents
"general" measures (for both capital and noncapital cases);
Chapter 2 advances measures on capital cases only; chapter 3
contains subsidies to underwrite state efforts to defend against
habeas corpus petitions.

Chapter 1

This chapter tracks the contents of a bill originally
advanced by the Keagan Administration in 1982.

1. Filing Deadlines for state Prisoners , section 101 would
require a prisoner attacking a state conviction or sentence to
file a federal petition in federal court within one year after
the prisoner has exhausted the opportunities for litigating
federal claims in state court. Current law contains no precise
filing deadlines for habeas corpus petitions, but Rule 9(a) of
the Habeas Corpus Rules does provide that a petition may be
dismissed summarily if a prisoner delays filing until the state
is prejudiced in its ability to respond to the prisoner's clains.



317



Last year, this Committee apparently concluded that Rule
9(a) provides a sufficient spur to early filing in noncapital
cases - in which, incidently, petitioners typically have no
lawyers. The Committee did, however, adopt a one-year filing
period for capital ca8es - runnlng from the conclusion of direct
review, tolled during the pendency of an application for
postconviction relief in state court.

I am not aware that tardy petitions present a serious
problem in noncapital cases. Accordingly, I would urge the
committee to limit any new filing deadline in this year's bill to
death penalty case6 - ln which prisoners typically do have
attorneys to assist them.

2. Restrictions on Appeal . Section 102 would allow a
prisoner to appeal from an unfavorable decision by a federal
district court only if a circuit judge of a justice of the
Supreme Court issues a certificate Indicating that there is
"probable cause" for such an appeal. Current law also bars an
appeal in the absence of such a certificate, but allows a



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 27 of 51)