[Senate Hearing 109-366]
[From the U.S. Government Publishing Office]
S. Hrg. 109-366
HABEAS REFORM: THE STREAMLINED PROCEDURES ACT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 16, 2005
__________
Serial No. J-109-52
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 62
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 27
prepared statement........................................... 83
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 94
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Eisenberg, Ronald, Deputy District Attorney, Philadelphia
District Attorney's Office, Philadelphia, Pennsylvania......... 5
McKibben, Howard D., Senior United States District Judge for the
District of Nevada, and Chairman, Committee on Federal-State
Jurisdiction, Judicial Conference of the United States, Reno,
Nevada......................................................... 13
Waxman, Seth P., former Solicitor General of the United States,
and Partner, Wilmer, Cutler, Pickering, Hale and Dorr,
Washington, D.C................................................ 7
QUESTIONS AND ANSWERS
Responses of Howard D. McKibben to questions submitted by Senator
Leahy.......................................................... 37
SUBMISSIONS FOR THE RECORD
American Bar Association, Eric M. Freedman, Maurice A. Deane
Distinguished Professor of Constitutional Law, Hofstra Law
School, Washington, D.C., prepared statement................... 44
American Judicature Society, Judicature, September-October 2005,
Des Moines, Iowa, editorial.................................... 57
Arizona Daily Star, Tucson, Arizona, July 9, 2005, editorial..... 58
Concord Monitor, Concord, New Hampshire, July 17, 2005, editorial 60
Denver Post, Denver Colorado, August 9, 2005, editorial.......... 63
Detroit Free Press, Detroit, Michigan, July 19, 2005, editorial.. 64
Eisenberg, Ronald, Deputy District Attorney, Philadelphia
District Attorney's Office, Philadelphia, Pennsylvania,
prepared statement............................................. 65
Federal Public and Community Defenders, Thomas W. Hillier, II,
Federal Public Defender, Chair, Legislative Expert Panel,
letter......................................................... 76
Hartford Courant, Hartford, Connecticut, October 25, 2005,
editorial...................................................... 85
Journal Gazette, Fort Wayne, Indiana, August 2, 2005, editorial.. 86
Kansas City Star, Kansas City, Missouri:
July 15, 2005, editorial..................................... 87
October 6, 2005, editorial................................... 90
Keene Sentinel, Keene, New Hampshire, July 23, 2005, editorial... 91
Knight-Ridder News Wire, Philadelphia, Pennsylvania, July 23,
2005, editorial................................................ 92
Los Angeles Times, Los Angeles, California, July 13, 2005,
editorial...................................................... 96
McKibben, Howard D., Senior United States District Judge for the
District of Nevada, and Chairman, Committee on Federal-State
Jurisdiction, Judicial Conference of the United States, Reno,
Nevada, prepared statement..................................... 97
New York Times, New York, New York, July 16, 2005, editorial..... 113
Philadelphia Inquirer, Philadelphia, Pennsylvania, October 28,
2005, editorial................................................ 114
St. Louis Post Dispatch, St. Louis, Missouri, July 13, 2005,
editorial...................................................... 115
St. Petersburg Times, St. Petersburg, Florida:
August 26, 2005, editorial................................... 117
October 31, 2005, editorial.................................. 118
San Francisco Chronicle, San Francisco, California, July 14,
2005, editorial................................................ 119
San Jose Mercury News, San Jose, California, August 19, 2005,
editorial...................................................... 120
Tennessean, Nashville, Tennessee, July 22, 2005, editorial....... 121
Washington Post, Washington, D.C.:
July 10, 2005, editorial..................................... 122
August 19, 2005, editorial................................... 123
September 29, 2005, editorial................................ 124
Waxman, Seth P., former Solicitor General of the United States,
and Partner, Wilmer, Cutler, Pickering, Hale and Dorr,
Washington, D.C., prepared statement........................... 125
HABEAS REFORM: THE STREAMLINED PROCEDURES ACT
----------
WEDNESDAY, NOVEMBER 16, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:44 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Kyl, Cornyn, Leahy, Feinstein,
and Feingold.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. The Judiciary Committee will proceed with
this hearing on habeas corpus reform. We have been awaiting the
arrival of other Committee members, but at this time we will
move forward.
This is the second hearing on the legislation introduced by
Senator Kyl. It is an effort to balance some very complex
considerations on death penalty cases to be sure that the
constitutional rights of those convicted are observed with the
collateral proceedings in habeas corpus, but at the same time
to do what is fair to move ahead the conclusion of these
proceedings.
This is an area that I have been very familiar with over
the years since my days as district attorney of Philadelphia
and litigating many habeas corpus proceedings in the State
courts and in the Federal courts. There is an overhang of
opposition, I think fairly stated, to put a time limit on these
proceedings because of people who are opposed to the death
penalty. And I can understand that. It is a complicated
subject, and people of good will and good faith are on both
sides of the issue.
I think it is important to note that in this legislation,
we have expanded the DNA to do what is scientifically possible
to exonerate the innocent. I note just the recent statistics
released about a reduction in the number of death penalty
cases, executions, and I think that is occasioned by public
doubts as to the guilt of some who are under the death penalty
and the growing concern about the death penalty. But as long as
it is on the books and the States are moving ahead to enforce
it, we ought to do what is practical to avoid enormous delays.
The scheduling of this hearing has been very difficult
because we cannot seem to get all the witnesses together at the
same time, and only this morning I found that we do not have
the representatives from the Chief Justices here, and I regret
that. But we have the Judicial Conference here and we have
former Solicitor General Seth Waxman, who appeared at an
earlier hearing and has been very helpful in trying to work out
some of the intricacies. And we have an astute representative
of the prosecutors here, somebody from the Philadelphia
District Attorney's Office. He did not serve at the right time,
but he is serving now.
Senator Kyl. It gets better all the time.
Chairman Specter. And they are getting much better all the
time. They relegate need ex-D.A.'s to who knows where.
I had made a commitment to Senator Kyl to try to move this
along. He has been very cooperative on the first substitute
which my staff prepared under my name and the second
substitute. And I think we have gone a long, long way. And
Senator Feingold has been appropriately urging a hearing. I
have been filibustering, Patrick--
Senator Leahy. Thank you. I showed up.
Chairman Specter [continuing]. To make sure that you were
here on time to make your opening statement. I have still got a
minute and 15 seconds left. I ordinarily want to take 2
minutes.
But as I was saying, Senator Feingold has been
appropriately insistent on these hearings, and that is right.
We ought to consider them. I was tempted at one point to move
the bill out of Committee and decided not to, to give another
hearing and to make every conceivable effort to meet all of the
objections and to try to move ahead so that we do not get hung
up on some claims which are exhausted and some which are
unexhausted in the State court, which has an interminable
tennis match, and to do what we could to provide effective
assistance of counsel. And the 1996 legislation goes a long way
there, but it has not been implemented because it has been so
complicated, and we are working on that collaterally in other
legislation which is being considered.
I am delighted to yield now to our distinguished Ranking
Member, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman, and I know your
penchant--which I happen to agree with, and what I have
followed the various times I have been Chairman--of starting on
time and I appreciate your--I know you held up while I tried to
get through unbelievable traffic jams. And I am glad you are
holding this hearing. It is our second hearing. Since our first
hearing back on July 13th, I believe, the bill has been
strongly opposed by a wide range of experts and practitioners,
and it has twice been rewritten.
Yesterday, the Senate voted to strip Federal courts of the
authority to consider habeas petitions from detainees being
held in U.S. custody as enemy combatants, demonstrating once
again to the rest of the world our great commitment to the rule
of law, I guess. At no time before in our Nation's history have
habeas rights been permanently cutoff from a group of
prisoners. I found it interesting we are doing it at the same
time when the President is abroad telling other countries that
they must improve their commitment to the rule of law and to
people's rights. And with the support of the White House, we
are moving here to cutoff people's rights. It is fascinating
double-talk. And we did it without even holding a Committee
hearing on issues so fundamental to basic precepts and basic
rights under our system of Government.
I am glad to see our witnesses today. I am glad to see my
friend Seth Waxman, a former Solicitor General. When we adopted
the current version of the bill in October, it was claimed that
this version addressed, or at least substantially addressed,
all the concerns that Mr. Waxman had raised, and I do not
believe that is the case. I will let him speak for himself on
it.
This version has a number of problems. The bill seeks to
impose radical and unprecedented restrictions on the Great Writ
of habeas corpus. I think it injects confusion into settled
law. That only increases litigation. It does not decrease it.
It would eliminate essential protections against wrongful
convictions without making any kind of provisions for claims of
innocence.
If it is passed, it would preclude Federal courts from
enforcing Federal constitutional rights. Just think about it.
It would preclude them. Amazing court-stripping.
The legal community recognizes this. The American Bar
Association calls the bill before us ``a significant setback
for justice.'' Both the U.S. Judicial Conference and the
Conference of Chief Justices, who normally take a pretty
conservative attitude on such things, have expressed grave
concerns with this bill. They have urged further study and
analysis before we start tearing apart the complex edifice that
is Federal habeas law. The State Chief Justices cautioned us
against passing a bill with ``unknown consequences for the
State courts.'' The Judicial Conference reported the vast
majority of habeas cases are already moving expeditiously
through the system. We will hear more from them this morning.
I know the bill has its defenders. But not one defender of
the bill has offered systemic evidence of a real national
problem with Federal habeas corpus under the current, post-
AEDPA regime. This bill I think is a crude, partisan solution
to an unproven and largely non-existent problem, and no amount
of tinkering is going to improve that.
If we want to reform the system, improve the quality,
efficiency, and finality of criminal justice, there is a
different solution. Unlike the SPA, it is a solution that would
solve problems in the criminal justice system before they
arise, rather than complicating the process of responding to
problems via habeas. Unlike the SPA, it is a solution supported
by the legal community and the public at large. And it is a
solution to which the President and both Houses of Congress
have previously committed on a bipartisan basis. It is a
promise we made to the American people--a promise we made--and
I think we have a duty not to renege on that promise.
I speak, of course, of the Innocence Protection Act. We
passed the Act 1 year ago in response to the shameful,
widespread evidence of hopelessly underfunded, too often
incompetent, and even drunk and sleeping defense counsel in
some State capital trials. We did so because we saw only too
well the costs of that systemic failure: innocent men on death
row, and repeated, fundamental violations of constitutional
rights.
The Act established a new grant program to improve the
quality of legal representation. This program would greatly
reduce the risk of error in those cases. It would reduce the
frequency of the most expensive and drawn-out post-conviction
proceedings. If we are truly committed to improving the
criminal justice system, let's not let Congress's check bounce
by failing to fund something that we and the President and the
other body all agreed to last year.
We all agree that the trial should be the main event and
abuses of habeas corpus should not be tolerated. I was a
prosecutor. I believe that very strongly. But let's remember
the trial process itself is flawed and it will remain flawed if
we continue to skimp on essential funding. And wrongful
convictions do occur. As Justice O'Connor has told us, the
death penalty system is so flawed in America today we probably
already have executed an innocent person. So let's not pass
ill-conceived, unnecessary legislation that would only make an
unacceptable situation far worse.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Leahy.
Our first witness is--
Senator Kyl. Mr. Chairman, might I, as a matter of personal
privilege, ask Senator Leahy, if I heard him correctly, that he
described my legislation as a ``crude, partisan solution.'' Is
that what you said, Senator Leahy?
Senator Leahy. I believe this legislation is, yes. I
believe this legislation is not addressing--especially after we
passed the Innocence Protection Act--
Senator Kyl. The question is whether you said ``crude,
partisan solution.'' If so, I resent that, Mr. Chairman and
Senator Leahy. I have tried to work in a bipartisan way. We
have taken 6 months now. I have worked with the Chairman. We
have tried very hard to do something that responds to a real
problem here, and I think that we ought to be discussing this
in a sensible, careful, constructive way, and not turn it into
some kind of a partisan attack and get into name-calling.
Senator Leahy. What I said was--let's put it all in
context. I said that I know the bill has its defenders, but not
one defender of the bill has offered systemic evidence of a
real national problem with Federal habeas corpus under the
current, post-AEDPA regime, and the bill remains a crude,
partisan solution to an unproven, largely non-existent problem,
and no amount of tinkering will solve that.
I have a great deal of respect for the Senator from
Arizona. We have worked together on a number of issues. My
feeling about this bill remains the same.
Chairman Specter. Senator Kyl, would you care to respond
further?
Senator Kyl. Mr. Chairman, I will just note that there are
organizations that believe that this is a proper response to a
Federal problem. The National District Attorneys' Association
at their national convention recently endorsed generally this
legislation, and there are others. And I will put a statement
in the record, with your approval, that--
Chairman Specter. Without objection it will be made a part
of the record.
Senator Kyl [continuing]. Represents some more recent
evidence of this phenomenon than was presented at the first
hearing that we held.
Chairman Specter. Thank you, Senator Kyl.
We now turn to Deputy District Attorney Ronald Eisenberg of
the Philadelphia District Attorney's Office. He is the head of
the Law Division, which has responsibility for direct appeals,
post-conviction matters, Federal litigation, and legislation.
He comes from a very busy office which has hundreds of
homicides, 500 during my tenure there some time ago; tens of
thousands of cases, 30,000 during my tenure some time ago; and
is very experienced, of necessity, in habeas corpus matters.
Mr. Eisenberg, we thank you for coming back again, and to
the extent you could focus on the length of time and the time
lapses occasioned by the matters being referred to the Federal
court and being remanded because of the failure to exhaust
State remedies, and another round in the State courts, as to
how long that takes, and then back to the district court, in
the Eastern District and the Third Circuit, we would be
appreciative.
STATEMENT OF RONALD EISENBERG, DEPUTY DISTRICT ATTORNEY,
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA
PENNSYLVANIA
Mr. Eisenberg. Mr. Chairman and members of the Committee,
thank you for the opportunity to testify before you today.
I am the supervisor of the Law Division in the Philadelphia
District Attorney's Office. We handle now hundreds of Federal
habeas corpus petitions each year, although many of those drag
on in litigation for several years, and many in crimes that
occurred when I first joined the office 24 years ago.
I would like to address some of the challenges that have
been raised to the Streamlined Procedures Act. I am aware of
the view preliminarily that the Federal habeas corpus review
process is not in need of reform, that problems, if any, are
localized in jurisdictions like the Ninth Circuit Court of
Appeals.
Of course, the Ninth Circuit is quite a large locality and
worthy of Congressional attention in and of itself, but it is
by no means unique when it comes to the gyrations imposed by
current Federal helicopter practice.
My experience has been in the Third Circuit, where we face
almost exactly the same issues as my colleagues in States such
as Arizona and California. I also serve on the board of a
national capital prosecutors organization, and I meet regularly
with lawyers from all over the country. We are all fighting the
same habeas battles--over procedural default and exhaustion and
filing deadlines and certificates of appealability and a dozen
other habeas concepts that ought to be straightforwardly
resolved but seldom are.
Most habeas questions never reach the Supreme Court, so
when circuit court decisions slow down the application of the
habeas statute, we are generally stuck with them.
Now, I am aware of the argument against habeas reforms
that, to the extent problems exist in the administration of the
statute, they are limited to the litigation of capital cases.
But that, again, is not my experience. To be sure, capital
habeas litigation consumes a hugely disproportionate share of
habeas resources, and it is the engine that drives the
development of convoluted, circuitous application of the habeas
statute. Once these extra-statutory interpretations are
developed, however, they cannot be confined to the capital
context.
For example, the doctrine of stay and abey, which was
developed by the courts to deal with eve-of-execution cases,
where the defendant wished to go back to State court and raise
new claims without jeopardizing his Federal habeas corpus 1-
year filing deadline. The Supreme Court has recently attempted
to place some limitation on stay and abey, but now that the
procedure exists, it cannot be restricted to capital cases. Any
defendant, capital or non-, is free to engage in such stay
litigation; and if he is successful, he can put his habeas
petition on hold indefinitely while he files yet another appeal
in State court. This will usually be at least his third appeal
in state court, all the while holding his Federal habeas
petition.
Now, of the arguments against habeas reform perhaps the
most ironic to me is that we do not need any more because AEDPA
has fixed everything. The reasoning is that AEDPA, when it was
originally enacted, disrupted settled law and required years
for the courts to re-establish the status quo. Now that the
statute has been ``shaken out,'' the law is stable again, and
habeas litigation will move along rapidly, unless new reform
upsets the apple cart.
What matters most, however, is how questions under AEDPA
are resolved, not how long it takes to resolve them. Take, for
example, the doctrine of equitable tolling. In AEDPA, Congress
created a 1-year filing deadline for habeas petitions, with
various exceptions spelled out specifically in the statute. The
Federal courts then decided that they could create their own
exceptions that they call ``equitable tolling.''
Now, that equitable tolling as a general principle is well
settled in the circuits, but it would be fiction to suggest
that equitable tolling has, therefore, streamlined habeas
corpus review. Just the opposite is true. There is absolutely
no certainty in application of what was intended as a clear-cut
deadline because at any moment the court might decide to invent
a new equitable tolling exception. And, even worse, these new
exceptions often require extensive factual inquiry in
individual cases. A whole cottage industry of equitable tolling
evidentiary hearings has now been born. Thus was the time bar
transformed from a limitation on litigation into an invitation
to litigate.
AEDPA jurisprudence reveals many similar developments. In
additional to stay and abey, proper filing, and equitable
tolling issues, as I have discussed, we have seen for example,
the growth of inadequacy review to undermine procedural
default, the indulgence of excessive litigation on certificates
of appealability, and the use of claim-splitting and other
means of avoid the statutory deference requirement.
I do not believe that Congress is stuck with these
applications of the original habeas reform effort, and further
legislation is appropriate.
To take just one glaring example, a case that I have been
working on where the crime was committed in 1981, the defendant
was named Mumia Abu-Jamal. It is still on habeas review now.
Four years ago, we filed a notice of appeal to the United
States Court of Appeals for the Third Circuit. We still do not
even have a briefing schedule in that case. We have not been
allowed to file briefs, let alone hold arguments, let alone
await a decision from the Third Circuit.
Thank you.
[The prepared statement of Mr. Eisenberg appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Eisenberg.
Our next witness is the former Solicitor General of the
United States, Seth Waxman, partner at the prestigious firm of
Wilmer, Cutler; an extraordinary academic background, summa cum
laude at Harvard, a 1977 graduate of the Yale Law School, where
he was managing editor--mostly those credentials bring you to
the Supreme Court, Mr. Waxman. I don't know why you are here
only for this hearing.
[Laughter.]
Chairman Specter. Has had numerous awards, they will be
made part of the record, perhaps most notable the FBI installed
him as a permanent honorary agent a few years back.
I don't know if that disqualifies you from testifying, Mr.
Waxman, but on a serious note, thank you for coming in again
and thank you for all the work you have been doing as we have
been laboring with the first substitute and the second
substitute and now this hearing to address all of the issues we
can in the most forthright and direct way we can to make sure
that constitutional rights are not abrogated.
The floor is yours.
STATEMENT OF SETH P. WAXMAN, FORMER SOLICITOR GENERAL OF THE
UNITED STATES, AND PARTNER, WILMER, CUTLER, PICKERING, HALE AND
DORR, WASHINGTON, D.C.
Mr. Waxman. Thank you very much, Mr. Chairman. I am very
grateful for the opportunity to come back. I did make a rash
offer the last time I was here that I very much wanted to work
with Senator Kyl and with you, Mr. Chairman, and the members of
the staff and to get at the data and ascertain the extent to
which there are problems in the system that AEDPA did not
correct or, as I believe may be the case, there are problems in
the system that AEDPA has introduced. And I believe I offered
to charge you the same rate that I was charging for my
testimony last time, and I have faithfully continued that pro
bono representation. And I am very, very honored to be able to
do it. I have met with Senator Kyl's staff. I have met with
your staff. I have met with Senator Leahy's staff.
There is nothing more important that I am involved in doing
than what this Committee is all about right now. I am reminded,
2 weeks ago I went to see that wonderful movie that is out
about Edward Murrow, ``Good Night, and Good Luck,'' about the
bravery of Mr. Murrow during the regrettable period of the
McCarthy hearings. And what struck me most about the film was
the very last scene--I hope I do not have this wrong--where
President Eisenhower is speaking, and he says what is important
about this country, what is wonderful about this is that we
have the writ of helicopter, and the writ of helicopter is
there as a historic safeguard.
And I thought immediately to the hearing that this
Committee had and the work that I have been doing, and it is
why I am looking forward to testifying and answering questions
this morning.
I will spare the previous introduction. I am not a
philosophical opponent of the death penalty. I have recommended
seeking the death penalty dozens of times. I have less patience
with delays than anybody that I know, and I am fully in favor
of expedited proceedings in my professional life and in my
personal life.
I think that the substitute bill that we are looking at now
does eliminate some of the problems that I identified in my
last testimony. I still think that there are provisions of this
law that are very problematic. I don't think in 2 minutes and
30 seconds in my opening statement I will be able to address
them, but perhaps I can explicate them.
I am most concerned about--
Chairman Specter. Mr. Waxman, take the time you need. We
will give you extra time.
Mr. Waxman. I appreciate it. I am most concerned about
Sections 2, 3, 4, 5, 8, and 10. But my overriding concern with
this is I think that this legislation in very large part
represents a good-faith effort to address problems that have
not been documented to exist in any systematic way, and based
on my experience and looking at the data that I have looked at,
do not, in fact, exist in any serious way.
And I wouldn't be as troubled by that alone as I am by the
fact that I know that, if enacted, these provisions will deny
relief and, indeed, will deny access to the courts to people
whose fundamental constitutional rights have been violated,
some of whom are actually innocent.
Now, I will be talking a little bit about innocence in the
course of my remarks because it is a prominent feature in a
number of these provisions. Let me just turn first to Section 4
of the bill, which deals with procedural default.
Procedural default is a doctrine that provides that even if
there is a constitutional violation, if there was an adequate
and independent State ground for the court to rule, that is
sufficient, and Federal habeas corpus courts in an exercise of
federalism don't have the authority to second-guess what the
highest court of the State has said on an adequate State ground
justifies the detention.
There was a doctrine in place for many, many years called
``the deliberate bypass doctrine'' that basically precluded
people, prisoners, from coming to Federal court if they had
deliberately bypassed their remedies in State court. In 1979, I
think it was, the Supreme Court in a landmark decision issued
by Chief Justice/then Justice Rehnquist, Wainwright v. Sykes,
established a very, very high bar to overcome a procedural
default--that is, an instance in which an adequate and
independent State ground had not been availed. And that is the
so-called cause and prejudice test. The cause and prejudice
test of Wainwright v. Sykes is one of the most settled
doctrines in the law, and recognize that in habeas corpus law
there is almost nothing that is settled. It is the most
esoteric--it has become the most esoteric area of the law in
existence.
The cause and prejudice standard, though, is a notable
exception. It is settled. It is very stringent, and it only
allows the most extreme cases through. In my testimony, my
written testimony, I give the example of Strickler v. Greene, a
Supreme Court decision a few years ago where the Supreme Court
found cause--that is, there had been an egregious--there had
been a very good reason for the failure to bring to the State
courts a meritorious constitutional claim, but because the
Supreme Court wasn't satisfied beyond any reasonable--to a
reasonable degree that the constitutional error would have
changed the death sentence, defendant's sentence, it denied
relief. It wasn't enough under cause and prejudice to show that
there was a constitutional violation, and there was very good
cause not to have brought it to the attention of the State
courts. But, nonetheless, he was denied relief and executed.
Now, Section 4--I should say also that the cause and
prejudice standard was so settled and, in my opinion, so
satisfactory to both the community of prosecutors and, I
suppose, the courts, that it wasn't even considered in the
context of amending AEDPA that any change be made in the
procedural defaults rules. There wasn't a procedural default
provision in AEDPA because, in my experience, the procedural
default standard under Wainwright v. Sykes is so stringent that
there aren't any systematic abuses.
Now, Section 4 of this bill does alter the cause and
prejudice standard. It denies Federal courts, strips Federal
courts of jurisdiction of any case in which a State court,
rightly or wrongly, post hoc or otherwise, says that there was
a rule of procedure that was not complied with, except in an
instance in which you can demonstrate not just cause and not
just that the substance of your claim is not only correct but,
if denied, would constitute an unreasonable application of
settled Supreme Court precedent, but also that you can prove on
a going-in basis that you had no involvement in the crime at
all, not simply that you are legally innocent of the crime of
which you were convicted, not simply that you are legally
innocent of any other activity in connection with the crime,
but that a court, but for the error, would have found that you
did not participate in any way in the underlying offense.
Now, let me address first whether there should be a
safeguard for the rare case in which there is an excusable
procedural default. The last time I was here, I discussed with
the Committee the case of Lee v. Kemna. It is described at
length in my written testimony. The court asked all of the
other members of the panel with whom I was sitting whether in
writing they could dispute that the Supreme Court had, in fact,
decided what I decided. And I do not believe that anybody did
dispute it. But that was a case in which in the middle of a
trial in which the witnesses were sequestered, when the defense
lawyer in the middle of the day came to call his witnesses, he
discovered that somebody--likely, the court held, a court
official--told his witnesses, who had come all the way from
California to, I think, Missouri, that they would not be called
that day and they could go home. He then asked for a
continuance until the next day so that he could obtain his
subpoenaed witnesses. The court denied it because the court had
other pressing matters.
He took an appeal, and on appeal, the court of appeals
said, well, that may not have been a sufficient reason, but
there is a rule in this State that all motions be in writing,
and his motion to continue the trial because his witnesses had
gone home was not in writing, and that is an adequate and
independent State ground. And a substantial majority of the
Supreme Court said that that rule, which was applied not at the
request of the prosecution at trial and not by the trial judge
at the time, but by the court of appeals after the fact, cannot
eliminate the ability to get relief in Federal court.
Similarly, another Supreme Court case, Ford v. Georgia, the
rule that was allegedly defaulted was announced after the
alleged default took place. Amadeo v. Zant, which I also
discussed in my written testimony, a case in which there was
deliberate, despicable misconduct by the State prosecutor with
respect to the jury pool that was concealed, that was not
revealed until discovery many years later in Federal court,
there was a procedural default in that case because the claim
was not raised in State court because it had been concealed. I
do not believe that it is consistent with the Writ to strip
Federal courts of jurisdiction to consider cases like that. And
I particularly think that it is inadvisable in the absence of
any demonstration that there really is a systemic problem with
the cause and prejudice standard.
Now, the innocence prong of this, the innocence exception
that this substitute legislation includes, as I said, requires
that you show up front not only that you have a claim so
meritorious that denying it would be unreasonable in light of
settled Supreme Court precedent and that you had sufficient
cause not to have brought it to--not to have complied with the
State rule, but that you had no involvement in the underlying
offense. And I want to just spend a minute to express my
understanding of what exactly that means.
First of all, it means that there would be no sentencing
errors at all ever considered by a Federal court in the context
of one of these procedural defaults, whatever caused it, and
that is because if the constitutional error related to the
sentence, that, ipso facto, deprives you of the ability to show
that you had no involvement whatsoever in the underlying
offense.
Now, it may well be that we as a society have little
sympathy for claims about whether a sentence was too long or
not too long, or too long because of constitutional error. But
a fundamental premise of our capital punishment system is that
not everybody who is guilty of a crime deserves to be executed.
We have a whole edifice that the Supreme Court has said the
Constitution requires to separate out among those premeditated
murderers those who are, as the court has said, ``the worst of
the worst.'' And yet there would be no sentencing claims
allowed under Section 4 because you need as a threshold matter
to prove that you had no involvement in the conduct that formed
the basis of the crime.
A good example would be, let's say, the prosecution seeks
the death penalty against somebody under Edmonds v. Florida
because they were the trigger man of a cold-blooded murderer.
And Edmonds says that if you are actually the trigger man, you
can get the death penalty.
Well, let's assume that there is egregious Brady violation
that is discovered, as was the case in Banks v. Dretke, decided
by the Supreme Court 2 years ago, in Federal court because the
evidence had been concealed by the prosecutor in State court,
which did not order discovery. So you come to Federal court,
you are in Federal court, and you say, look, there is
irrefutable evidence that was in the prosecutor's file that I
did not pull the trigger, but you cannot prove that, consistent
with principles of felony murder, that you either were not
there or out in the getaway car or something like that, you
cannot get that--you cannot get in the door. The Federal court
does not have jurisdiction to consider that claim.
Now, let's look at guilt/innocence, which is, you know,
after all, the main event here. Innocence claims do not arrive
in Federal court as fully formed claims of actual innocence.
What happens is that the fear here is and what habeas corpus
protects is instances in which there is something fundamentally
unfair, not just somewhat unfair but constitutionally unfair in
the procedures that took place. There are instances, there are
many instances in which as a result of those fundamentally
unfair procedures, innocent people are convicted even though
they do not have fully formed proof of their innocence at the
outset.
There are many, many instances in which in Federal habeas
corpus and in State habeas corpus prisoners prevail on claims
of fundamental constitutional violations and are thereafter,
when the violation is corrected, acquitted or exonerated. There
was a report in yesterday's newspaper about a case in
Philadelphia in which this happened. But looking at reported
cases, Kyles v. Whitley, which I mentioned in my testimony,
there was--in Federal court it was discovered that there was an
egregious Brady violation with respect to the testimony of the
prosecution's main witness. The writ was granted. He was
retried. Three times the prosecution failed to obtain a
conviction when--
Chairman Specter. Mr. Waxman, how much longer do you think?
Mr. Waxman. I can be shut off at any time, Mr. Chairman.
Chairman Specter. No, I do not want to. I think what you
said is very informative, and you are still on Section 4.
[Laughter.]
Mr. Waxman. I want to go back to Section 2 and 3.
Chairman Specter. Well, I think you made a pretty good case
as to Section 4, and I would urge you to move to a new section.
But you spent a lot of time with staff and you have a lot to
say, and I think we want to hear it.
Senator Leahy. Mr. Chairman?
Chairman Specter. But we want to get some idea as to how
long it will take.
Senator Leahy. Mr. Chairman, I just wonder, if I might, as
I am listening to this, I reread my statement, and I think the
Senator from Arizona makes a good point. This is probably going
to ruin his reputation back home if he finds out that I might
agree with him on something. I would change my sentence to
read--and ask consent to change it in the statement so that the
statement reads, ``This bill remains a solution to an unproven
and largely non-existent problem, and no amount of tinkering
would solve that''--which is my feeling. I would strike the
words ``crude and partisan.'' The Senator from Arizona is
correct.
Senator Kyl. I appreciate it.
Chairman Specter. Thank you for that, Senator Leahy.
Mr. Waxman. Mr. Chairman, I will just take a few minutes on
each of the remaining sections, and I invite questions. I am
really only here to answer the Committee's questions, not to
make a stump speech, and I realize that--
Chairman Specter. It is not a stump speech. It is very
profound, and you are obviously very knowledgeable, and it is
very helpful.
Senator Leahy. Trust me, we know stump speeches up here.
[Laughter.]
Mr. Waxman. My daughter was very fond of saying, before she
went off to be an undergraduate at the University of
Pennsylvania, her stump speech was that there is nothing more
dangerous in this country than her father in front of a
microphone without a red light.
[Laughter.]
Mr. Waxman. Which is what they have in the Supreme Court
that tells you to stop. I was, you know, very respectful of the
timer in front of me until the Chair gave me permission that he
probably did not realize would have such a dramatic effect. But
let me just trip through my objections on--my concerns about
the other provisions.
Chairman Specter. Go ahead.
Mr. Waxman. And then solicit questions.
Much of what I had to say about Section 4 on procedural
default is also the case for Section 2 on exhaustion of mixed
petitions. In my written testimony, I went through how the
exhaustion doctrine is one of timing and not one of extinction
or not one of preclusion, but this exhaustion remedy does
change that.
In a perfect world, all constitutional claims would be
raised in State courts before they go to Federal court. That is
the comity rule that the exhaustion doctrine respects. And in
very large part, the existing doctrines with respect to
requirements for exhaustion and the requirement that mixed
petitions be dismissed has enforced that rule, but we do not
live in a perfect world. We have to have a failsafe for those
instances in which there is a darn good reason why there has
not previously been exhaustion.
We have a world in which many, many, many, many, many
prisoners appear pro se. Many of them who do not appear pro se
have lawyers that can only be charitably called incompetent. We
have instances--Brian Stevenson was here last time talking
about instances in which State courts on post-conviction have
refused to rule for years and decades. And we have instances,
regrettable but documented, in which an errant prosecutor will
stonewall legitimate discovery requests, the State court will
not order it, and like in Banks v. Dretke, the information only
comes out in Federal court.
And there are plenty of instances--Mr. Eisenberg talked
about stay and abey and how it is abused. Well, first of all,
the Supreme Court just decided a case this year, Rhines v.
Weber, that puts very stringent restrictions on the ability to
go back and exhaust unexhausted claims. And we have not seen--
there is no reason to think that that will not solve whatever
problem exists. But more to the point, there are many instances
in which it is the State, not the defense, that in the instance
of an unexhausted claim, with good cause, the State refuses to
waive and insists that the prisoner go back into State court
and exhaust. And in Pennsylvania itself, the case of Aaron
Jones, which Mr. Dolgenos testified about last week at the
House Judiciary Committee hearing, and the Brinson case, which
I can discuss in detail and I am sure Mr. Eisenberg is familiar
with, are instances in which, in one case a Brady violation, in
another a Batson violation, came to light while in Federal
court. The defense in the Jones case by defense counsel and in
the Brinson case by a pro se prisoner implored the prosecution
and the Federal court not to send them back to what the
prisoner in Brinson called ``the morass'' of the State post-
conviction proceedings, but just address the merits. And in
both instances, it was the prosecution that insisted on stay
and abey so that there would be exhaustion.
But, in short, I don't think that there is, particularly in
light of Rhines v. Weber, a significant problem or a problem of
any dimensions at all with abuse of the existing law on the
exhaustion requirement on mixed petitions, and all of the
things that I said about the no-involvement standard of
innocence, proof requirement up front, also apply here.
Chairman Specter. Mr. Waxman, are the other sections
covered in your written statement?
Mr. Waxman. Yes, they are.
Chairman Specter. I think we will move on then. Thank you
very much for that.
[The prepared statement of Mr. Waxman appears as a
submission for the record.]
Chairman Specter. We are going to come back to you, Mr.
Eisenberg, before questions to give you a chance to offer any
comments or rebuttal to what Mr. Waxman has said.
Our next witness is Judge Howard McKibben from the District
of Nevada, appointed to the Federal bench in 1984, had served
on the State court for 7 years before that, was a district
attorney, a very outstanding academic record.
Thank you very much for joining us, Judge McKibben, to
testify on behalf of the Judicial Conference.
STATEMENT OF HOWARD D. MCKIBBEN, SENIOR UNITED STATES DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA, AND CHAIRMAN, COMMITTEE ON
FEDERAL-STATE JURISDICTION, JUDICIAL CONFERENCE OF THE UNITED
STATES, RENO, NEVADA
Judge McKibben. Thank you very much, Mr. Chairman, Senator
Leahy, and members of the Judiciary Committee. It is always a
little daunting to go after someone like Seth Waxman. I must
say, in court I am always delighted to have attorneys like Mr.
Waxman appear. It makes the judge's job a lot easier when they
can articulate issues as clearly and concisely as he does, and
so I am delighted to join this panel.
I will make my remarks brief, and I would ask that a copy,
Mr. Chairman, of my remarks be made a part of the record.
The Judicial Conference Committee on Federal-State
Jurisdiction, which I chair, is one of the few committees of
the Judicial Conference that includes State court judges as
members. We have four chief justices of the supreme courts on
our committee, and they have provided substantial input in
connection with the issues that have been raised in the bill
that is before you.
Our Committee serves as a conduit for communication of
matters of mutual concern between the Federal and State courts,
and I have a special affinity for State courts, having formerly
been a State trial judge and a State prosecutor.
Let me say to the members of the Committee, the judiciary
hears your concerns about delay in processing some habeas cases
in the Federal courts. We support the elimination of any
unwarranted delays in the fair resolution of habeas cases by
State prisoners in the Federal courts. And, Senator Kyl, I know
that you have provided the Committee with information that
shows that some cases, capital cases, have been pending in the
Federal courts for a significant period of time. Our
preliminary statistical data--and we have requested that--does
not appear to show a significant delay in the processing of
non-capital cases. The information with respect to capital
cases is, at this point, what I would call inconclusive and
does, in fact, suggest the need for further analysis.
As you know, the Judicial Conference has urged in previous
communications to this Committee that a careful analysis be
undertaken to determine if, in fact, there is any unwarranted
delay and, if so, the causes of such delay before Congress
further amends the habeas corpus statute. And I would indicate
that it is very difficult--having handled capital cases and
non-capital cases over the years I have been on the Federal
bench--it is very difficult to take the statistics and look at
them and say it took X number of months or X number of years to
resolve this case and know what actually happened in the case
as to whether or not what, in fact, happened was reasonable.
Was it a reasonable period of time? Were there reasons for the
delay and the ultimate disposition of the case? And that
requires a fairly systematic review of those cases to make that
determination.
Second, the Judicial Conference opposes provisions in the
Streamlined Procedures Act that would shift from the Federal
courts to the Attorney General the decision for determining
whether a State has met the requirements to opt in to the
provisions of Chapter 154, those provisions that would impose
specific time deadlines on the courts of appeals for deciding
habeas petitions, those provisions that would change the
procedures by which the Federal courts consider applications
for expert services, and those provisions that would apply the
provisions of AEDPA and the Streamlined Procedures Act
retroactively.
Third, with respect to limiting Federal court review of
habeas claims, in September of this year, as you will recall,
the Conference expressed its opposition to certain provisions
of S. 1088, as adopted by the Senate Judiciary Committee in
July, that have the potential to undermine the traditional role
of the Federal courts to hear and decide constitutional claims,
with appropriate deference to State court proceedings, and to
prevent the Federal courts from reaching the merits of habeas
corpus petitions by adding procedural requirements that would
complicate the resolution of those cases and, in the opinion of
the Conference, lead to protracted litigation.
We recognize that this Committee has continued to make
changes in the legislation through the adoption of a second
substitute amendment in October. We are, however, concerned
that the legislation may still limit Federal court review of
meritorious constitutional claims inappropriately.
Fourth, the October substitute recasts the cause and
prejudice standard defined and developed by the Supreme Court--
and as Mr. Waxman has eloquently indicated to you, that is an
extremely well-settled doctrine in our jurisprudence, which we
rely on all the time. And that has been in existence, I think
for about 27 years, 28 years. And it recasts the cause and
prejudice standard in mixed petitions, procedurally defaulted
claims, and amendments to claims in a manner that we have not
seen before. These revised standards have never before applied
in this manner. They create complexity and could further delay,
not expedite, the resolution of Federal claims. And I think
that is an important point. Complying with such standards may
be even more problematic in cases where the applicant did not
have counsel in the State post-conviction proceeding.
Now, the October substitute would redefine prejudice, as we
understand it, as a ``reasonable probability'' that, but for
the alleged error, the fact finder would not have found that
the applicant ``participated in the underlying offense.'' The
reference to the underlying offense changes the focus of the
traditional role of habeas from whether an error infected the
entire trial, with error of constitutional dimension--and not
every error clearly would be cognizable, but those that infect
the entire trial with error of constitutional dimension are--to
whether the error would cast doubt on the claimant's
participation in the underlying offense; not just if the
individual is guilty of the underlying offense. Constitutional
errors that affect whether a person should be sentenced to
death may not be reviewable under such a standard because such
errors may have no bearing whatsoever on whether the applicant
participated in the underlying offense.
There is a similar concern with the modification of the
actual innocence standard. As with the revised cause and
prejudice standard, this provision could foreclose review of
sentencing errors, and it appears that it would and, thus, is
inconsistent with Conference policy.
Fifth, the October substitute takes the restrictive
standards of Section 2254(e)(2) and for the first time, as we
understand it, uses them to limit a person's access to Federal
court review of unexhausted and procedurally defaulted claims
and amendments to petitions in capital cases under Chapter 154.
And, finally, AEDPA already sets a very high bar when
Federal courts consider claims that a habeas petitioner failed
to raise in State court, and, as such, appropriately recognizes
the deference that Federal courts should give to State court
proceedings. In just the past 3 years, the Supreme Court has
considered over 19 cases addressing issues raised by the
passage of AEDPA, and that is a very large number of cases for
the Supreme Court to consider and decide. Nine of those
decisions were handed down this past year. Only now is the law
becoming somewhat settled with respect to AEDPA. If Congress
substantially revises the procedures in habeas corpus cases,
there is a concern that it most certainly would invite a new
round of litigation on statutory and constitutional issues,
complicating and protracting, not expediting, we believe, the
consideration of habeas petitions in Federal courts.
In closing, Mr. Chairman, I thank you for the invitation to
address the Committee. I know that the members of the Committee
and the judiciary share a common goal to preserve and protect
the fundamental fairness and integrity of our criminal justice
system. I thank you very much for your time.
[The prepared statement of Judge McKibben appears as a
submission for the record.]
Chairman Specter. Thank you very much, Judge McKibben.
Mr. Eisenberg, would you care to offer some additional
comments at this time in response to what either Mr. Waxman or
Judge McKibben said.
Mr. Eisenberg. Thank you, Mr. Chairman. Just a couple of
points, if I may.
The argument is made that the existing cause and prejudice
standard for procedural default is so settled and so
satisfactory that Congress did not even consider a need to
address the issue when it passed AEDPA. And it is true that
AEDPA does not address that issue.
The problem is what has happened since AEDPA. Since AEDPA
tightened up on other aspects of habeas review, cause and
prejudice and procedural default has been used as a means of
essentially circumventing those limitations.
Now, as to the cause and prejudice standard itself, our
problem is that we cannot even get to it in some many cases
because the doctrines in habeas corpus allow the Federal court
first to decide under the label of ``adequate and independent''
whether the State court rule should be given any effect at all
in Federal court. And unless and until you pass that threshold,
the court in Federal habeas review does not even have to
consider cause and prejudice. So that is our initial roadblock
and one of the main things that the current legislation
addresses, is the power of the Federal court to simply throw
out the State procedural rule without any reference to cause
and prejudice, to simply say it does not count. And when the
court says that, it is not just for that case. It is for all
cases to which that rule might apply.
We have in Pennsylvania, for example, enacted a post-
conviction review statute that had some similar provisions to
the AEDPA. We did it around the same time, guided in part by
the provisions in AEDPA, and we imposed a 1-year deadline for
filing State post-conviction petitions. We made it clear at the
beginning of the statute that it applied to all cases, capital
and non-capital cases.
The Third Circuit has held that that statute was not an
adequate ground for finding petitions filed more than a year to
be untimely, and the reason it was not is because the statute
did not specifically--the courts had not yet said whether that
statute really meant what it said or whether the courts might
create exceptions to the statute along the lines of some of
their previous court-made doctrine.
So even a statute whose words were not in any way in
dispute, whose words were clear on their face--there was no
dispute from the Federal court about the clarity of the
language or the consistency of the application, once the issue
reached the State courts, even that statute was not considered
to be an adequate ground for a default because the Federal
court said, well, there was all this time before the State
courts first started interpreting it, and, yes, once they did,
they applied it exactly as it was written, and they have
consistently done so ever since; but, hey, how were we supposed
to know what they would do until they addressed it?
And so no procedural default there for an entire class of
cases. All capital cases for several years--we do not know how
many yet--for several years after the statute was passed, which
were defaulted in State court because they were found untimely,
are now being allowed review in Federal court, which will mean
complete review, no deference standard to the decisions in
State court because the State courts did not reach the merits.
They applied their statute and found those cases time-barred.
The Federal court is now going to get to review those cases
despite the default.
Now, when we get there and they apply that default, of
course, it is going to apply to all sorts of claims. The
argument has been made that the new statute will limit cause
and prejudice to prejudice going to the underlying offense.
Well, that is the argument that we keep hearing about the need
for expansive Federal habeas corpus review, that we have to
protect innocence. And, clearly, this standard does so.
But let's keep in mind when it comes to considering
limitations to the cause and prejudice standard and the
innocence provision of those exceptions that we are talking
about cases that were supposed to be defaulted to begin with.
We are not saying that you cannot raise constitutional
violations in Federal court. We are saying you have to follow
the rules to do so. And the question in this area is the
breadth of the exceptions that we will make if you do not
follow the rules.
The argument essentially is being made that we cannot limit
those exceptions, that even if you default your claims in State
court, even if you try to get into Federal court through one of
these exceptions, you should have essentially as broad review
as if you had not defaulted your claim in State court. And that
is not going to ensure any sort of compliance with the
procedural rules that the habeas corpus statute establishes and
that the courts have been developing for decades, even before
AEDPA was passed.
There have to be narrower standards for the consideration
of claims that are not really properly before the Federal court
at all than for those claims that are in order to hope for any
sort of compliance by the petitioner in State court with the
rules that we are entitled to apply. The Federal courts have
their procedural rules, we have our procedural rules, and they
are entitled to deference in Federal court as well. And I think
that that is what the case law and what this legislation tried
to establish.
Let me speak very quickly to the Rhines point because I
think that is a significant one, the recent case concerning
stay and abey.
The Supreme Court, because it is a court and not a
legislature, established in Rhines exactly the kind of
amorphous judicial standard that invites rather than limits
further litigation. The lower courts are now going to have to
go back and look at what Rhines said and they are going to have
to decide, well, what is good cause in a particular case, what
are the underlying merits of the claim, and a whole body of
case law will be developed, and even once it is developed,
there will still be litigation about the application of those
amorphous standards to the facts of individual cases. That is
exactly the kind of problem that we are talking about, is the
existence of these kinds of generalized standards that require
years, add on years to the process of litigating these claims.
I would like to look in that respect at the bottom line
with reference to the statistics that Judge McKibben mentioned
from the Administrative Office of United States Courts. He
referred to statistics that I believe are mentioned on pages 2
and 3 of the attachment to the letter that was filed with the
Committee by the Judicial Conference in September of this year,
and those statistics shows that over the last 6 years, the time
to dispose of a capital case on Federal habeas corpus review
has increased--increased--by 50 percent just over the last 6
years, and it has nearly doubled in the district courts. The
time from filing to disposition in the district courts went
from 13 months in 1998 to 25.3 months in 2004, and the time
from filing of the notice of appeal to disposition of a capital
appeal in the Federal courts of appeal went from 10 months in
1998 to 15 months in the year 2004.
Now, I cannot vouch for the accuracy of those statistics,
but I can certainly tell you that they are consistent with my
experience and with the experience of my colleagues and that
they show that the problem is not getting better as the result
of AEDPA, as Congress intended. It is getting worse.
The statistics also refer to delays in non-capital cases,
and the point is made that according to those statistics, the
disposition rates for non-capital cases have not increased in
the way that they have for capital cases. What those statistics
also show, however, is that the disposition rates for non-
capital cases have not decreased despite AEDPA, despite the
reforms that Congress put in place 10 years ago, there has been
no movement, even in the disposition rates for non-capital
cases.
Now, AEDPA was supposed to help speed things up.
Significant new provisions like the time bar, if fairly applied
I think, should have reduced disposition times even for non-
capital cases--
Chairman Specter. Mr. Eisenberg, how much more time do you
think you need on this round?
Mr. Eisenberg. Thank you for the opportunity, your honor,
and that would be my last sentence. That times are increasing
for capital cases, not decreasing for non-capital cases.
Chairman Specter. Thank you very much. I am going to yield
my opening round of questions. Senators have 5 minutes to
question. I am going to yield my opening round of questions to
Judge Kyl, and then we will come to Judge Leahy for 5 minutes,
and then we will go back to Judge Kyl for five minutes.
[Laughter.]
Senator Kyl.
STATEMENT OF HON. JON KYL A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman. I am still enough--
Chairman Specter. I am just trying to promote you a little.
Senator Kyl. Yes, and I appreciate that. I am still enough
in awe of judges, I begin by, ``May it please the Court.''
I want to begin by saying thank you, Mr. Chairman, for
holding this hearing and for all of your cooperation and your
staff's significant cooperation as well. They have spent
hundreds of hours on this.
To all three witnesses, very much appreciate your being
here, and particularly, Mr. Waxman, with I suspect what you
charge per hour. I was moved by your point at the beginning of
your testimony that this is important work and you are willing
to devote your abilities to this work. I appreciate that very
much. For somebody like Mr. Eisenberg on the front lines of
this battle to relate to us the kind of experience that you
have I think is very, very important to our deliberations.
Obviously, we have started a great debate here and I think
it is a debate worth having. I think the fact that the debate
has occurred has made the legislation better. I still think we
have a problem to address, and in the relatively brief period
of time that I have, I would like to begin with that, but
preliminarily to make this general observation. It seems to me
that what we have started here is a debate about those on one
side who are really reluctant in any way to reduce the
potential impact of a habeas petition on the one hand, and
those on the other hand, Mr. Eisenberg, represented by what you
characterized as your bottom line here, which is that because
of the delays and the difficulties in dealing with all of these
habeas positions, there has to be a difference between those
cases in which the procedural rules in the State courts have
been complied with and those that have not, and if that is the
intent of our legislation here, to draw that distinction and
try to speed that process. We had tried to do it in AEDPA, and
I think the point is that with respect to capital cases at
least the situation has gotten a lot worse. That is really what
I would like to begin with and then ask for your comments.
We have adduced evidence in previous hearings and in
written submissions that relate nationally, but I just wanted
to have you consider what the Arizona Attorney General's Office
came up with since our last hearing. These are primarily
capital case statistics, so they relate to our most serious
issues.
The Arizona study examined the appeals of all of the
prisoners currently on death row, over 100. There are 76
capital cases pending in Federal Court, which represents over
two-thirds of Arizona's pending capital cases. And although
some were filed recently, over half of the cases have been
pending in Federal Court 5 years or more. This is in Federal
Court now. Of those, 13 cases have been pending for 7 years; 10
cases have been pending for 8 years; five cases have been
pending for more than 15 years. I suspect that all of you would
agree that that is far too long, that that suggests that
something has to be done, not only for the citizens who have to
pay for all of this, and the judges whose time it takes up, the
prosecutors who are dealing with it, but also the victims.
The study of the Arizona Attorney General's Office further
found that only one of the 63 Arizona death penalty cases filed
under the AEDPA standards has moved from Federal District Court
to the Ninth Circuit, only one. That case has been in the Ninth
Circuit for over 5 years. 28 of Arizona's capital cases have
been pending in District Court for between six and 8 years. One
of the Arizona death penalty cases has been on Federal habeas
review for over 19 years. There is no justification for that.
Two of the cases for over 18 years, one for over 16, one for
over 14, another for over 12. Clearly there is a problem, so I
think we have to decide how are we going to try to address the
problem.
Now, AEDPA tried to set up a method by which States, if
they provide a lot of resources and good counsel, could
presumably get around one of the issues which was the lack of
good counsel, and therefore, could be held to a higher
standard, and to compliance with State procedural rules. I
would appreciate your views as to whether that general approach
is generally a good approach? Is that an approach worth working
on?
Mr. Waxman, in that context, I think you may have misspoken
slightly. You said that AEDPA did not seek to change Wainwright
because it is so subtle, but in fact, Section 154 does adopt a
more stringent test, does it not? In other words, that is what
we are trying to get at, is if you really provide good counsel
and other resources, then we are entitled to provide some
limitations, some speedier access to the courts.
I will just ask all of you to comment on what I have said
here since I am done with this first 5-minute presentation.
Please, all of you take a crack at what I have just said, which
will enable you to also talk about anything else you probably
wanted to talk about, starting, Judge McKibben, with you, and
then Mr. Waxman and Mr. Eisenberg.
Judge McKibben. Thank you, Senator Kyl. I appreciate the
concern that you have expressed about the cases in Arizona. I
know that there are cases in other districts where they have
been on the dockets for a substantial period of time. This
bill, as I understand it, addresses all habeas, capital and
non-capital cases. As I indicated earlier--and the Conferences
looked at this--there is no indication in the non-capital cases
that there is any significant delay. I have heard Mr. Eisenberg
refer to the fact that there should be a decrease, perhaps
since AEDPA, in the time on non-capital cases for disposition,
but an average 6-month turnaround time on non-capital cases is
about as short a time as you are going to have in the Federal
Court from the time of a filing. If the case is one where
counsel will be assigned, to have the State come in, usually
with some continuances and request an additional period of time
to file a response, and for the Court then, if there is any
discovery--normally you would not have discovery--but if there
is some discovery, to dispose of a case like that on average in
6 months is even a faster disposition of the case than you
would have in virtually all of your other civil cases.
So it does not appear, when we look at the statistics, that
there is any problem with respect to the timely disposition of
cases when they are non-capital cases. And yet this bill
applies to the non-capital cases too and sets some very severe
restrictions on how a non-capital defendant is able to secure
any relief, even in the sentencing area. Certainly if there are
substantial problems in the trial process or selection of
juries, then not being able to enter the Federal Court unless
you meet this very high standard of showing that the factfinder
would not have found the defendant participated in the
underlying offense is a significant problem.
Putting that aside and addressing the capital cases, the
preliminary data that we have suggests, at least in some
districts in the country, that there should be a systematic
analysis of what caused delay. You cited one case that lasted
for around 18 years without being disposed of. I do not know
what the facts or circumstances of that case are. It would have
to be analyzed. I know there are cases where people have been
determined to be incompetent. That case remains on the court
docket. It is not a closed file until there is ultimately a
disposition, and you would not have a disposition if the
individual is incompetent. I have no way of knowing if that is
that particular case, but there are reasons why cases can
remain on the docket a relatively long period of time. The
Conference is recommending--and I think it is a prudent
recommendation--that there be a study to determine whether
there are systemic problems in our system or if there are some
isolated cases which require better case management by the
judge that handles the case.
That basically, Senator Kyl, would be my response to the
question. Until that study is undertaken and the facts are
determined on an individual basis in those cases--and I think
we can isolate those cases, whether they amount to 100 cases
throughout the country or whatever, and closely analyze them
and see the reasons for the delays--we can't draw any
conclusions. Many of those delays are as a result of the case
going back to State court for exhaustion.
Senator Kyl. Mr. Chairman, since I have the next round, and
I do want you to go ahead and run the clock and so on so I do
not take too much time, but could I do a quick followup just on
that last point?
Chairman Specter. Certainly.
Senator Kyl. Our bill sets only two limits. One is a 300-
day limit on issuing Court of Appeals opinion after briefing is
done, and then a 90-day period to rule on a petition for
rehearing in the Court of Appeals. Are those periods
unreasonable in your view?
Judge McKibben. The Conference has consistently taken a
position that time limits should not be established.
Senator Kyl. So no time limit would be reasonable then.
Judge McKibben. I would not say that no time limit is
reasonable. In the statute you already have provisions for
expeditious consideration of habeas cases, and the court
obviously considers those to be important cases.
Senator Kyl. Thanks.
Mr. Waxman.
Mr. Waxman. Thank you very much, Senator Kyl.
I have never seen, or for that matter heard of the Arizona
study. The statistics you cited were quite interesting, and on
their face quite perplexing and troubling. For me the question
that I really have is, why? What is it that is causing these
cases to lag in State courts or in Federal courts, both the
trial courts or the appellate courts.
Senator Kyl. Excuse me. By the way, I will get that written
study to all of you so you can take a look at it.
Mr. Waxman. Very much appreciated. But I want to make a
couple of points. First of all, the statute of limitations
provision that AEDPA introduced, and Mr. Eisenberg referred to,
and most of the provisions of the law that we are considering
now, Section 2 and Section 4, for example, do not deal with how
long cases pend in State courts or Federal courts. They talk
about what claims Federal courts will be able to hear and how
soon you have to get to Federal court, but they do not address
the problem of lapses of time either in State court and Federal
court, and you could have--and some partisans on each side have
engaged in sort of a tit-for-tat debate about, well, you know,
there is one State court case where there is a totally innocent
guy and the State court has refused to rule for two decades.
Brian Stevenson had some of them. There are other cases where
we have heard about a Third Circuit case--I have forgotten the
case, Abu somebody or other--where the Third Circuit just has
not ruled in--there is not even a briefing schedule.
We have a very large system and there are always going to
be cases where delays are perplexing and inexcusable. The
question is, is there a systemic problem, and if so, what is
it? Now, if the problem is lapses of time in State or Federal
courts, that ought to be addressed. It ought to be addressed
either with rigid limits or with some sort of flexible limits
or presumptions to get the courts to give the kind of priority
that the Congress concludes these cases should have, with a
reporting requirement to the Administrative Office if it is not
decided, or to the Chief Judge, or something like that. But
rules about procedural default and exhaustion and things of
that nature do not address at all how long things take in
court. In fact, they extend the amount of time that things take
in court.
I mean you have now provisions in this law that--I will go
to the question of what the study shows about the length of
time that Mr. Eisenberg was referring to. As Judge McKibben has
explained, just in the last few years the Supreme Court has
decided 19 cases interpreting resolving interpretive
difficulties in AEDPA. While each one of those cases was
proceeding, the lower Federal courts basically held their
cases. The supreme courts granted cert on a question about what
this language means and does not mean, and for the most part,
those cases sat in the lower Federal courts until the Supreme
Court decided it.
So the period of time that the Administrative Office
studied was a period in which there were almost two dozen
provisions of AEDPA that were being--whose meaning was
filtering its way through the Federal courts and was being
resolved by the Supreme Court. I could go through this proposed
legislation and identify phrases or tests or standards that are
applied, for example, you know, under Section 5. The tolling
provision relates to a properly filed State court petition.
I do not mean to be a cynic, but I am rapidly approaching
you 54th birthday and I have been in the practice of law a long
time. There will be enormous litigation over the application of
that new standard, a properly filed petition, to the facts of
dozens and dozens of cases. And as sure as the sun sets in the
west, there will be conflicting interpretations. It will go up
eventually to the Supreme Court, and dozens and dozens and
dozens of cases will be held up while the interpretive process
of this body of the Congress's latest effort to inject new
standards into an already complicated area gets resolved.
I think that it is, Senator Kyl, with respect to counsel, I
said before--and I know you are not only fishing for
compliments for your State, but I think Arizona is the one
State that has made a serious effort to comply with Chapter
154. It may have taken longer than it should have. The Ninth
Circuit may or may not have been right in denying application
of the benefits of that regime in the actual case in which it
decided that the State had qualified. But what I find very
telling is that Arizona really does stand alone. There really
is no other State that has tried to avail itself of the Chapter
154 procedures. There were a couple of States early on which
basically said, we either have counsel or we would like to have
counsel, please allow us in, and those were plainly non-
meritorious claims.
The next closest State, it happens geographically, is
Senator Feinstein's State, California. California instituted a
mechanism. It tried to get this adjudicated. It tried to
qualify through by means of a suit under Section 1983. It went
all the way to the Supreme Court of the United States, which
about 10 years ago said, ``No, no. This has to happen in
habeas.'' Since that time I am not aware of any effort by the
State of California to improve its standards or to even raise
this issue again. I am not criticizing California. California
is the next best example, but I think before tinkering with
Section 154, which I think was a good idea, I think that the
Senate ought to look at why it is that States are not trying to
do it.
I suspect that what the data will show are that it is for
either one or both of the following reasons: either because the
existing doctrine, as narrowed by the Supreme Court prior to
AEDPA and as changed by AEDPA, has proven by and large so
satisfactory to prosecutors, that there is not really any great
compelling--there is no felt need to try and qualify for the
even stricter standards under Section 154, and there are many
States in this union for whom qualification under 154 would be
an amazing sea change, States where there is no system of
indigent defense period, let alone in post conviction, and the
steps that would be required to qualify seem like a bridge too
far.
So I certainly supported at the time and continue to
support the principle that more stringent standards apply under
Section 154 to States that actually provide competent counsel,
but I do not think that it would be wise or that we have any
data on which to tinker with Section 154, because thus far only
one State has sought to comply, it has now been certified, and
we do not really have--enough time has passed to know exactly
how the Ninth Circuit in particular will treat Arizona now that
it has in fact complied.
Judge McKibben. This is an important issue and I do not
know if I could have just two minutes to followup on the opt-in
provisions under 154, Mr. Chairman.
Chairman Specter. Please go ahead, Judge McKibben.
Judge McKibben. I did secure yesterday some preliminary
statistics in this area because I was trying to determine what
other States have taken the major steps that Arizona has, as
Seth Waxman has already indicated, which I think are
substantial. Not many States have done that and come as close I
think as you can come to qualifying in the Spears decision and
probably will in the future. But it appears that there have
been five States that have reasserted their entitlement to opt
in to 154, and Arizona is one of them, and Maryland, Ohio,
Florida and Mississippi. There have been 12 States that have
been denied certification, but they have never reapplied for
certification since the denial, and 19 States have not ever
applied for certification or opt-in under 154.
That would seem to suggest that the mechanism for opting in
under 154 is one that the States are aware of, but by and large
the States have not certainly made the effort that Arizona has
to attempt to opt in.
I think it is something that the Committee should study
long and hard before making the decision to shift the
responsibility for making the decision whether or not the State
qualifies for opt-in status from the courts to the Attorney
General as suggested in the statutory provisions. When the
Powell Committee adopted the report through the Conference,
there was certainly a role for the Federal courts to play at
that time, and I do not think there is any empirical data to
suggest that the procedure has not been appropriately
considered by the courts in resolving whether or not a State
has appropriately opted in. In fact, in the Arizona case it was
conceded that they had not complied strictly with the
provisions, and the question was whether the Ninth Circuit
properly determined that that should be waived.
Senator Feinstein. Mr. Chairman, on this point, because I
have to leave, something has just been brought to my attention
about California. Might I just mention it to the panel and see
if the know about it?
Chairman Specter. Yes, you may, Senator Feinstein. And I
know the sequence is unusual and causing concerns all around.
So I am going to ask the panel to be very brief in responses so
we can move to Senator Leahy and the other members.
Senator Feinstein. And I will try and be very brief.
It is my understanding that there is now a joint task force
between the Ninth Circuit and the State of California that is
trying to address these issues, and that a disproportionate
number of capital habeas cases involving delays in over a
decade come from California. What I am told is that all habeas
cases are automatically heard by the California Supreme Court.
However, due to the volume of cases before it, the Court does
not have time to grant hearings, and generally issues what is
called a ``postcard denial.'' Consequently, when cases are
appealed to the Federal Court there is no record to rely on,
and the judges have to start over from scratch, causing delays
and often requiring hearings at that point, which take
additional time.
Is this in fact correct to the best of your knowledge?
Would that account for the problem in these capital habeas
cases from my State?
Judge McKibben. Well, from speaking with my colleagues in
California and particularly in the Central District, the
Northern District and the Eastern District, where they have the
great volume of those cases, there is every indication that
when the case is filed in Federal court that a great deal of
the record may have to be developed in the Federal court, and
that is extremely time-consuming if those matters are not
fleshed out by the California Supreme Court.
Now, whether or not there is an intermediate Court of
Appeals that resolves some of those issues, I cannot say
because I am not that familiar with the California practice.
Senator Feinstein. Because I do not know whether the long
cases that Senator Kyl is referring to are essentially
California cases, the 20-year case, but there should not be any
excuse for that in my view. And if these are the postcard
denials that then do not have a record, and then go to Federal
court, and then the whole thing has to start again because the
State court is not doing what it should, we should know that
and correct it.
Judge McKibben. Having the records in Federal court--you
know, as a judge, it is extremely important to have that record
and have it early. We have a case in Nevada--and it is partly
out of California--in which the record is over 400,000 pages.
Senator Feinstein. If anybody has anything to add to that.
But I am going to look into that one aspect with the California
Court, Mr. Chairman, because this is kind of news to me.
Chairman Specter. Thank you, Senator Feinstein.
Senator Leahy.
Mr. Eisenberg. Mr. Chairman, might I say a word about the
postcard denials very briefly?
Chairman Specter. Yes, you may.
Mr. Eisenberg. I appreciate it. Thank you.
Chairman Specter. To the extent you can make it brief, we
would appreciate it.
Mr. Eisenberg. Senator, my understanding is that in many of
those cases of postcard denials, the reason for the denial is
essentially a procedural default, a timeliness ruling. And when
the case gets to Federal court they should not be starting over
from scratch. They should be applying the default. And much of
the litigation in California cases, I believe, has been the
result of the failure to apply those defaults.
When the case gets to the California Supreme Court,
moreover, it has already been typically through other courts
along the way up, both on direct appeal and collateral review,
and therefore, there is going to be some disposition of those
claims either on procedural grounds or substantive grounds from
the lower courts that the Federal courts should be looking to
and deferring to to the extent that they can reach those claims
at all.
I think the delays that we are talking about, the time
periods that you are hearing, are the time from when the case
gets to Federal court, not the time that it is spending in
State court, and I think that those delays are difficult to
explain.
Chairman Specter. Senator Leahy.
Senator Leahy. Mr. Chairman, I would ask first to put in
the record a number of things, including the ABA's concerns
about this.
Chairman Specter. Without objection that will be made a
part of the record.
Senator Leahy. Judge McKibben, you will not recall this,
but we met not long after you became DA of Douglas County?
Judge McKibben. That is correct.
Senator Leahy. I was out there for a prosecutors' meeting.
I had hair then. So did you. You still have yours.
[Laughter.]
Judge McKibben. Barely.
Senator Leahy. Mr. Waxman, I found out this morning that a
modified version of a provision from this bill has been slipped
into the current draft of the House-Senate Conference Report on
the PATRIOT Act reauthorization provision. The reason for some
of the surprise is neither the House nor the Senate PATRIOT
bill, actually neither the House nor the Senate has ever passed
this provision in any form. As it appears in the Conference
report which we just got a couple of hours ago, the provision
would shift from the Federal courts to the Attorney General of
the United States, the responsibility for determining whether
the State has established a qualifying mechanism for providing
competent counsel to indigent defendants in State post-
conviction proceedings, and that would be subject to review by
the D.C. Circuit.
The Attorney General would write the rules for certifying
State systems. States need only substantially comply with the
statutory requirements in order to qualify. Once a State has
been certified, and that certification has been upheld in
appeal, there is no apparent way for a State to be decertified,
even though they may decide to totally change their system
after getting certification.
I had my staff provide you with a copy of the new proposal.
I think you have probably had about 5 minutes to take a look at
it.
Assuming the proposals I described, what do you think of
that?
Mr. Waxman. Well, I would not favor it. I did get a copy of
it just before the hearing started, and I cannot say--I am not
an expert at reviewing legislation, and I cannot say that I
completely understand what the text provides. But my views
about--
Senator Leahy. I am not asking you to go into the question
that was not considered by either the Senate or the House. It
was just kind of slipped in in the middle of the night by--
Mr. Waxman. I think that it is dismaying to include in
legislation dealing with the very serious problem of terrorism,
a provision that, at least so far as I understand it, has
nothing to do with that, and that was not considered by or
voted out of either of the two Judiciary Committees that have
now held two hearings on this procedure. And so on procedural
grounds I guess I am sort of surprised about this.
If I understand the legislation, it would allow the
Attorney General of the United States, not only to make the
decision about whether States qualify for Chapter 154, but also
to set the standards that constitute qualification, whereas now
in AEDPA, AEDPA actually includes statutory standards.
I certainly do not think that the statutory provisions
themselves for qualification ought to be changed. I cannot even
imagine what the reason is why the Attorney General would have
authority to do that. But I also think that it is a very grave
mistake and an unwarranted act to take the process of
certification, which is essentially an adjudicative process,
away from an Article III court and give it to somebody who, as
I said in my written testimony, whoever the Attorney General
is, whatever their views are, is in the context of an
adversarial system of criminal justice is a prosecutor.
Senator Leahy. Correct.
Mr. Waxman. If I could just finish my sentence. That is
why, for example, when the Justice Department participates in
State habeas litigation in the Supreme Court, it either
participates on the side of the prosecution or it does not
participate at all. I am not aware of any instance--there may
be one, but it would certainly be the exception that proves the
rule--where the Attorney General comes into Federal courts in
State habeas proceedings on behalf of the prisoner, but there
are many instances in which I and other Solicitors General have
filed amicus briefs in support of the State. So I just think
there is an appearance issue, and since there is no evidence of
any State that has made a serious effort to try to get into
Chapter 154 other than Arizona, which has been certified, I
just do not think there is any cause to turn this decision over
to the Attorney General.
Senator Leahy. Mr. Eisenberg suggested that the cause and
prejudice test was satisfactory before AEDPA was enacted, but
has become a problem since then. Do you agree?
Mr. Waxman. I know of no evidence whatsoever to support
that assertion. I mean he is referring to a particular, I
guess, Third Circuit decision. I am not familiar with the
decision. I certainly could look at it, but the notion that the
cause and prejudice standard has now risen like Frankenstein
from the crypt to become a problem as a result of AEDPA is a
perplexing one to me. I do not think that the data would bear
that out.
Senator Leahy. I will set an example by being the only
person who sticks within their time, and I will submit my other
questions for the record, Mr. Chairman, but I do have a number
of questions.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Kyl, would you object if we went to Senator
Feingold next?
Senator Kyl. No, not at all, but I do have some--
Chairman Specter. We will come back to you.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I do want to
thank you for holding this hearing today on the Streamlined
Procedures Act. I am always sincere when I thank you, but I am
especially sincere about it today.
You and others on the Committee have been working over the
past few months to make changes to this extremely complex bill,
and I am gratified that we have witnesses here today who can
help us better understand the bill in its current form, as well
as the very serious implications this bill could have for our
criminal justice system.
Mr. Chairman, I think this is how the Senate should work.
Before we proceed to report out complex legislation like this
bill, we must be fully armed with the facts needed to evaluate
it and allow us to make an informed recommendation to the rest
of the Senate, and this hearing is an important step in that
process, and again, I thank you for your willingness to do it
at a convenient time.
Mr. Chairman, I would ask that my full opening statement be
placed in the record.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Senator Feingold. Mr. Waxman, let me begin by following up
on Senator Leahy's question. I am trying to better understand
this habeas language that we understand could be in the PATRIOT
Act reauthorization Conference Report. As I understand it, it
allows the Attorney General to certify a State to opt in to
Chapter 154 with D.C. Circuit review of that certification.
As I read the provision, the opt-in procedures would go
into effect as soon as the AG certifies the State before the
D.C. Circuit reviews it. Is that correct, and is that not
problematic?
Mr. Waxman. I do not know if it is correct, but if it were
it would be yet another reason why this legislation is
problematic, as is, for example, Senator Leahy mentioned, that
apparently the legislation does not include any provisions for
decertification. Once you have got your delicatessen ticket you
would be sort of in line forever, if I can really mangle a
metaphor.
Senator Feingold. Let me go to Section 5 of the bill that
modifies the rule for tolling the 1-year statute of limitations
on Federal habeas petition. Can you explain how that section
would change current law and whether you think the change is
justified?
Mr. Waxman. I do not think that the change is justified, at
least I do not know of any data or analysis that would suggest
there is any reason to change it, but AEDPA, for the first time
in our history, enacted a statute of limitations for access to
Federal habeas corpus. Many people thought at the time that the
whole notion of a statute of limitations was completely
antithetical to the Writ of Habeas Corpus as it has been known
and practiced ever since magna carta, but concerns about delays
in getting to Federal court prompted the Congress to take this
unprecedented step.
Now, questions have come up since AEDPA was enacted about
the 1-year statute and what days get counted and not counted.
AEDPA has a sensible rule that while cases are pending in State
courts, while State courts actually have the case, you cannot
charge the petitioner, the prisoner with that time. But the
question is what about the periods in between? I would have
though that the law as the Supreme Court has explicated the 1-
year provision under AEDPA is both clear and manifestly
appropriate. The language that Section 5 now uses to alter the
existing tolling regime is very unclear. It is not clear what
is meant by the terms ``original write'' or ``properly filed.''
I think it is a mistake for it to limit the tolling periods
for only for the filing, adjudication of Federal claims, rather
than claims that are pleaded as State constitutional
violations, but as to which evidence is subsequently revealed,
constitutes a Federal constitutional claim. Here is my
overriding point: I do not know, I simply cannot understand
what this provision is trying to address. If it is trying to
address anything other than the unique California system of
successive original writs rather than the normal process of
applying and appealing to a higher court.
If it is trying to address something other than California,
I cannot imagine what it is other than the doctrine, as Mr.
Eisenberg mentioned, of equitable tolling. I do not know of any
data--and I would be surprised to see it--that the principle of
equitable tolling, that safeguard of equitable tolling, is in
fact a systemic problem or is being abused in any way.
Senator Feingold. And it applies in all cases, not just
habeas cases, right?
Mr. Waxman. Yes, it is what courts do.
Senator Feingold. Then why would we want to make a special
exception not to explain this general doctrine in habeas cases
where individuals' lives and liberties are at stake?
Mr. Waxman. I do not know, and I do not even know that
there is a problem that it is seeking to address.
Senator Feingold. Do you think Section 5 should be taken
out of the bill?
Mr. Waxman. I do, and I think even with respect to
California--I litigated Carey v. Saffold, which is the Supreme
Court decision that is held up as one in need of remedy. I just
want to say that California has chosen its own system for how
it wants to administer its post-conviction proceedings. It has
done so fully cognizant of how long its own State chosen system
takes, and if there was any doubt about it whatsoever, it
certainly became aware of the habeas consequences after the
Supreme Court decided Carey v. Saffold.
Now, I understand that prosecutors in California object to
California's system of post-conviction review, and I think
actually if I were a prosecutor in the State of California, I
would too. But I think that they are bringing their case to the
wrong legislature. I think their case needs to go to the
legislature of California which has made a sovereign choice. I
view an attempt to sort of legislate these time limits for the
special case of California to be profoundly inconsistent with
principles of federalism.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Feingold.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I really want to get
into the Section 154, but I wonder, Mr. Eisenberg, if there is
any response that you want to make to the last colloquy between
Senator Feingold and Mr. Waxman. If so, please do at this time.
Mr. Eisenberg. Thank you, Senator. I would like to discuss
the notion that California has essentially chosen its own delay
by virtue of its own State system. We live in a Federal system
where the States get to choose varying ways of approaching
these problems. It is not supposed to be the job of the Federal
habeas corpus statute to mandate uniformity among the States in
that regard, but take a look at Pennsylvania, which has chosen
exactly the opposite approach from California. We have a system
where cases move through post-conviction review in State court
very much like in the Federal habeas corpus area. We have a 1-
year deadline which is modeled after AEDPA, and yet our Federal
courts have refused to give effect to those State rules in the
same way that the Federal courts in California have refused to
give effect to the rulings that are occurring there.
So the notion that it is because of the strange complexity
of the California system that we have these delays in Federal
court is false, and in fact, to look at the question more
largely in terms of, for example, the counsel systems, if you
look at the States that have done the most to address the
counsel question--and by the way, my understanding is that
Arizona still has not been certified despite its efforts in
that regard, and that California was the State for whom the
provision in Chapter 154 was most specifically crafted, and yet
California has been held not to qualify.
The States that have done the most in providing counsel at
the post-conviction stage, the State post-conviction stage,
which is where Chapter 154 focuses, I would suggest are
actually the States that see the longest delays on Federal
habeas corpus review. In other words, those delays are not
shorter. The provision of counsel systems in States like
California, Arizona, Pennsylvania, where we have had mandatory
appointment of counsel for State post-conviction petitions
since long before AEDPA, in those States and in other States in
areas around the country, outside the areas where the counsel
complaints are usually made, Mississippi and Alabama and all
those sorts of places, those are precisely the States where
some of the longest delays are seen on Federal habeas corpus
review, and the States which supposedly have the worst system
of counsel, tend to be States which see some of the shortest
delays on Federal habeas corpus review.
So the notion that there is some relationship between
States not carrying the ball on their counsel systems and
Federal courts having to delay on Federal habeas corpus, is
false, it is exactly the opposite.
Senator Kyl. It might be because there is good counsel in
those States that are trying to comply.
Just one quick question, Mr. Waxman, and then a more
complicated question. I am going to ask them both at the same
time, so you are answering here. I referred before--I asked
Judge McKibben, but I did not ask you--about the time limits
that we include in the bill, the 300-day limit on issuing Court
of Appeals opinion after briefing is completed and on the
rehearing, a petition for rehearing, 90 days to rule on a
petition for rehearing.
You talked about the fact it would be good to have a study
to see really why delays were occurring, but that if it were--
that it may well be appropriate to set limits. Would those
limits be appropriate, in your view?
And then I am going to ask you one more question on my
time.
Mr. Waxman. Is the next one the complicated one?
Senator Kyl. It is actually not, but it takes just slightly
longer to ask. I think that what Mr. Eisenberg just said about
the Ninth Circuit decision in Spears v. Stewart is correct,
that is to say that even though theoretically Arizona qualified
in this one particular case, the benefits, the timelines were
not allowed to be applied in the case, and the dissent in the
case, 11 of the judges in the full Ninth Circuit review of the
case, said the qualification aspect of it is strictly dicta,
they would not apply it. In fact they said, quote, ``To put it
bluntly, neither we nor any other court is bound by the panel's
advisory declarations in the case.'' It seems to me very
uncertain that in any future case the Ninth Circuit, get two of
the judges out of those 11 on your panel, clearly it is not
going to qualify. In no case--in other words, have the benefits
of 154 even been applied in Arizona, and so I am not nearly as
sanguine as--well, I guess I should ask you how sanguine you
really are that Arizona will receive the benefits of Section
154 in the future.
Mr. Waxman. First of all, with respect to the specific time
limits in the bill, since I do not--I really have no idea why
these cases that have been pending for a long time, why they
have been pending for a long time, and so I guess I would not
want to say whether I think these limits are appropriate or
not. I mean certainly 300 days after briefing seems
appropriate, but I cannot tell you the number of cases that I
have argued more than 300 days before I have gotten a decision
both in civil and criminal cases.
Senator Kyl. [Off microphone.]
Mr. Waxman. Well, you know, I am an inpatient person and it
is hard for me to remember these things unless I get a decision
in real time.
In terms of Arizona qualifying or not qualifying, on a
theory that no good deed ever goes unpunished, I now feel like
I am being called upon to predict, to evaluate the extent to
which Arizona really has done what is necessary to qualify, or
the extent to which maybe it has not.
My understanding was that a majority of the court said that
it had, and so long as it maintains a system that meets the
AEDPA statutory standards, it darn well should continue to
qualify. I have been handed a letter that the Public Defender's
Office--very excellent as far as I can tell--Public Defender's
Office in Phoenix submitted to Senator Leahy I guess last week,
joining issue with Kent Ketane with whom I shared this table a
few months ago, about the specifics of the cases, and I guess I
would not want to cast my lot on the facts one way or the
other.
My only point here is I certainly do not think we know
whether or not Arizona will justly get its reward under 154 for
a system that it has appropriately put in place. We are trying
to divine essentially like a Rosetta Stone from the one
decision that Your Honor--you have been called a judge, I will
call you Your Honor even though you do not have a robe on. We
just do not know, and in any event, I really do think that it
would be a bad idea both in practice and in public perception
to give this decision to the country's chief law enforcement
prosecutor. I just think that--I do not think the case has been
made for why that would be an appropriate thing.
Last, I realize I did not answer an earlier simple question
that you asked me, which is, is it not the case that there is
no cause and prejudice standard under Chapter 154, which is
sort of viewed as this sort of stump-the-witness question since
for the life of me, I cannot remember what is and is not in
154.
But now that I am looking at Section 2264(a)(A), I think
the answer is that it does have a cause standard, but it does
not even--if you meet the cause standard, you do not even have
to prove any prejudice. Now it is a strict cause standard, but
it does not have prejudice requirement, much less the, quote,
``actual innocence or no involvement standard.'' I could be
wrong, but that is the way I read it.
Senator Kyl. I would want to take that further.
Mr. Chairman, I just make this point, since Mr. Waxman
concluded his earlier answer with something which is pregnant
with dispute. The exact reason why it makes sense to have the
Department of Justice determine the compliance with the
statute, to be reviewed by a Federal court, is because
otherwise you have an ad hoc determination and precisely the
issues raised by the Spears case, where the court says, gee, in
this case it appears that you had a good set of counsel and so
on, but we are still not going to apply it, and the other
judges say, and we are not bound by this in any future case.
You never have resolution. No one can rely upon the system
either qualifying or not. You always know you are going to have
a case made at the end of the day before a judge that the
provisions cannot apply because the procedures were
inadequately established, or the program was inadequately
established, or operated.
It seems to me that having a determination made and then
the court reviewing it in each case, is a better way to do it
than having the court establish in each case whether you
qualify preliminarily to even be able to argue that you can use
these 154 expedited review standards.
That is my answer to your point.
Thank you, Mr. Chairman.
Chairman Specter. Mr. Waxman, my round of questioning has
finally come, and I will begin with you, but with first an
observation that it is not--and I know you are not representing
to be an expert in Congressional practices, but it is not
unusual to have something in a Conference report which is not
part of the PATRIOT Act. We have quite a number of provisions
which will be added to it.
With respect to this issue about the appropriateness of the
Attorney General's certification, the Innocence Protection Act
has an Attorney General certification. Would there be any
reason to approve that and not a certification here?
Mr. Waxman. I am going to have to admit that I am not fully
up to speed on the Innocence Protection Act and how the
certification works. I was asked to give my opinion about some
legislation that I only received after I was already sitting at
this table and--
Chairman Specter. That is OK. You are not expected to be an
encyclopedia, but there are quite a few provisions, and I have
just consulted with my Chief Counsel, Mike O'Neill, who is a
Professor, and the thoughts come to mind about preclearance on
the Voting Rights Act, which is an adjudicatory function. There
are some provisions under Environmental Protection where the
Department of Justice performs adjudicatory functions. There
are preclearances on mergers, antitrust, where there is an
adjudicatory function. And I believe that the Innocence
Protection Act is a pretty good example. I am trying to
determine whether there is even a court review of that. But
that is a legislative matter for us in any event.
With respect to the issue of having the Attorney General
make the determination, we are trying to move ahead on a
question which is very problemsome we have not been able to
answer. And I do think that Senator Kyl raises a very good
point about what is happening to Arizona and could it be
applicable to other States on an incentive to provide adequate
counsel. The way the situation is now, it appears that other
States are discouraged from doing so. But the provision which
we are considering in the Conference report, nothing is final.
It was not slipped in. It was something that I discussed
yesterday with Senator Leahy, and I reminded him of that a few
moments ago before he left. So that these disclosures are made,
and you do not read about it after the fact. But it does
require the statutory standards to be maintained, and it does
have provisions for decertification.
Judge McKibben, thank you very much for being here, for
your participation. Notwithstanding the objections which you
have raised to the pending proposals, do you think that the
habeas corpus procedures ought to be modified by any new
Federal statute?
Judge McKibben. Well, I think that the Committee should
move slowly in this area until there has been an opportunity to
determine if there are in fact any type of systemic problems on
delay. As I understand it, the principal reason behind this
legislation is that there have been indications that in some
districts, cases may have been delayed in the disposition
process. And I think until the study is undertaken to examine
that and review those cases, and see if in fact there is any
type of systemic problem--
Chairman Specter. Do you know of no systemic problem
yourself?
Judge McKibben. I am not aware of cases that have been
unduly delayed between the time that they come into Federal
court and when they go back to State court. There may well be
some delays in State court. That is inherent in the process
that we have in federalism and comity. I know Seth Waxman
indicated that there are occasions where the court asks the
prosecutor if they are willing to waive unexhausted claim
issues and not have them go back to the State court, have them
resolved in Federal court, which certainly would expedite the
process. But as long as we consider comity and federalism to be
an important doctrine, which we certainly do, that is going to
be inherent in the process. And, changing the statutory scheme
and the standards for being able to secure review, I think is
going to complicate the process. We are going to be litigating
that for the next 8 or 10 years.
Chairman Specter. Mr. Waxman, do you know of any provision
that ought to be modified, if there is any useful addition by
Federal legislation on this issue at this time?
Mr. Waxman. I am not. One way, as I indicated at the
outset, I think that it may well be that there are enduring
problems either that have persisted notwithstanding the
enactment of AEDPA, and/or problems that have been created, a
level of unfairness that has been created by AEDPA, all of
which would be appropriate for legislation, but I do again urge
the Committee and the Congress to reach out to the AO and the
Conference of State Chief Judges, and the Federal Judicial
Center. Let's get the data and some analyses and identify what
are the problems that have either on a systemic basis persisted
and why, and what problems has AEDPA perhaps--
Chairman Specter. I am just asking if you know of any, and
the answer is no.
Mr. Waxman. No.
Chairman Specter. Senator Feingold, I understand you want
another round, which is certainly a more modest request than
another hearing.
[Laughter.]
Senator Feingold. Mr. Chairman, you were kind to allow this
hearing, and I am not even going to use a whole round. I just
want to ask Judge McKibben a couple of questions.
Chairman Specter. Do not forget the hearing before this
too.
Senator Feingold. I was happy about that hearing too.
[Laughter.]
Senator Feingold. I will try to be brief.
Chairman Specter. You are recognized, Senator Feingold, for
however long you like up to 5 minutes.
[Laughter.]
Senator Feingold. That is what I thought. Thank you, Mr.
Chairman.
Judge, the vast majority of Federal habeas cases are in
non-capital cases, is that not right?
Judge McKibben. That is correct, about 18,000 a year.
Senator Feingold. And individuals who have been sentenced
to a prison term or even life imprisonment really have no
incentive to delay their legal proceedings, do they?
Judge McKibben. Not to my knowledge. The sooner they can
have the matter disposed of, particularly if it is favorable,
the sooner they would be released if they are successful.
Senator Feingold. So when we are talking about those kind
of cases, there is not even any potential for the kind of
dilatory tactics that some Senators are worried about, is that
not correct?
Judge McKibben. The Conference has expressed that in the
communications I have provided to the Committee. That is
correct.
Senator Feingold. Judge, one of the big problems with
erecting extremely complex procedural barriers in habeas cases,
as we have talked about, is that many State defendants are
navigating their State systems with no counsel or with an
attorney who is overworked, underpaid and has no investigative
resources. Does the statute here help to address in any way
situations in which petitioners had no counsel or incompetent
counsel in State court?
Judge McKibben. That is one of the concerns the Conference
has. It seems to me that part of the problem here is ensuring
that there is competent counsel throughout the State process,
and that would include post-conviction. If you have competent
counsel, then it makes it much easier to navigate the post-
conviction review in the Federal courts.
A great number of the cases that we have, the petitioners
do not have counsel, and the petitions get filed, and then you
go through the amendment process where they have to refine it
and we have to try to understand it. We have a special Habeas
Unit in our court that works with that because they are able to
look at those petitions, most of them, many of them
handwritten, and attempt to discern exactly what it is that is
being set forth. And then they have an opportunity for
amendment.
This bill does not really address that issue, and I think
that is a core issue that has to be resolved before we will be
able to expedite these cases in the future, more so than is
being done now.
Senator Feingold. I thank you, and I thank all the
witnesses.
And again I thank you, Mr. Chairman, for the hearing.
Chairman Specter. Thank you very much, Senator Feingold.
Senator Kyl, you had the first word on this bill, and you
may have the last word.
Senator Kyl. Thank you, Mr. Chairman. There is so much more
we could talk about. I have got a whole series of questions
here. I think probably that we have imposed upon our witnesses
long enough in this open hearing. But I do think the process of
working around a table has helped. And if we do not presume too
much more on the experts' time here, I would hope for that
opportunity in the future as well.
We certainly have not rushed this now. I mean it has now
been almost 6 months, and it is important business to take the
time and do it right. I just hope that we can get beyond what I
said in the beginning is undoubtedly a clash of two points of
view that are difficult to reconcile about the use of habeas
corpus, and perhaps also come to an agreement that if the
statistics do reveal significant problems, particularly in the
capital cases, as the Arizona study--which I will share with
you--I think does, that armed with that information, we would
be willing to make some changes statutorily. It is perfectly
appropriate for us to legislate in this area. I think we all
agree with that.
And the notation that you made about the number of Supreme
Court cases that have just now come to fruition and provided
guidance is an illustration of the fact that if we get it
right--it is a big ``if''--but if Congress gets it right in the
way that it writes legislation, we can express intent and clear
up issues and provide clear guidance across the board, and in
many respects more specifically than the courts do it through
the cases that may or may not come before them with particular
fact situations they have and the like.
It is hard to make law in this area through case law. And
what we are trying to do here is be specific and precise and
general in our application to everybody, rather than just
having ad hoc determinations that may or may not have
precedential effect, and that differ in facts, and therefore
are of limited value in other situations, and which make it--I
think Mr. Waxman, you said--one of the more esoteric areas of
law that has a great deal of unsettled aspects to it. We are
trying to settle some of those, and that is our intention here.
So if you grant that the legislature has that potential if
we do it right, I would hope you would continue to work with us
to try to help us get it right so that we can provide more
certainty and at least in States that are really trying hard. I
mean Arizona spends like $60,000 on the average case, and on
the difficult cases it is far more than that. I am quite
familiar with the process. They are really trying hard and have
been for a number of years. I think it is discouraging when
other States see that it does not seem to have the intended
effect in terms of the certification. so that is my plea. I
again express my gratitude to all of you and the others who
have helped to work on this, and hope, Mr. Chairman, that we
can continue to try to work this issue. And thank you again.
Chairman Specter. Thank you very much, Senator Kyl.
Thank you, Judge McKibben and Mr. Waxman and Mr. Eisenberg.
That concludes our hearing.
[Whereupon, at 11:45 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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