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TERRORIST DEATH PENALTY ENHANCEMENT ACT

OF 2005, AND THE STREAMLINED PROCEDURES

ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 3060 and H.R. 3035

JUNE 30, 2005

Serial No. 109–46

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Special Counsel for Intelligence 

and Homeland Security 

MICHAEL VOLKOV, Deputy Chief Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 30, 2005

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4

WITNESSES 

Mr. Barry M. Sabin, Chief of Counterterrorism Section for the Criminal 

Division, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 9

The Honorable Joshua K. Marquis, District Attorney, Clatsop County, Oregon 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 16

Mr. Ron Eisenberg, Deputy District Attorney, Philadelphia, Pennsylvania 

Oral Testimony ..................................................................................................... 89

Prepared Statement ............................................................................................. 90

Mr. Bernard E. Harcourt, Professor of Law/Faculty Director of Academic 

Affairs, University of Chicago 

Oral Testimony ..................................................................................................... 94

Prepared Statement ............................................................................................. 97

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 5

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Michael Israel, Editor, Criminal Justice Washington Letter, to 

the Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security, and the Honorable Robert C. Scott, a Representative 

in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 140

(1)

TERRORIST DEATH PENALTY ENHANCEMENT 

ACT OF 2005, AND THE STREAMLINED PROCEDURES ACT of 2005

THURSDAY, JUNE 30, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 1 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chair of the Subcommittee) presiding. 

Mr. COBLE. Good afternoon, ladies and gentlemen. The hearing 

will come to order. 

I have good news and bad news. The good news is we are all here 

in place. The bad news is, Mr. Scott, I am told that there will be 

a series of votes imminently, so we will play that by ear and then 

play that card which was dealt to us. 

Before I give my opening statement, and before I recognize Mr. 

Scott, much interest has been indicated in this issue, and some 

Members of the Subcommittee have requested a second hearing, 

and we will in fact conduct a second hearing. I’m not sure when 

that will be, but there will be a second hearing conducted. 

I want to welcome everyone to this hearing on the death penalty 

in America. The issue of the death penalty in our country continues 

to spark significant debate. The American people believe in the 

death penalty, especially for terrorists—strike that. Many American people believe in the death penalty, especially for terrorists 

who have killed Americans. I am convinced that we must be vigilant in ensuring that capital punishment is meted out fairly 

against those truly guilty criminals. 

In the last session of Congress we enacted the Justice for All Act, 

a far-reaching measure which provided additional safeguards of our 

death penalty system for post-conviction DNA testing of evidence 

and improvements in our capital counsel system. This was a matter you all remember that was co-sponsored by our Chairman of 

the full Committee, Mr. Sensenbrenner, and Mr. Delahunt. And I 

think, Bobby, you co-sponsored it as well, or did you? The DNA. 

And Mr. Scott and I were co-sponsors of that as well. 

The integrity of our criminal justice system, and in particular our 

death penalty system, has been enhanced by the enactment of this 

measure. Despite these improvements, some death penalty oppoVerDate 0ct 09 2002 14:22 Oct 03, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\063005\22189.000 HJUD1 PsN: 22189
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nents continue to argue that the system is broken and that the 

death penalty system is unfair. 

I am concerned about the manner in which the debate is being 

conducted in some instances. Some death penalty opponents have, 

in some cases, used some disinformation or even deceptive information on occasion to suggest that the death penalty in our country 

is not accurate. Yet no credible evidence has been provided, known 

to me, to suggest that a single innocent person has been executed 

since the Supreme Court imposed the heightened protections in 

1976. 

We now have in place greater safeguards and technologies to ensure accuracy at the most important phase of a prosecution; that 

is, the trial. Aside from the protection of the public and the just 

punishment of the guilty, our death penalty system vindicates the 

rights of victims and their families to see that justice is in fact 

done. 

Often during the debate of the death penalty the rights of victims 

and their need for closure is minimized, or in some instances ignored. 

Today we are also examining two important proposals, the first 

introduced by Representative Carter, the gentleman from Texas, a 

former Member of the Judiciary Committee. H.R. 3060, the ‘‘Terrorist Death Penalty Enhancement Act of 2005,’’ adds the death 

penalty for a number of terrorist attacks, including weapons of 

mass destruction, atomic bombs, guerrilla violence, missiles, and 

other means of attack. The House passed many of these provisions 

in the last session of Congress, but they were dropped during the 

conference with the Senate on the Intelligence Reform bill. 

In addition, Representative Carter’s bill proposes to treat terrorism crimes similarly under our Federal death penalty statute to 

espionage and treason crimes where a terrorist crime creates a 

grave risk of harm to our country. 

Today we are also examining Representative Lungren’s proposal, 

H.R. 3035, the ‘‘Streamlined Procedures Act of 2005,’’ which reforms habeas corpus review of State court convictions. 

The Subcommittee in the judicial security hearing, and in examining child crimes, and even last Congress during consideration of 

the Justice for All Act, has gathered a substantial amount of evidence showing that the Federal court habeas review, particularly 

in the death penalty area, has suffered from extraordinary delays, 

some I am told as long as 15 years, for a pending habeas petition 

to be resolved by a single Federal judge, a misguided application 

to precedent to frustrate the ends of justice in some instances. 

I look forward to hearing from today’s witnesses, and I am now 

pleased to recognize my friend, the distinguished gentleman from 

Virginia, the Ranking Member of the Subcommittee, Mr. Bobby 

Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you 

in convening this hearing. I would want to make one comment, 

though, on the death penalty. When you suggest that no innocent 

people have been executed, it is a fact that some people have been 

executed, and there has been evidence that could show whether we 

executed the right man or not. And in some States they will destroy the evidence, in others they will refuse to release the eviVerDate 0ct 09 2002 14:22 Oct 03, 2005 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\063005\22189.000 HJUD1 PsN: 22189
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dence, so you can’t find whether they were correct or not. And furthermore, there are a lot of cases where people have been put on 

death row, and but for DNA evidence they would have been executed. DNA evidence not only in some cases confirmed innocence, 

but also pointed to the actual perpetrator. 

Mr. COBLE. Would the gentleman suspend a moment? 

Mr. SCOTT. Yes. 

Mr. COBLE. Now, are you talking, Mr. Scott, from 1976 or prior 

to 1976? I was going post 1976. 

Mr. SCOTT. People have been released from death row since 1976, 

yes, because they have been found innocent through DNA evidence; 

fair trial, everything else, just had the wrong man. And DNA evidence revealed, exposed the fact that not only did they not do it 

but also pointed out the one that did. 

Now, there is no reason to suspect that people for whom there 

is no DNA evidence are innocent at any smaller percentage than 

those for which you lucked out and do have DNA evidence. And so 

those who have suggested no innocent person has not been executed I think cannot make that case credibly. 

But I must say, though, Mr. Chairman, that this hearing has 

somewhat evolved from what it started with. It started with a 

hearing where a main focus would be whether or not there was any 

deterrence value on the death penalty. It has changed to one in 

which I found the primary issue to be whether the writ of habeas 

corpus should be essentially eviscerated through H.R. 3035, the socalled Streamlined Procedures Act. 

Because of the devastating implications of this bill, and because 

I am restricted to calling only one witness for this hearing who 

only has 5 minutes to make his case, the entire focus of our witness 

had to be devoted to this issue, the habeas corpus issue. This 

means that the deterrence issue and H.R. 3060, the Terrorist 

Death Penalty Act, could not be addressed. And that is unfortunate 

because there is valuable information that needs to be on the 

record regarding both of these issues, and therefore I feel that we 

need a separate hearing on this issue. And I want to thank you, 

Mr. Chairman, for committing to having that separate hearing. 

From the initial discussions of our counsels on the hearing, I 

fully expect that the future witnesses will be those who will be researching the deterrence issue. And I expect one of those—I expected one of those witnesses to be Joanna Shepard or one of her 

colleagues who would be an economist. She has since qualified her 

original finding that the death penalty reduced crime following a 

tirade of criticism and challenges from social scientists and criminal justice researchers. She had stated that executions have an 

overall deterrent value on the national level, but critics pointed out 

that her analysis was failed. She has subsequently concluded, as I 

understand it, that of the 27 States that have had at least one execution during their study period, capital punishment deterred murder in 6 of those States. However, the study suggested that it increased murder in 13 States, or twice as many; in 8 States it had 

apparently no effect. So on 22 percent of the States executions had 

a deterrent effect. In contrast, almost 80 percent of the States had 

either no effect or it actually increased crime. 

4

She concluded that her previously established, quote, deterrent 

effect had come from 6 States with high execution rates. And if you 

are going to draw that conclusion, unless you go to those high execution rates in a handful of States, you are better off with no death 

penalty at all. 

H.R. 3035 represents a radical restructuring of traditional applications of the habeas corpus, one of the founding principles of our 

country. We will hear some issues and problems presented by this 

bill from our witness, Professor Harcourt, but we really need to 

focus more attention on the implications of this bill before proceeding further on it. 

And so, Mr. Chairman, I look forward to the testimony of our 

witnesses today and look forward to working with you in our next 

hearing. 

Mr. COBLE. I thank you, Mr. Scott. 

We have been joined by the distinguished gentleman from Michigan, the Ranking Member of the full Committee Mr. Conyers, and 

the distinguished gentleman from Florida and Ohio, respectively, 

Mr. Feeney and Mr. Chabot, and the gentleman from California, 

Mr. Lungren. 

It is customary to reserve opening statements to Mr. Scott and 

to me, but when the Ranking Member of the full Committee attends our hearing, I am pleased to recognize him for an opening 

statement if he has one. Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Coble. I come here to wish 

that these two bills had been the subject of separate hearings because they are both complex and both very important. 

Mr. COBLE. Would the gentleman suspend? 

Mr. CONYERS. With pleasure. 

Mr. COBLE. Mr. Conyers, before you came—and you may know 

this—we have also agreed to have a second hearing on these issues 

as well. 

Mr. CONYERS. Yes, thank you. I am happy to know that. 

We are dealing with the death penalty, and I have heard the 

Ranking Subcommittee Member make some important points about 

it, with which I associate myself, but in the end, the inherent problems with the death penalty is that it sometimes has a reverse deterrent effect and may in fact create martyrs, especially when terrorist-type cases—the Timothy McVeigh situation. There are now 

over a hundred Americans that have been sentenced to death, only 

later to be exonerated, which suggests that many of the people convicted and sentenced to death may actually be innocent. 

And then in terms of the habeas corpus and stripping Federal 

courts of their jurisdiction is a very serious matter. Singlehandedly, this measure would virtually eliminate the ability of the 

Federal courts to determine Federal constitutional issues in cases 

involving prisoners either facing death sentences or serving prison 

terms. And let’s see, the Supreme Court decisions—one, two, three 

at least—would be overturned, and I think additionally would undermine the overall independence of the Federal judiciary. 

I think these matters, both the proposals, contain bad policy, and 

I look forward to the hearings and ask unanimous consent to insert 

my statement into the record. 

5

Mr. COBLE. Without objection, the statement will be inserted into 

the record. 

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

H.R. 3060 offers a solution for a problem and culture that is obviously sorely misunderstood. While it pretends to make us safer, in reality it undermines the solid 

bit of information that we do know. 

For example, we know—thanks to the testimony of the majority’s own witness last 

Congress—that there is no scientific evidence indicating that terrorists will actually 

be deterred by the threat of capital punishment. 

We also know, that with the addition of each new death penalty, we decrease the 

likelihood of international cooperation and assistance in our efforts to bring suspected terrorists to justice. 

Finally, we know—as a result of the events surrounding the execution of convicted 

Oklahoma City bomber Timothy McVeigh that the execution of terrorists could actually have a reverse deterrent effect through the creation of ‘‘martyrs.’’

In the end, the inherent problems with this bill are the same as those found in 

many other bills involving the death penalty. Namely, that the system is flawed, 

defendants rarely receive adequate legal representation and that its application is 

racially discriminatory. 

There are now over 100 Americans that have been sentenced to death, only later 

to be exonerated. Proving that many of the people convicted and sentenced to death 

are actually innocent. 

Turning attention away from H.R. 3060 and to H.R. 3035, the addition of this bill 

to the scope of today’s hearing proves that the real issue confronting us is about 

far more than reducing crime and preventing terrorism. As H.R. 3035 clearly demonstrates, it’s really about undermining the role of habeas corpus and stripping federal courts of their jurisdiction to determine many federal issues. 

Singlehandedly, this bill would virtually eliminate the ability of federal courts to 

determine federal constitutional issues in cases involving prisoners either facing 

death sentences or serving prison terms. It would overturn a whole series of Supreme Court decisions; including Rhines v. Webber (125 S.Ct. 1528)(2005), Artuz v. 

Bennett (531 U.S. 4)(2000), and Carey v. Saffold (593 U.S. 927)(2003). And, it would 

considerably undermine the overall independence of the federal judiciary. 

Quite interestingly, proponents of this bill are some of the same Members of Congress who advocated for the expansion of federal jurisdiction in the case of Terri 

Schiavo. Now, just a few days later they seek to drastically eliminate it for a countless number of individuals presently involved in our criminal justice system. 

Bad politics makes for bad policy. These bills are both. I strongly urge my colleagues to oppose these two measures.

Mr. COBLE. Gentlemen, it is the practice of the Subcommittee to 

swear in all witnesses appearing before us, so if you would please 

stand and raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. You may be seated. 

We have a very distinguished panel, ladies and gentlemen, let 

me introduce them to you. We have four distinguished witnesses 

today. Our first witness is Mr. Barry Sabin, Chief of the 

Counterterrorism Section of the Criminal Division of the Justice 

Department. Prior to beginning this role Mr. Sabin served as a 

Federal criminal trial attorney in the United States Attorney’s Office in Miami, Florida, where he held a number of supervisory positions, including the Chief of the Criminal Division and chief of the 

major prosecutions in the violent crime session. 

Prior to joining the Justice Department, he was a litigation associate at Stroock & Stroock & Lavan. Mr. Sabin received his BachVerDate 0ct 09 2002 14:22 Oct 03, 2005 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\063005\22189.000 HJUD1 PsN: 22189
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elor’s and Master’s Degrees from the University of Pennsylvania 

and his law degree from the New York University School of Law. 

Our second witness is the honorable Joshua Marquis, District Attorney General for Clatsop County in Astoria, Oregon. If you will 

permit me a point of personal privilege, Mr. Marquis, back in the 

dark ages I served with the Coast Guard at the mouth of the Columbia River, which is your town, and I very much enjoyed being 

there where it rained just about every day, but I still enjoyed my 

time on the Columbia River. 

Mr. Marquis has been a district attorney since 1994 and has 

been elected three times since then. He has worked as a prosecutor 

and defense attorney in Oregon for 20 years. He is past President 

of the Oregon District Attorney Association and a member of the 

board of directors of the National District Attorneys Association, 

where he is chair of that group’s Capital Litigation Committee. Mr. 

Marquis received his undergraduate and law degrees from the University of Oregon. 

Our third witness today is Mr. Ronald Eisenberg, the Deputy 

District Attorney in the Philadelphia District Attorney’s Office. Mr. 

Eisenberg supervises the Law Division, which consists of 60 attorneys. From 1986 through 1991 he was chief of the Appeals Unit in 

Philadelphia. Previously Mr. Eisenberg served on the Task Force 

on Death Penalty Litigation of the Third Circuit Court of Appeals 

and has helped to draft Federal legislative proposals concerning habeas corpus reform and DNA testing. He was awarded his Bachelor’s Degree from Haverford College and earned his JD at the University of Pennsylvania School of Law. 

Our final witness today is Mr. Bernard Harcourt, Professor of 

Law and Faculty Director of Academic Affairs at the University of 

Chicago. Professor Harcourt’s scholarship focuses on crime and 

punishment, and he is the author of ‘‘Language of the Gun: Youth, 

Crime and Public Policy.’’ Previously he practiced law at the Equal 

Justice Initiative from 1990 to 1994, where he represented death 

row inmates. 

Following law school, he clerked for the honorable Charles 

Haight, Jr. of the U.S. District Court for the Southern District of 

New York. Professor Harcourt received his undergraduate degree 

from Princeton and his JD and PhD Degrees from Harvard. 

We have now been joined by the distinguished gentleman from 

Massachusetts, Mr. Delahunt. Good to have you with us. And I 

apologize to those in the audience for my lengthy introduction, but 

I think it benefits all of us to know the outstanding backgrounds 

and resumes of these gentlemen who will be testifying this afternoon. And the distinguished gentleman from Wisconsin, Mr. Green, 

has joined us as well. 

Gentlemen, as you all have been previously informed, we operate 

under the 5-minute rule here. The panel that appears before you, 

the green light is safe waters for you. That green light will turn 

to amber. And when the red light appears, that is your warning 

that 5 minutes have expired and Mr. Scott and I may come down 

after you. I say that figuratively speaking, of course. But if you 

could confine your remarks to the 5 minutes. We impose the 5-

minute rule against ourselves as well, so if you could keep your reVerDate 0ct 09 2002 14:22 Oct 03, 2005 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\063005\22189.000 HJUD1 PsN: 22189
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sponses to our questions as terse as possible. Your testimony has 

been reviewed and will be re-reviewed. 

Mr. Sabin, we are happy to recognize you to lead off. 

TESTIMONY OF BARRY M. SABIN, CHIEF OF COUNTERTERRORISM SECTION FOR THE CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. SABIN. Thank you, Mr. Chairman. 

Mr. Chairman, Ranking Member Scott, Members of the Committee, thank you for the opportunity to testify at this important 

hearing. 

I am provided the opportunity to discuss with you the Department of Justice’s views on this legislative effort to strengthen penalties for the commission of grave offenses committed by terrorists 

against the American people and our interests. 

The Department of Justice has been committed to the investigation of violent crimes carried out by terrorists against Americans, 

both within our borders and overseas, for more than a generation. 

This commitment to the investigation of terrorist attacks has resulted in a considerable number of prosecutions of those who are 

responsible for bombings, kidnappings, murders and assaults 

against Americans overseas since the 1980’s, as the Department 

has attempted to use all available legal tools in the fight against 

terrorism. 

As the fight continues, prosecutors must be equipped with every 

possible legal weapon to help to prevent and deter terrorist conduct 

before it results in violent action, to severely punish such conduct 

when it does occur, and to help victims of terrorist crimes by seeking justice on their behalf. 

Title I of the Terrorist Death Penalty Enhancement Act of 2005 

enhances the existing legal arsenal to ensure that those responsible 

for the most serious criminal conduct against Americans, conduct 

that results in death or creates a grave risk of death, will be punished commensurate with the gravity of that crime. 

Let me take this opportunity in my oral statement to focus generally on section 103 of the bill, death penalty procedures for certain air piracy cases. My written statement addresses other provisions of the bill under consideration, particularly title III. There 

are also several other significant changes to the Federal capital 

punishment statutes that should be considered. The Department 

stands ready to work with the Committee on these matters. 

The Department supports section 103 of the bill, which would 

permit the imposition of the death penalty upon an individual convicted of air piracy offenses resulting in death where those offenses 

occurred after enactment of the Antihijacking Act of 1974, but before the enactment of the Federal Death Penalty Act of 1994. This 

provision would cover a small, but important category of defendants, including those responsible for the December 1984 hijacking 

of Kuwait Airways Flight 221 and the murder of two American 

United States Agency for International Development employees, 

the June 1985 hijacking of TWA Flight 847 and the murder of a 

Navy diver, the November 1985 hijacking of Egypt Air Flight 648 

and the murder of an American servicewoman as well as 56 other 

passengers, and the September 1986 hijacking of Pan Am Flight 73 

8

and the murder of American citizens Rajesh Kumar and Surendra 

Patel as well as at least 19 other passengers and crew and the injury of over one hundred others. 

Section 103 is important to reaffirm the intent of Congress to 

have available the ultimate penalty to use against aircraft hijackers whose criminal actions result in death. In 1974, Congress enacted the Antihijacking Act in response to Furman v. Georgia to 

ensure that comprehensive procedures were available so that the 

death penalty could be constitutionally enforced. Over the years, 

the crime of air piracy was repeatedly cited by Members of Congress and the executive branch as an example of crime for which 

Congress has enacted the necessary constitutional provisions to enforce the death penalty. 

In 1994, in an effort to make the death penalty widely available 

for numerous Federal offenses and to enact uniform procedures to 

apply to all Federal capital offenses, Congress passed the Federal 

Death Penalty Act of 1994, explicitly including air piracy procedures among the list to which it applies, at the same time repealing the former death penalty procedures of the Antihijacking Act 

of 1974. The problem with this legal development is that there is 

a perceived gap in legislative intent to maintain the option of a 

death penalty for those who committed air piracy resulting in 

death before enactment of the FDPA. 

Let me briefly discuss the circumstances that brought this issue 

to light. On September 29 of 2001, the United States obtained custody of Zaid Hassan Abd Latif Safarini, the operational leader of 

the deadly attempted hijacking of Pan Am Flight 73, a crime which 

occurred on September 5, 1986 in Karachi, Pakistan. Safarini personally executed the first United States citizen, and after a 16-hour 

standoff he and his fellow hijackers opened fire on approximately 

380 passengers and crew on board Pan Am 73, attempting to kill 

all of them with grenades and assault rifles. In 1991 Safariniand 

his co-defendants were indicted by a grand jury in the District of 

Columbia, and after being brought to the United States for trial in 

2001, the prosecutors filed papers stating the Government’s intention to seek the death penalty against Safarini. The district court, 

however, ruled that the Government could not seek the death penalty in this case or by implication in any other air piracy case from 

the pre-FDPA period, essentially because Congress had not made 

clear which procedures should apply to such prosecution. In its ruling, the court noted that at the time it passed FDPA in 1994 Congress does not state any intention as to whether the new capital 

sentencing procedures should be applied to air piracy offenses occurring before enactment of the FDPA——

Mr. COBLE. If you would rap up pretty soon, Mr. Sabin. 

Mr. SABIN. Section 103 of this bill addresses the issues identified 

by the district court in the Safarini case by explicitly stating that 

Congress intends for the provisions of the FDPA to apply to this 

category of defendants, while also explicitly preserving for such defendants the two provisions of the Antihijacking Act. 

I thank the Committee again for holding this hearing and considering this legislation. The Department very much wants to work 

with Congress to ensure that those who commit serious terrorist 

9

crimes are punished to the fullest extent under the law no matter 

how long it takes to see that justice is done. 

[The prepared statement of Mr. Sabin follows:]

PREPARED STATEMENT OF BARRY M. SABIN


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Mr. COBLE. The gentleman’s time has expired. 

Mr. Marquis. 

TESTIMONY OF THE HONORABLE JOSHUA K. MARQUIS, 

DISTRICT ATTORNEY, CLATSOP COUNTY, OREGON 

Mr. MARQUIS. Thank you, Mr. Chairman. Thank you for inviting 

me here today. 

As you have indicated, I am from Astoria, the classic county. It 

is where Lewis and Clark ended their trail 200 years ago. And my 

wife’s family is from your State, and she constantly complains 

about the rain all the time, so—but you are all welcome to come. 

I have been a trial lawyer for 20 years, and I’ve had the unusual 

experience of having served as lead counsel as both a prosecutor 

and as a defense attorney in capital cases. I have co-authored a 

book on the death penalty, and I debate this subject around the 

United States and Europe. And with all due respect to the Chair, 

I am a lifelong Democrat. I have never voted for a Republican for 

President, and probably won’t. 

Mr. COBLE. Mr. Marquis, as Mr. Scott will tell you, he and I get 

along—and Mr. Delahunt as well, and Mr. Conyers. We all get 

along pretty well, despite their shortcomings. 

Mr. DELAHUNT. No apologies here. 

Mr. MARQUIS. Well, I mention that only to make clear that I 

think this discussion transcends traditional liberal conservative or 

Republican-Democrat issues. There needs to be something very vigorous in a discussion as serious as the death penalty, and when 

we’re talking about the State taking lives, even particularly those 

of terrorists. And there are people of good will on both sides of this 

issue, but it is very critical that we have an honest debate and, as 

Mr. Scott says, I am here to talk today about deterrence primarily. 

In my written statement I detail what I consider a series of 

urban legends that exist about the death penalty in the United 

States. Basically the death penalty is crowded with innocent men— mostly men, there’s a few women. Nothing could be further from 

the truth. The capital justice system in the United States, like all 

other parts of the system, is not without its faults. There is no 

human endeavor that is not. 

A death sentence is handed down in the United States, since 

1976, in approximately one out of every thousand murders. So we 

are talking about a very rare occasion—and it should be a rare occasion. Even Judge Jed Rakoff of the U.S. District Court of New 

York, who ruled the death penalty unconstitutional because he 

claims so many innocent people might be executed, has conceded 

that the number is about 30 of the 8,000 people sentenced to death 

since Gregg in 1976. That would be the error rate at about, I think, 

one-third of 1 percent. And frankly, you have a better chance of 

being killed by your pharmacist or elective surgery than you do of 

a faulty death penalty. And as the Chairman mentioned, the number of people who have been found innocent, who have later found 

out to be executed—and there were those before 

1976—that number since 1976 is zero, despite very hard work by 

a lot of death penalty opponents to try to prove that. 

Now even more compelling, I think, in the context of this hearing, is what will happen if we fail to condemn the worst of the 

15

worst in our society. There is a study just out by a very noted liberal or progressive professor from the University of Chicago—I believe, in fact, he is a colleague of Professor Harcourt—named Cass 

Sunstein, who has just published a very provocative paper called, 

‘‘Is Capital Punishment Morally Required?’’ and he cites an increasing cluster of studies which show a clear deterrent effect between the death penalty and reductions in murders, and asks, 

what will we say to the families of murder victims when we could 

have prevented those people’s deaths? And he makes the point 

more eloquently than I can that we have about 50 executions a day 

in the United States, and they are conducted very capriciously and 

they are not conducted by the Government. 

Unfortunately, we do know the names of people, innocent people 

killed as a result of our failure to have the death penalty. Ask the 

families of Kenneth McDuff’s victims from Texas on death row; out 

again, killed seven people. Or I am sure Attorney General Lungren 

remembers Robert Massey in California, on death row, released; he 

rewards the man who gives him a job by killing him. He was eventually put to death. 

In my written testimony, I detail a popular movie and play called ‘‘The Exonerated,’’ which claims to chronicle the story of six people 

on death row who are now off death row who they claim to be innocent. The problem is that two of those two people pled guilty, and 

the third one is not available to do press tours right now because 

he’s doing time in New York for a murder he pled guilty to, which 

is identical to the one for which he was acquitted, and for that reason he was exonerated. 

There is a very good reason that the opponents of the death penalty use words like ‘‘exonerated’’ and ‘‘innocent.’’ they are very powerful words, they mean something very significant, and I think to 

use that word when it is not appropriate dishonors the names of 

the people who really were innocent. And Mr. Scott will point out 

there have been people who have been on death row who have been 

innocent, and that is something we need to work very hard against. 

I see that I have very little time remaining. I want to briefly 

touch on the issue of race because I think it is very important. 

There is also a very common belief the death penalty is inherently racist. And I recommend a study, again by a group of academics who are against the death penalty, from Cornell University 

last year who showed that the traditional theories that the socalled South is a death belt is simply not true. In fact, States of 

the Confederacy tend to fall below the average. Oregon, my State, 

is just above, and Texas is just below. The States with the highest 

rates of death penalty are Ohio and Delaware and Nevada. 

The larger issue is how we can achieve a flawless system, and 

I don’t think we’re going to be able to do that. Support for the 

death penalty does not mean that you enthusiastically support capital punishment. And again, the fear of offending perhaps the prolife members, I am pro-choice, I amfor the death penalty in the 

same way I am for abortion; I would rather not see abortions and 

I would rather not see capital punishment but I think it is something that is a necessity. 

Thank you very much for inviting me today. 

[The prepared statement of Mr. Marquis follows:]

16

PREPARED STATEMENT OF JOSHUA K. MARQUIS


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Mr. COBLE. Thank you very much, Mr. Marquis. And for my geographic edification, Mr. Marquis, from where does your wife hail in 

North Carolina? 

Mr. MARQUIS. Charlotte, sir. 

Mr. COBLE. That is our largest city. 

Mr. MARQUIS. And my parents went to school at Black Mountain. 

Mr. COBLE. I know it well. 

Mr. Eisenberg. 

TESTIMONY OF RON EISENBERG, DEPUTY DISTRICT 

ATTORNEY, PHILADELPHIA, PENNSYLVANIA 

Mr. EISENBERG. Thank you, Mr. Chairman, and Members of the 

Committee. Mr. Chairman, for your information, my wife actually 

lives in Greensboro at this moment, and I hope to be able to join 

her there in the future. 

Mr. COBLE. My district, and I will give you all the time you want. 

Mr. EISENBERG. Mr. Chairman, I have served as a prosecutor for 

24 years. I am the supervisor in the law division in the Philadelphia District Attorney’s Office. It is a group of 60 lawyers. Many 

of them handle regular State court appeals, but more and more of 

them have to devote themselves exclusively to Federal habeas corpus work. In fact, in the last decade the number of lawyers handling just Federal habeas corpus review of State court convictions 

in my office has increased by 400 percent. 

Now, too often the debate about the proper scope of Federal habeas corpus review comes down to disagreement about the value of 

the death penalty and the justice of imprisonment and punishment 

generally. And to be sure, many Federal courts seem flatly unwilling to affirm capital sentences. That is certainly true of my jurisdiction in Pennsylvania where almost every single contested death 

sentence litigated on habeas corpus review has been overturned by 

Federal courts; over 20 cases, only one has been affirmed. But the 

problem I want to address today is not simply one of results, and 

Federal court intrusion to State court convictions cannot be justified either by opposition to the death penalty or as vindication of 

civil rights. The truth is that whether or not they actually reverse 

a conviction, Federal habeas corpus courts drag out litigation for 

years of unjustifiable delay, creating exorbitant cost for the State 

and endless pain for the victims. 

We have detailed several of these cases in my written testimony, 

Your Honor. The most prominent and perhaps our most prominent 

death penalty defender from Philadelphia is a cop killer named 

Mumia Abu-Jamal. Now he has become a famous person around 

the world. There is a lot of disagreement about his alleged innocence, but we are just trying to get his case litigated through the 

courts. 

This murder occurred in 1981. It was just around the time when 

I started in the DA’s office. I helped work on the trial of that case, 

and now I am working on his Federal habeas corpus review, and 

we’re not close to done. Several years ago a United States District 

Court judge granted him a new sentencing hearing, threw out the 

death penalty but affirmed the conviction, rejecting all of his claims 

of innocence. That was in 2001—that ruling was in 2001. We appealed it, and we haven’t even gotten close to a ruling yet. In fact, 

90

the court hasn’t even allowed us to file our briefs in that case almost 4 years later. That is on top of the two decades of delay we 

had before we even got to that ruling in 2001 in this case. Now it 

is closing in on 25 years, haven’t been able to file our briefs in the 

Third Circuit Court of Appeals. 

We have several other cases of the same nature where cases sit 

for years waiting for elementary procedural steps to occur in Federal court, not just for decisions to be made, not just for briefs to 

be mulled over and carefully considered, but even for elementary 

preliminary decisions to be made about allowing the filing of papers. This happens in case after case, and it happens even in cases, 

as we have detailed in the written testimony, where the defendant 

himself doesn’t want to challenge his conviction. Where even the 

defendant says, I want to give up my Federal habeas corpus appeals, the Federal courts will not allow him to, and lengthen and 

stretch out the litigation, despite the wishes of the defendant himself. 

Now, from talking to my colleagues around the country, I know 

that their experiences are similar, and I think that these cases 

demonstrate the inherent imbalance in the exercise of Federal habeas corpus review over State criminal convictions. 

Federal courts have great power simply because they’re last in 

line when it comes to our cases, but they have little responsibility 

because they’re so far removed in time and space from the circumstances of the crime and the subtleties of the State proceedings. Accordingly, they have small motive to act expeditiously 

or efficiently to give credit to the judgments of their brethren in the 

State courts or to consider the needs of crime victims. 

Bill No. 3035, the ‘‘Streamlined Procedures Act of 2005,’’ will address all of those issues and will prevent Federal courts from 

stretching out these cases in ways that no one on either side of the 

underlying questions can really debate, it seems to me. Whether 

you are against the death penalty or for it, I don’t know how you 

justify a case like Mumia Abu-Jamal sitting waiting for a briefing 

to occur for 4 years. That is the kind of reform that this bill will 

enact, and we urge your support. 

Thank you. 

[The prepared statement of Mr. Eisenberg follows:]

PREPARED STATEMENT OF RONALD EISENBERG

I am a deputy district attorney in Pennsylvania, and I am here to talk about what 

really happens when state court convictions are subjected to habeas corpus review 

in the federal courts. 

I have served as a prosecutor for 24 years. I am the supervisor of the Law Division of the Philadelphia District Attorney’s Office, a group of 60 lawyers. Many of 

those lawyers handle regular appeals in the Pennsylvania appellate courts. But 

more and more of our attorneys must devote themselves full time to federal habeas 

corpus litigation. In the last decade, the number of lawyers employed exclusively on 

habeas work has increased 400%. The convictions that reach federal habeas review 

are for the most serious crimes that can be committed against a human being—murder, rape, violent robberies and burglaries, serious beatings and shootings. 

Too often, the debate about the proper scope of federal habeas corpus review 

comes down to disagreement about the value of the death penalty, and the justness 

of imprisonment and punishment generally. To be sure, many federal courts seem 

flatly unwilling to affirm capital sentences. In Pennsylvania, for example, almost 

every single contested death sentence litigated on habeas—over 20 cases in the last 

decade—has been thrown out by federal judges; only one has been upheld. 

91

But the problem is not simply one of results, and federal court intrusion into state 

convictions cannot be justified either by opposition to the death penalty or as vindication of civil rights. The truth is that, whether or not they actually reverse a conviction, federal habeas courts drag out litigation for years of utterly unjustifiable 

delay, creating exorbitant costs for the state and endless pain for the victims. Here 

are just a few examples of what it’s like.

Mumia Abu-Jamal

Over two decades ago, in December 1981, Mumia Abu-Jamal murdered Officer 

Danny Faulkner during a traffic stop. First he shot the officer in the back; then, 

after the officer fell to the ground, he shot him in the face. In 2001, after twenty 

years of litigation, a federal district judge upheld the first degree murder conviction 

but overturned the sentence of death. Both sides appealed. And there the matter 

has sat for going on four years. No decision; no oral argument; not even a briefing 

schedule, which is normally the very first step in the appellate process. 

The defendant has become famous over all this time; he has managed to turn 

himself into a celebrity. But no matter where one comes down on this case, how is 

it possible to justify a federal habeas process that does not even begin to resolve 

an appeal—let alone actually resolve it—after four years’ time? Even if one buys 

Mumia’s ever-changing, bogus claims of innocence, why does he sit in jail while 

nothing happens? And what about the widow Danny Faulkner left behind?

William Holland

This kind of delay is hardly unique to high-profile cases like Jamal. William Holland is not famous. Holland broke into the home of a woman in 1984. He tied her 

up, raped her, and stabbed her repeatedly. The victim was 71 years old. Holland 

had two full rounds of appeals in state court, but his claims were unsuccessful. A 

federal court judge nonetheless threw out his death sentence in 2001. The prosecution immediately appealed. And ever since, the federal appeals court has been dallying about what issues it will allow the defendant to raise—if and when it ever 

gets around to looking at any. No briefs have been filed, no argument has been held, 

no decision has been rendered.

Joseph Kindler

In 1982, Joseph Kindler kidnapped a witness who was scheduled to testify against 

him in a burglary trial. Kindler beat the man over the head with a baseball bat, 

hit him with an electric prod, put him in the trunk of a car, drove him to a river, 

tied a cinder block around his neck, and drowned him. After his conviction and sentence of death, Kindler sawed through a barred window and escaped from prison. 

He fled to Canada, which has no death penalty. After his arrest there, he escaped 

from prison again, and was re-apprehended only after his appearance on ‘‘America’s 

Most Wanted.’’ He then fought extradition for several years, until his eventual (and 

quite involuntary) return to this country. 

Once back, Kindler pursued appeals, but the state courts ruled that he had forfeited his right to do so by virtue of his escapes from legal process. The federal habeas courts, to which Kindler turned in 1999, were more indulgent. The district 

court immediately granted a stay of execution, even though the state had not yet 

scheduled any execution. The prosecution appealed the stay, the parties filed 

briefs—and nothing happened. Two years later, after prodding by the prosecution, 

the federal appeals court finally scheduled oral argument in 2001, vacated the stay 

of execution, and sent the case back to the lower court to consider the legal claims 

that had been rejected by the state courts. 

True to form, the lower federal court then overturned Kindler’s death sentence, 

after two more years of litigation. The state appealed this 2003 ruling, and the case 

has now been pending on appeal for another two years.

Donald Hardcastle

During a burglary in 1982, Donald Hardcastle murdered an elderly couple and set 

their house on fire. Each victim had been stabbed over 30 times. Hardcastle unsuccessfully appealed in state court, two separate times. He started a federal habeas 

action in 1998, and three years later the federal judge threw out the conviction entirely. We challenged that ruling and received a partial victory—after another three 

years of litigation—when the federal appeals court told the district judge to start 

over, ruling that he should at least have granted us a hearing before automatically 

accepting all the defendant’s factual allegations as true. 

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By then it was the year 2004. After yet another adverse ruling by the district 

judge, we appealed again. The appeals court has not yet allowed briefing, and there 

has been no action whatever on this case for the past six months—a period of time 

longer than many appeals take from start to finish.

Brian Thomas

Brian Thomas sexually assaulted and murdered a woman in 1985, with a crutch. 

The crutch was used to penetrate the victim’s body through the vagina and rectum, 

while she was still alive, causing a massive tear that extended into the chest cavity. 

Thomas was convicted and sentenced to death, and the sentence was upheld 

through two separate rounds of appeal in state court. 

Thomas filed a federal habeas petition in 2000. There was then briefing, counterbriefing, and counter-counter-briefing before the federal district judge, which took 

three years. At that point the federal judge took no action on the matter at all for 

another year and a half. Just this month the habeas judge finally issued an order. 

But the order neither grants nor denies the habeas petition. Instead the judge has 

merely scheduled the case for oral argument—18 months after the last briefs were 

filed with him.

Michael Pierce

Federal habeas litigation ensures undue delay not only at the expense of victims 

and prosecutors, but even, in many cases, against the wishes of the defendants 

themselves. Michael Pierce is one such case. Pierce repeatedly argued with his parents and threatened to kill them. After they kicked him out of their house, he set 

it on fire with a can of gasoline while they were inside. His mother and father died, 

along with his 95-year-old grandmother. The crime occurred in 1989. 

From the time of the trial, Pierce declined to make the usual claim in capital 

cases—mental infirmity. He chose not to allow his lawyers to secure records or experts for the purpose of creating a psychological defense. The state courts upheld 

his conviction and sentence, ruling that Pierce’s lawyers did not act improperly by 

accepting rather than overriding his decision. 

On federal habeas corpus review, initiated in 2002, a new set of defense lawyers 

attempted to circumvent Pierce’s desires and the ruling of the state courts. At the 

lawyers’ request, a federal judge issued an order directing state corrections officials 

to remove Pierce from prison and transport him to a hospital chosen by the lawyers, 

to undergo testing by experts hired by the lawyers. The judge thereafter required 

state officials to place Pierce in an involuntary mental health commitment. 

All this was done without any previous finding that Pierce was incompetent, or 

any hearing concerning his mental status. Indeed the habeas court initially entered 

its order ex parte—without any notice to the prosecution, or even to the defendant. 

The court explicitly directed the state prison officials to keep the whole affair secret 

from prosecutors. We found out about it only after the ex parte order was inadvertently placed on the public court docket. We then appealed. 

Shortly after the appeal was filed, the federal court directed the parties to address 

as a preliminary matter whether the timing of the appeal was procedurally proper. 

That was in March 2004. Since then, a period of 15 months, the appeal has remained pending; in fact the court has been completely silent, making no decision 

about whether it will even let the appeal proceed. If the appeal is dismissed, Pierce 

will be automatically subject to the district judge’s orders, and the court presumably 

will, at some point years in the future, rule on the sentence.

Hubert Michael

Hubert Michael’s is another case illustrating the intrusiveness of the federal habeas process. In 1993, Michael kidnapped a 16-year-old girl and took her to a remote 

rural area. There he shot her with a .44 magnum handgun: once in the chest, once 

in the back, and once in the back of the head. His explanation for the killing was 

that he felt resentment toward women generally because he had been charged in 

an unrelated rape case. 

At trial, after an extensive colloquy, Michael chose to plead guilty to first degree 

murder. Later, at a separate sentencing hearing, and after consultation with counsel, he elected not to present mitigation evidence, and received the death penalty. 

On his automatic direct appeal, he indicated his desire that the sentence be affirmed. A collateral petition was subsequently filed in state court on his behalf. Michael sought to withdraw it, and after a hearing determined that he was fully competent, his request was granted. On appeal the state supreme court, in an abundance of caution, addressed and denied as meritless all the claims raised by counsel. 

93

Meanwhile Michael’s attorneys filed a federal habeas petition on his behalf. He 

sent letters to the habeas court asking to withdraw the petition and dismiss counsel. 

The federal court insisted on another mental health review. After three more years 

of litigation, the court found that Michael was indeed competent, and dismissed his 

habeas petition as requested. 

The federal appeals court refused to accept this result. The court appointed counsel for Michael over his objection, and asked him again, after warning him of the 

consequences, whether he wished to withdraw his appeals. Michaels said clearly 

that he did. Apparently that was the ‘‘wrong’’ answer. The appeals court responded 

with a ruling that, since Michael had a lawyer, his own desires must be disregarded, 

and his habeas corpus petition had to proceed. For good measure the appeals court 

told the district judge to ignore any future similar assertions by Michael. That is 

where the matter stands, after 12 years of insistence by Michael that he does not 

wish to challenge his conviction.

Lisa Lambert

The case that perhaps best epitomizes intrusiveness and delay by federal habeas 

corpus courts is not even a death penalty. Lisa Lambert was a high school teenager 

whose former boyfriend had transferred his attentions to another girl. Lambert was 

furious. She began to stalk and harass the other girl. Finally, just before Christmas 

in 1991, Lambert entered the victim’s home with two cohorts in tow and confronted 

her. Then she slit her throat. Lambert was convicted of first degree murder. Her 

appeal in state court was denied. 

Lambert filed a federal habeas petition in 1996, and the federal judge promptly 

appointed her a high-powered law firm. Within days of the filing of an amended petition, the court ordered a conference and scheduled an evidentiary hearing—even 

though none of the legal claims had yet been raised in state court, as required by 

law. Within three months (an amazing speed record in a habeas case) the judge had 

overturned Lambert’s murder conviction and released her onto the street. In doing 

so he declared her actually ‘‘innocent’’—even though she admitted that she had participated in the crime, and merely quibbled about the degree of her culpability. The 

habeas judge also explicitly condemned the state prosecutor and police, accused 

them of gross misconduct, and attempted to initiate a federal criminal investigation 

against them. 

On appeal, the federal appellate court reversed, ruling that Lambert had to go 

back to state court first. The state trial judge—who is now himself a federal judge—

then held a months-long evidentiary hearing, and wrote a 200-page opinion. In it 

he meticulously examined and debunked the various assertions that had been put 

forth by Lambert and so easily accepted by the federal habeas judge. The state 

judge’s conclusions were in turn upheld in an 80-page opinion of the Pennsylvania 

appellate court. 

Lambert then came right back to federal habeas court. There the previously assigned judge announced his intention to ignore everything that had happened in 

state court, and to release the ‘‘innocent’’ defendant all over again. In the end, however, the judge was compelled to disqualify himself. Another judge was assigned. 

This judge upheld the conclusions of the state court, and the federal appeals court 

followed suit. Four weeks ago, the United States Supreme Court denied review—

finally bringing the 1996 habeas action to a close. 

The result was the right one in the end—but it took nine years, thousands of attorney hours, and unimaginable anguish to the victim’s parents and family to undue 

the damage caused by the original federal habeas judge. 

These cases—and they are typical of my colleagues’ experiences in other parts of 

the country—demonstrate the inherent imbalance in the exercise of federal habeas 

review over state criminal convictions. Federal habeas courts have great power, simply because they are last in line. But they have little responsibility, because they 

are so far removed in time and space from the circumstances of the crime and the 

subtleties of the state proceedings. Accordingly, they have small motive to act expeditiously or efficiently, to give credit to the judgments of their brethren in state 

courts, or to consider the needs of crime victims. 

The only way that balance can be restored is by Congressional statute. H.R. 3035, 

the Streamlined Procedures Act, will do much to limit overreaching by federal habeas courts, while still providing an appropriate forum for criminal defendants raising legitimate constitutional challenges to their convictions. Section 2 of the bill, for 

example, requiring dismissal with prejudice of claims that have not been ‘‘exhausted’’ in state court, will help prevent another Lisa Lambert abuse, where the 

federal judge improperly granted relief on the basis of claims that the state courts 

had never had a chance to consider. 

94

Similarly, Section 4 of the bill, concerning claims that were procedurally defaulted 

in state court, will address cases like Joseph Kindler, who was readily able to secure 

relief in federal court despite forfeiting his right to review by escaping from prison 

every chance he got. 

Section 8, establishing time limits for federal habeas appeals, would address the 

indefensible delay that routinely occurs during the appellate process in cases like 

Mumia Abu-Jamal and William Holland. And Section 9, which effectively reactivates the special provisions for capital sentences that were first put in place by the 

1995 AEDPA legislation, will provide at least a semblance of judiciousness when 

death penalties are challenged in federal habeas court, as in the Brian Thomas case. 

Other notable provisions of the bill include Section 11, which would prohibit the 

kind of secret, back-door rulings that occurred in the Michael Pierce case, and Section 12, which will require federal courts to afford the same rights to victims of state 

crimes that are now statutorily mandated for victims of federal crimes. 

These and the other sections of the Streamlined Procedures Act address distortions of the habeas litigation process that cannot be justified under the central principle of federal habeas review: comity between the state and federal judicial systems. The substance of H.R. 3035 has been endorsed by the Pennsylvania District 

Attorneys Association, the Attorney General of Pennsylvania, and the Pennsylvania 

Chiefs of Police Association. I am sure it will receive similar support in other jurisdictions. The bill merits the support of this Committee as well. Thank you.

Mr. COBLE. Thank you, Mr. Eisenberg. 

Professor Harcourt, you are going to be our clean-up hitter, but 

I am going to ask you to suspend for a moment. We have this series of votes on the floor. And gentlemen, I hate to inconvenience 

you all and those in the audience, but I think it is going to take 

close to an hour. We have one 15-minute vote, and I am told six 

5-minute votes. So if you all will just rest easy, and we will be back 

as soon as we can. We will momentarily be in recess. 

[Whereupon, at 1:40 p.m., the Subcommittee was recessed, subject to the call of the Chair.] 

[2:55 p.m.] 

Mr. COBLE. Professor, you are recognized for 5 minutes. 

TESTIMONY OF BERNARD E. HARCOURT, PROFESSOR OF LAW/

FACULTY DIRECTOR OF ACADEMIC AFFAIRS, UNIVERSITY 

OF CHICAGO 

Mr. HARCOURT. Thank you, Chairman Coble, Ranking Member 

Scott, and Members of the Committee for inviting me to comment 

on H.R. 3035, the ‘‘Streamlined Procedures Act of 2005.’’ I have 

submitted a full statement that addresses in detail the specific 

problems with the provision of this bill. I have also prepared a 

statement. But before I begin, let me refocus our attention on what 

precisely we are talking about here. 

H.R. 3035, the bill under consideration today, strips jurisdiction 

from all Federal courts to review all Federal habeas corpus claims 

in State death penalty cases. Now there is one precondition and 

there is one limited exception. The precondition is that the United 

States Attorney General certifies that the State provides competent 

counsel in State post-conviction. And the one limited exception is 

a claim of innocence. And I say it’s extremely limited because it’s 

only for claims of DNA evidence. It is only in cases where no reasonable fact finder would find the petitioner guilty of the offense. 

So with that precondition and with that limited exception, there’s 

no more Federal habeas corpus in State death penalty cases. 

In addition, the provision has a number of other provisions that 

are equally radical and that apply to all criminal cases, not just 

95

death penalty cases, but ordinary drug offenses, white collar crime 

and any other criminal case. 

Now I would like to emphasize today three central problems with 

this bill. 

First, contrary to the title of the legislation, the Streamlined Procedures Act will do nothing to streamline the Federal appeals process, but will bog down the Federal courts, actually delaying justice 

to victims of crime. This is a radical measure that would overturn 

a whole series of Supreme Court cases. 

Congressman Conyers mentioned three cases earlier. When I go 

through the bill, I see five Supreme Court cases that are overturned by this bill: Rhines v. Weber; Wainwright v. Sykes; Carey v. 

Saffold; Lindh v. Murphy; and Ohio Adult Parole Authority v. 

Woodard. That is going to trigger spawn a huge round of Constitution litigation about Federal habeas corpus that will consume the 

Federal courts and the United States Supreme Court for at least 

a decade. It’s going to complicate and delay the litigation and it’s 

going to invite constitutional challenges. The reason very simply is 

that the bill strips Federal Court jurisdiction to determine many 

Federal issues and undercuts the Supreme Court’s efforts to clear 

up uncertainties regarding the reform package that Congress enacted in 1996, the Antiterrorism and Effective Death Penalty Act, 

the AEDPA. 

Now it’s taken approximately a decade for the Federal courts and 

for the United States Supreme Court to begin to iron out what 

Congress did in the AEDPA and to render it somewhat functional, 

well understood, and applied. Just this term, just this week, we 

have had a number of decisions from the United States Supreme 

Court trying to interpret the AEDPA from 1996. It has literally 

taken a decade. And this legislation is going to do the same thing 

and provoke the same decade-long round of interpretive schedules 

and constitutional challenges. 

Second, the Streamlined Procedures Act undermines the recent 

bipartisan action by Congress to address inaccuracies in the criminal justice system. I’m referring specifically to the Innocence Protection Act, which was enacted as part of the Justice for All Act, 

and which was a bipartisan 5-year effort that was voted 393 to 14 

in this House. It passed by voice vote in the Senate before being 

signed by President Bush in October of 2004. The passage of the 

Innocence Protection Act was significant because it demonstrated 

the sense of Congress that we must provide additional safeguards 

to protect against inaccuracies and injustice in our criminal justice 

system, not to eliminate long-established principles concerning Federal review of criminal cases. 

And it’s important to note also that some of the provisions in the 

bill H.R. 3035 are in direct conflict with the IPA. For instance, in 

the IPA, a petitioner is entitled to DNA testing if it may produce 

new evidence that would raise, quote, ‘‘a reasonable probability of 

innocence.’’ In contrast, under the SPA, the bill we’re looking at 

today, if the Attorney General approves the State system for postconviction representation, a petitioner can’t get relief unless he establishes by clear and convincing evidence a different kind of 

standard, his innocence. So there are conflicts between those two 

bills. 

96

Third, the Streamlined Procedures Act would increase the risk 

that wrongfully convicted petitioners would be executed or languish 

in prison. Many of the proposals in this bill would preclude claims 

brought by wrongfully convicted prisoners. By closing the door on 

the underlying Federal claims that support evidence of actual innocence, this legislation effectively closes the door on habeas corpus 

to actual innocent prisoners, possibly some on death row. 

Now the stringent provisions of the Streamlined Procedures Act 

will result in serious harm to ordinary criminal defendants, especially those without lawyers who are unable to properly navigate 

the law. 

In summing up, I would like to make this critical point clear 

about the legislation. Opposition to this bill does not represent opposition to the death penalty. And the two issues should not be 

confused here. This bill goes much further than dealing just with 

the death penalty. It deals with all State crimes from ordinary 

drug possession all the way to accounting practices, and it strikes 

at the very heart of the checks and balances that makes our criminal justice system unique in this country and the world. 

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Mr. COBLE. Thank you, Professor. And I thank each of the panelists. As I told you previously, we impose the 5-minute rule against 

us as well, so if you could keep your responses as terse as possible. 

And I suspect we will have a second round because of the interest 

that this matter has generated. 

Mr. Marquis, in your testimony you attach a critique of the 

Death Penalty Information Center list of persons freed from death 

row. Describe in general what the analysis shows. How does the 

analysis of the DPIC position further the debate on the death penalty in America? And what is meant by the term ‘‘false exonerations?’’ Mr. MARQUIS. That summary needs to be credited to Ward 

Campbell, who is the supervising assistant attorney general in 

California who has been working on it for years. And the Death 

Penalty Information Center is a very neutral sounding group that 

is an anti-death penalty group that puts out a list, and it is the 

one that’s generally acknowledged, with 115 names of people supposedly exonerated. What Ward did is go through every single case 

to see whether or not there really was evidence of innocence. And 

what it turns up is that in a majority, if not a very large number 

of the cases, that there is very little evidence of actual innocence. 

And that in fact, many other cases, there is considerable evidence 

of guilt. 

My personal favorite is a guy named Jay Smith from Pennsylvania, who was off death row and his case thrown out. He then 

sues the Pennsylvania State Police. And the Third Circuit Court of 

Appeals, not known for its conservatism, throws out his case and 

says, even if the prosecutor misconducted himself, we are still convinced you are guilty. It goes to the issue I spoke of, using the word 

‘‘innocent’’ and ‘‘exonerated’’ when you are talking about people 

really has to be done very carefully. And Mr. Scott talked about 

people exonerated by DNA. We need to know how many that is. It’s 

12 people. 

Mr. COBLE. Mr. Eisenberg, in Professor Harcourt’s testimony, he 

asserted that the Streamlined Procedures Act would complicate the 

litigation of all criminal cases, especially death penalty cases, and 

delay resolution of these cases at the expense of victims and their 

families. Do you agree with this assessment? 

Mr. EISENBERG. Mr. Chairman, I am heartened that we recognize 

that this delay is a concern because of the difficulties it causes for 

victims and their families. I wish that more Federal courts were 

cognizant of that. It’s certainly not true that this bill will delay 

things, because in the absence of this bill we face endless delay. 

Nothing has been resolved. Nothing has been ended. The delays 

that we face are only growing, because it’s not a question of the Supreme Court cleaning up this or that little area of law. 

I argued in the Supreme Court just a few months ago—and again 

I did last year, and we expect to see more cases go there in the future, whether or not the law is changed—we are going to be facing 

lengthy rounds of litigation in the lower courts that then apply 

those Supreme Court cases. And judges who want to use those 

cases, however many precedents there are, in order to drag things 

out in the lower courts, they are going to be able to do that no matter what the statute is. That is the lesson of the AEDPA. 

116

Mr. COBLE. Mr. Sabin, in addition to the provisions contained in 

this bill, are there any additional death penalty legislative recommendations that the Justice Department would like for our 

Committee to consider? 

Mr. SABIN. The answer is yes, Mr. Chairman. I have had a 

chance to discuss with some of the experts at the Justice Department. For example, under Atkins v. Virginia, where the Supreme 

Court held that the execution of a mentally retarded offender 

would violate the eighth amendment, we would recommend that a 

procedure be put into place legislatively to determine whether a 

capital defendant’s mental capacity is such that a death sentence 

would be appropriate or would be foreclosed under the Atkins decision. There are certain notice of intent provisions that are required 

to be filed a reasonable time before trial, and we believe that a 

statutory clarification regarding that notice of intent, based upon 

a Fourth Circuit case, would be helpful. 

There is also certain clarification regarding the meaning of specific statutory aggravating factors; for example, the pecuniary gain 

aggravating factor, that I think legislation would be helpful. And 

the Justice Department on those and other matters would work 

with the Committee to make sure that the Committee understood 

the Justice Department’s recommendations, if appropriate, are enacted. 

Mr. COBLE. Have you all conveyed that information to our Committee or Subcommittee? 

Mr. SABIN. I believe the discussions have occurred. I can follow 

up and make sure that some of those are specifically forwarded to 

the Subcommittee. 

Mr. COBLE. I thank you, sir. My 5 minutes have expired, but I 

didn’t see the red light. But I will recognize the distinguished gentleman from Michigan, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you very much, Mr. Chairman. We seem to 

have three witnesses that are, I think, in agreement with each 

other. So I turn to Professor Harcourt. Will we face endless delay 

if we don’t enact this—one of these two measures that are before 

us? Could you give us your views on that, sir? 

Mr. HARCOURT. We are in the process of having ironed out basically the provisions of the AEDPA. The Supreme Court has resolved most of the questions that are outstanding. And at this 

point, the Federal death penalty and ordinary criminal cases that 

are going through habeas corpus should be proceeding at a much 

more rapid pace as a result of the AEDPA. It appears that there 

are, in fact, less cases that are being overturned by Federal courts 

as a result of the reforms that—the package of reforms that were 

passed in 1996. And so I think it’s pretty clear there is less and 

less delay as a result of that reform. 

Mr. CONYERS. Thank you very much. Now let’s get back to the 

constant debate that will probably not be resolved in this Subcommittee today. But is the death penalty a deterrent from your 

studies? 

Mr. HARCOURT. Well, on the question of deterrence, I think it’s 

far too early to make any conclusions about the validity of the studies, of the new econometric studies. 

117

Mr. CONYERS. Sorry to hear that, because I had thought I was 

able to say that there is no deterrent effect. 

Mr. HARCOURT. The new studies that have come out from the 

economists, et cetera, are kind of divided on the issue of deterrence. 

There are some that suggest there is a deterrent effect to the death 

penalty and there are others that suggest that if you cut it in different ways, there isn’t a deterrent effect to the death penalty and, 

in fact, there is a brutalizing effect to executions. We have had cycles of social science debates about issues such as deterrence. In 

the 1970’s, there was significant debate over the Ehrlich study, 

which resulted in the National Academy of Science report that essentially said there is no evidence of deterrence. 

What we have right now is a new series of studies. And frankly, 

the honest truth is that it is much too early to form any conclusions based on those studies. The death penalty is a highly ideological and political debate and that extends into the social sciences. 

Mr. CONYERS. Counsel—our counsel, Bobby Vassar, has handed 

me a letter from assistant Federal Defender John Rhodes, sent to 

him this month from Montana, Federal Defenders of Montana, in 

which I will read the operative sentence: The 159 cases to which 

I referred were those in which post-conviction DNA testing has 

yielded conclusive proof of innocence. Of these 159 people, 14 have 

been sentenced to death, 39 to life imprisonment, and others to 

various terms. 

And I was wondering, does that comport with your understanding of how these statistics are falling out? 

Mr. HARCOURT. Yes, Congressman Conyers. My number is 156. 

I have 156 DNA exonerations around the country. 156. We are 

talking about proof based on DNA that this wasn’t the right person. Of those, my numbers were 12 death penalty DNA exonerations. I think you mentioned 14. We might be off by a year or so. 

I have approximately 12 death penalty DNA exonerations. The important point to understand here, of course, is in the exoneration 

context, you have to distinguish DNA exonerations from non-DNA 

exonerations. And when you don’t have DNA exonerating someone, 

then it’s practically impossible to get everybody on board to agree 

that the person was actually innocent. There are going to be very 

few cases where there isn’t—there was evidence that resulted in a 

conviction originally and there is going to be recantation, Brady 

evidence that reveals new suspects, et cetera. But those are the difficult cases where, in fact, there is proof beyond a reasonable doubt 

of innocence. But there is going to be possibly lingering doubt, particularly like someone like Mr. Marquis. If you look at the list, the 

ones that are going to be challenged are the ones where there isn’t 

a clear case of DNA evidence, but you are going to see that actually 

beyond a reasonable doubt that there’s evidence in the case. 

I represented someone myself who was innocent. It wasn’t a 

DNA case. And I can tell you, I sat there with the two investigators 

from the Alabama Bureau of Investigation and we were trying to 

resolve, after we had proven his innocence to their satisfaction, 

were trying to resolve who had committed this crime. I had the 

ABI with me working on this case. I can assure you there are still 

people who are going to have questions about that case because 

there wasn’t DNA. 

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Mr. COBLE. If you could wrap up so we can move along. The gentleman’s time has expired. 

Mr. HARCOURT. If you look at the list, you need to go through 

them case by case. In the case of Ronnie Burrell, it suggests there 

wasn’t evidence. In fact, the motion that the prosecutor filed in 

that case said there was a total lack of credible evidence linking 

Graham and/or Burrell to the crime. So it’s always when there isn’t 

DNA evidence, there’s always a way to say that it’s not a case of 

innocence. But we have had over 160 of those cases as well. 

Mr. CONYERS. Thank you, Chairman Coble, for your unusual generosity. 

Mr. COBLE. Thank you, Mr. Conyers. I appreciate that. 

In order of appearance, the gentleman from California, Mr. Lungren, is recognized for 5 minutes. 

Mr. LUNGREN. Thank you, Mr. Chairman, for your customary 

courtesy. And——

Mr. COBLE. And I thank you for that. 

Mr. LUNGREN. I was Attorney General for 8 years. We did as 

much habeas corpus as any office in the country would. Ward 

Campbell worked for me for 8 years. I hope we put this in proper 

context. 

The suggestion has been made that somehow habeas corpus is 

the only way we protect defendants’ rights. Capital cases, you extend more rights to the defendant than any other type of case 

you’ve got. You have bifurcated trials. You have to prove guilt or 

innocence. Then you go to the sentence. That sentence can be overturned by the judge. At least in California, you have immediate appeal, combined appeal, both direct appeal and habeas to the Supreme Court automatically. Whether the defendant wants it or not, 

it is done. 

Then you go into the Federal system. And let us remember what 

we are talking about. As Chief Justice Rehnquist once said in a dissent, the trial should be the main event unless we are willing to 

give up the trial by jury as the essence of our criminal justice system. Frankly, the Federal habeas corpus is the most removed process that comes in after the fact. By and large, they don’t have an 

opportunity to see the witnesses to judge their demeanor to see 

whether or not they are credible. 

And I never could understand why folks believe that when a particular judge who happened to be sitting on a Federal District 

Court in Los Angeles, named Judge Lucas, became the chief justice 

of the California Supreme Court, suddenly he lost all wisdom and 

direction because he no longer dressed in a Federal Court but now 

dressed in the California Supreme Court. 

Carol Fornoff testified before this Subcommittee that her 13-

year-old daughter was murdered in 1984 and the last State court 

appeal was in 1992. The killer filed his first habeas petition in U.S. 

District Court, where it remained for 7 years before it was dismissed. Then the Ninth Circuit sent the case back to the district 

court for more hearings, where it remains today. Someone—Professor Harcourt mentioned the brutalizing effect of this. What 

about the brutalizing effect on the families? The Supreme Court 

told us in the Turpin case that it was up to Congress to write the 

procedures for habeas corpus and to make any changes. They inVerDate 0ct 09 2002 14:22 Oct 03, 2005 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\063005\22189.000 HJUD1 PsN: 22189
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vited the Congress to look at it and make changes. Contrary to any 

suggestion that this is out of our area of expertise, I would cite the 

Turpin case which recognized it’s exactly in there. 

I don’t know about all the studies you are talking about. I can 

talk about a case that I argued before the United States Supreme 

Court. It was called the Sandoval case and involved a murderer 

who killed four people, two in a gang-related incident, and then 

later on two people who had overheard what he talked about, who 

were going to be witnesses, and he killed them. We won the case 

in the Supreme Court. It went back. And, ultimately, the death 

penalty was set aside for other reasons. It had nothing to do with 

exoneration. The guy killed four people. Four people. 

I guess my question, Mr. Eisenberg, to you would be, there has 

been a suggestion we don’t need this. There has been the suggestion that you know, if we do this, the courts are going to screw it 

up again and going to take time to interpret it. The suggestion is 

that we in Congress ought to tie our hands and not do anything 

because it’s going to add more delay. I know the Ninth Circuit. 

That is one of the reasons I introduced this bill. 

The Ninth Circuit, despite what we did in 1996—and my office 

wrote the language which was adopted by the Congress at that 

time—the Ninth Circuit has managed to, in exhaustion cases and 

procedural default cases, to get around what I think was the intent 

of the law to have these interminable delays. So I am familiar with 

the Ninth Circuit. 

Could you tell me in your experience, even though we passed 

that law in 1996 to try and take care of that, why would we need 

something such as suggested in the bill? 

Mr. EISENBERG. Because there were some judges, Congressman, 

who didn’t like what was in that bill. I’m sure they won’t like what 

is in this one. It is the job of the Congress to channel the law in 

the direction you think it ought to go. 

Procedural default, for example, well established concept. We 

have thrown it around. It’s a habeas term. What a Federal judge 

in my neck of the woods does with it is to say, well, there was a 

State procedural default where the defendant didn’t comply with 

some rulings in State court, but I don’t like that rule so I’m going 

to call it inadequate or insufficient in some way, and then I get to 

ignore—and therefore I get to ignore what the State court did, and 

I get to make my own decision about the legal questions here. And 

that kind of litigation sounds simple describing it. That kind of litigation takes years in my part of the country and from my discussion with others. 

The same is true around the United States. It is not a question 

of whether the concept can be simply uncontroversial, described between habeas lawyers. It is a question of what the courts then do 

with that in order to apply it in particular cases. And however well 

established the concept is, if the court wants to use it as a means 

of delay and as a means of getting around a State court, it can. If 

Congress takes that away, that has a positive impact. 

Mr. LUNGREN. Sounds like a war of attrition. 

Mr. COBLE. Gentleman’s time has expired. 

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After we adjourn this hearing, we are planning to mark up the 

Secure Access to Justice and Court Protection Act of 2005. So if you 

all could remain while we do that, I would be appreciative. 

The distinguished gentleman from Massachusetts. And I want to 

say to him that prior to your arrival, I spoke favorably about your 

work on the DNA legislation the last session. You, and Chairman 

Sensenbrenner was involved, as was Mr. Scott and I. Good work, 

and I’m pleased to recognize you. 

Mr. DELAHUNT. Thank you very much, Mr. Chairman. I would be 

interested in whether Mr. Sabin, Mr. Marquis, and I can’t see that 

far, Mr. Eisenberg. You are familiar with the Justice for All Act? 

Mr. SABIN. Yes, sir. Generally. 

Mr. DELAHUNT. Did you support it? 

Mr. SABIN. Personally, I didn’t have a chance to weigh in. Justice 

Department supported it, and we are implementing the victim’s 

provision. 

Mr. MARQUIS. I am very familiar with it. And the National District Attorneys Association supported most of the parts. 

Mr. DELAHUNT. I am speaking about yourself. 

Mr. MARQUIS. Senator Smith was one of the cosponsors. 

Mr. DELAHUNT. I’m asking about Marquis, not about Smith. 

Mr. MARQUIS. I had some problems about some of the issues 

about when you describe innocence. But for the most part, yes. 

Mr. EISENBERG. Congressman, what we did in Pennsylvania is 

actually go ahead and draft our own before the Federal version was 

passed. I participated in the drafting of that. Much of it was modeled on the legislation that was originally introduced in the Congress, and I’m very glad we passed that in the States. In fact, while 

discussions were going on in Washington, many States passed their 

own DNA legislation. 

Mr. DELAHUNT. I noted that. And I applaud the States for their 

efforts. 

Let me just say this, Mr. Chairman. This is a very—I’m referring 

to the Streamlined Procedures Act of 2005, offered by my good 

friend and someone who I have profound respect for from California. But I do have very serious concerns about this. 

I guess I agree with Senator Specter who posed a question, why 

the rush, particularly when this week it was announced that there 

be a case in the fall to determine whether there is a constitutional 

right to stop an execution based upon a claim of innocence. And 

also this week, the Supreme Court ruled the competency of legal 

counsel is perhaps the most significant unresolved death penalty 

issue. 

But I would hope, Mr. Chairman, that we could have a series of 

hearings on discrete issues surrounding the Streamlined Procedures Act, focusing in on the issues of harmless error, exhaustion 

issues, et cetera, because this is a dramatic departure from the current status of the law. 

I’m not going to belabor the point. I think one point that really 

has to be stressed, you know, people—there are a few people that 

are probably watching these proceedings, and the reality is—and it 

sounds simple, of course, to the panel—what we are talking about 

are people who are incarcerated. These people are not out on the 

street wreaking mayhem on the community at large. So I think to 

121

assuage any unfounded concerns that the American people might 

have in terms of when they listen to our Subcommittees and your 

answers, should be reassured about that. 

Mr. LUNGREN. Would the gentleman yield? 

Mr. DELAHUNT. Sure. 

Mr. LUNGREN. I can give examples of people who were the subject of habeas corpus cases with death penalties or life imprisonment in California who did commit murders while in prison. They 

might not have been on the street; we did see that. 

Mr. DELAHUNT. I happen to have—when I was a State prosecutor, I had the major penal institutions in my jurisdiction, and 

we obviously had a problem with homicides within our correctional 

facilities. But I think there’s another point, too, that we have to be 

cognizant of, is that there are maybe 12, 13 DNA exonerations in 

capital cases. 

But as Professor Harcourt—I mean, how many cases are there 

when DNA is unavailable, 80 percent, 85 percent? It’s in that 

neighborhood. You are all seasoned prosecutors. I think what we 

learned from the advent of DNA is it has given us a window into 

exactly what the Supreme Court is saying. The great unresolved 

issue is competency of counsel. And yes, the States have made 

progress. But I daresay anybody who has tried a lot of felony cases 

in a State court is aware of situations where it was clear during 

the course of the trial that counsel for the defendant just didn’t 

have it. Just didn’t have it. 

And I think we’ve all been—at least my experience has been, I 

indicted individuals and charged them with serious crimes, and 

subsequently found out that they, in fact, were innocent in very 

real terms. 

You know, what sets the United States apart from other democracies, even, is the fact that it is the main event—I think I heard 

that before, maybe it was from Mr. Lungren. It’s not the trial. The 

main event really is the search for the truth. The search for the 

truth. And if there is doubt and if there are grounds where a habeas petition will lie, it’s important for us to recognize that. That’s 

just some observations that I would make. 

And Mr. Marquis, I always found it interesting that in those jurisdictions, those States that did not have—noncapital States, their 

incidents of violence, often homicide rates were significantly lower. 

Mr. COBLE. The gentleman’s time has expired, but you may answer the question. 

Mr. MARQUIS. With all due respect, Mr. Delahunt, I don’t think 

that’s actually correct. The two jurisdictions that come to mind are 

Michigan and the District of Columbia, none of which have capital 

punishment and both of which, Detroit and the District, have a terrible murder rate. I don’t think there is a direct correlation. But 

this goes to the issue of deterrence. And there is a substantial body 

of study that shows differently. 

Mr. DELAHUNT. It is my understanding—and we can exchange 

correspondence on this—that of the 12 or 13 noncapital cases, their 

incidence of violence, their rate of violent crime is less than those 

States that impose the death penalty. But we can have that conversation via correspondence. But that has always been a problem 

122

that I have had. And in fact, I think I mentioned that once to my 

friend from Texas, Mr. Gohmert, who will have a reply. 

Mr. COBLE. Information for all of you. The record will remain 

open for seven days. 

The distinguished gentleman from Florida will be recognized for 

5 minutes, Mr. Feeney. 

Mr. FEENEY. Thank you, Mr. Chairman. And as the gentleman 

from Massachusetts indicated, the search for truth is something we 

are all interested in, but hopefully the search for truth eventually 

has some finality to it. 

One of the problems with the death penalty is the extremely 

lengthy and collateral processes that go on forever. Professor Harcourt testified that it’s his hunch that based on the last 10 years 

or so of jurisprudence, that the tremendous delays are going to be 

less and less. But as I look at Justice Department’s statistics going 

back to 1984, the average time between sentence and execution 

was about 73 months. As of 2003, that had almost doubled to 132 

months. 

And for Mr. Eisenberg and for Mr. Sabin, have you seen any dramatic change in the length of time between sentence and execution 

in the last several years? 

Mr. EISENBERG. I will begin, Congressman. 

Yes, it’s getting longer. And as far as I can tell, the largest limiting factor is the length of life of the defendant. In my State, for 

example, we have had three defendants who waived their appeals 

and were executed, but we have had 15 who died of natural causes 

on death row. Their cases came to an end. But that seems to be 

the only way that contested capital cases come to an end in some 

areas of the country is when the defendant on death row dies of 

natural causes. Otherwise, the delays are increasing, and certainly 

nothing about any resolution of any questions under the AEDPA is 

shortening the time. 

Mr. FEENEY. Mr. Sabin? 

Mr. SABIN. I can’t speak to specific numbers, Mr. Feeney. But as 

a general proposition, the point that Mr. Lungren made for closure 

for victims, that the process would extend on unnecessarily. And 

that if an injustice has occurred, I would think the offender would 

want that to be resolved sooner rather than later, so that the 

streamlining of the process, with appropriate review, would be in 

the interest of all. 

Mr. FEENEY. Mr. Eisenberg, very quickly, you indicate that of the 

20 cases in the last decade from Pennsylvania to go to a Federal 

court in habeas, 19 were tossed out and only 1 was upheld? 

Mr. EISENBERG. It is roughly along those lines, Congressman. 

And that’s not to say that no cases have been reversed by the State 

courts. On the contrary, many cases have been reversed by the 

State courts, perhaps more than the number that have finally 

reached ultimate decisions in the Federal courts. 

Our State courts are extremely vigilant in reviewing death penalty cases, and many of those cases have been reversed, not even 

having to go up to the State Supreme Court, but by lower level 

State judges. Even cases that clear that complete hurdle of 10 or 

20 years of litigation in State court and then get to Federal court 

123

are certainly going to be thrown out as well. We just don’t have a 

realistic process. 

Mr. FEENEY. Ninety-five percent of the time, the judge, the jury, 

and the entire State appellate process is simply tossed out on habeas by the Federal Court. 

Mr. Marquis, if you would summarize the econometric deterrence 

studies that you talked about. And by the way, maybe you ought 

to mention, theoretically deterrence may work; but if it’s going to 

take us 15 years before we have an execution of a sentence, there 

may be some diminishment of the potential deterrent effect of a 

death penalty; that this bill would bring back some real deterrence. 

And I would leave it with that. 

I would like to get into the constitutional issue that has not been 

addressed. There is nothing in the Constitution that guarantees a 

collateral Federal right of habeas, which nobody has mentioned. 

But Mr. Marquis, I would let you finish. 

Mr. MARQUIS. Yes, the studies. I think one of the other Congressmen mentioned—I’m sorry, Professor Harcourt—there is a whole 

cluster that have come up in the last 5 years; one from Emory University, another from the University of Houston, University of Colorado. They’re mostly by economists and academics. And mostly all 

of the people that do the studies are opposed to the death penalty, 

and they studied whether or not there was deterrent from actual 

executions. Whether moratoriums or pardons have an effect on 

murders. And all of the studies, literally all of them thus far, show 

a significant deterrence. 

And to put it in a very real sense, because I have been accused 

by defense experts of being too concrete a thinker, 17 murders are 

deterred, plus or minus 7, for every death penalty that is imposed 

in the United States. That’s very real to me. 

Mr. FEENEY. I still have a little bit of time. 

The constitutional issue, Mr. Eisenberg. Anything in our Constitution guarantee any collateral, additional right of habeas corpus 

in Federal court? 

Mr. EISENBERG. No, Congressman. The words appear—the words ‘‘habeas corpus’’ appear in the Constitution, but they never contemplated anything like the 10 and 20 years’ worth of appeals that 

we’re talking about. There weren’t even 2 years of appeals when 

those words were put into the Constitution, and in some cases no 

appeals, you had a trial. That was the main event because it was 

the only event. And I think that—it is inconceivable that any 

founder or any lawyer in the early days of this Republic would 

have imagined that appeals in criminal cases could go from court 

to court to court and take decades long. 

Mr. COBLE. The gentleman’s time has expired. 

The distinguished gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you very much. 

Mr. Marquis, you indicated that one death penalty saves 18 murders; is that from the Shepherd study? 

Mr. MARQUIS. Yes, it is. The main author of the study—sorry, I 

can’t pronounce the person’s name; but yes, it’s that study. 

Mr. SCOTT. Did Professor Shepherd review her conclusions and 

conclude after that, that in the 27 States in which one execution 

124

occurred during the sample period, capital punishment, in her 

judgment, deterred murder in six States and increased murder in 

13 States and had no effect in the others? Is that a subsequent 

finding of hers? 

Mr. MARQUIS. My understanding of what happened is that there 

was a blizzard of criticism of the study, and that—the argument 

was made that they were concentrating too much on States that 

had high execution rates, and if you took them out, that the rate 

would in fact decrease. So, I’m not sure if that answers your question. 

Mr. SCOTT. Okay. In twice as many States, the murder rate went 

up than went down because of the death penalty. 

Mr. Sabin, one of the—I’m going back and forth on these bills, 

and I didn’t separate these questions by bill, but one of the bills 

has a death penalty for cases in which death does not occur. 

Mr. SABIN. A grave risk of death, but not death under——

Mr. SCOTT. Has the constitutionality of the death penalty when 

a death does not occur—has the Supreme Court ruled on that? 

Mr. SABIN. I don’t believe the Supreme Court has ruled, but it’s 

equally applicable in treason and espionage cases under the statutory provisions presently in place. 

Mr. SCOTT. And death penalty, without a death occurring, is constitutional in those cases? 

Mr. SABIN. I don’t know if there has been a specific Supreme 

Court case that has addressed it in the treason or espionage case. 

But the theory behind the legislation, as I understand it in section 

104 of H.R. 3060, is that theory, sir. 

Mr. SCOTT. You have a retroactive application of the procedure. 

Are there cases pre-1994 for which this death penalty may apply? 

Mr. SABIN. If you’re referring to the quote-unquote ‘‘Safarini fix’’

under section 103, the answer is yes, sir. There are a number of 

terrorism cases that have been charged where there are defendants 

under indictment, that it would directly affect where United States 

citizens were killed. 

Mr. SCOTT. You have people under indictment today that are not 

subject to the death penalty, and if we pass this bill, on a pending 

case we will allow the death penalty. 

Mr. SABIN. No, sir. In 1974 the Antihijacking Act was passed; in 

1994 the Federal Death Penalty Act was passed. There were specific death penalty procedures during the time period of 1974 to 

1994, but in the passage of the Act in 1994, Congress did not articulate, as interpreted by the district court judge in the District of 

Columbia, that those provisions specifically apply and were not extinguished with the passage of the new legislation. 

Mr. SCOTT. I understand the procedural; the procedural, you can 

do it. But I just want to know the effect of the legislation. You have 

people under indictment today that you cannot impose the death 

penalty on. 

Mr. SABIN. As the district court decision was found, yes. 

Mr. SCOTT. Well, you have people under indictment today that 

are not subject to the death penalty. If we pass this bill, you will 

be able to subject them to the death penalty. 

Mr. SABIN. Correct. 

Mr. SCOTT. Pending cases. 

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Mr. SABIN. Yes. 

Mr. SCOTT. In the middle of the case. 

Mr. SABIN. No. They’re under indictment. They’re either in—fugitives from justice that are not in United States custody, or they 

have been apprehended and are serving a sentence in a foreign 

country, that the United States has sought to obtain the custody 

of them in order to process—— Mr. SCOTT. Now, I just want to make sure we know what we’ve 

got before us. We have defendants in pending cases that are not 

subject to the death penalty, and we will pass legislation that 

would subject them to the death penalty. That may not technically 

be a violation of ex post facto because it’s procedural, but procedural and substantive—I think it would be substantive to the ones 

it applied to. 

Mr. SABIN. I understand your point, sir. But the point was that 

I believe Congress had unequivocally, and the executive branch and 

congressional leaders had said that those individuals were subject 

to the death penalty during that period of 74 to 94, so they were 

clearly on notice. It’s not like we’re changing the rules after the offense has been committed. 

Mr. SCOTT. Well, if we don’t pass this bill, they won’t be subject 

to the death penalty; is that—— Mr. SABIN. District court in the District of Columbia has interpreted congressional inaction or silence in 1994 by not incorporating those provisions, such that we would not be able to seek 

the death penalty. 

Mr. SCOTT. Was that case appealed? Is that a final judgment? 

Mr. SABIN. He pled guilty to three life terms, plus 25 years, and 

is serving that now in a Federal penitentiary. 

Mr. SCOTT. And the decision of the district court was not appealed? 

Mr. SABIN. Correct. 

Mr. SCOTT. So that’s the only place that’s been ruled. 

Mr. SABIN. Correct. 

Mr. SCOTT. So in other cases, you could go try for the death penalty and see what happens. 

Mr. SABIN. We could. We’re seeking congressional explicit recognition of that fact—which we believe Congress had previously 

done—but just to make sure that it is done—— Mr. SCOTT. You’re seeking your own alternative court of appeals. 

Okay. 

Mr. COBLE. The gentleman’s time has expired. 

We have been joined by the gentlelady from Texas. Good to have 

you with us, Ms. Jackson Lee. In order of appearance, the distinguished gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. Thank you, witnesses——

Mr. COBLE. Would the gentleman suspend? Were you here earlier, Mr. Chabot? 

Mr. CHABOT. I was. But I will defer. 

Mr. COBLE. If you were here earlier, that’s my mistake; but I recognize the distinguished gentleman from Ohio, Mr. Chabot. 

Mr. GOHMERT. I appreciated being recognized. 

Mr. CHABOT. But he was a judge, I was just a lowly trial lawyer. 

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Mr. COBLE. And I will get to the Texan subsequently. 

Mr. CHABOT. Okay. I want to first thank the Chairman for his 

leadership in this area. I want to thank the witnesses. I think 

we’ve had really excellent witnesses here today. I also want to 

thank Congressman Lungren for introducing H.R. 3035, which attempts to streamline the procedures relative to death penalty 

cases. 

As a longtime advocate for victims rights, I’ve been very disturbed by the length of time that it takes for a lawfully convicted 

person to go from sentencing to execution in this country. The average length of time between sentencing and execution has risen 

from 74 months, or 6 years and 2 months in 1984, to a high of 143 

months, or just shy of 12 years in 1999. And as we know, 20 years 

is not that rare a case in this country nowadays. 

Why does it take so long for these murderers to meet their fate? 

All too often the delay is a result of lengthy and often meritless appeals by the convicted person. In some cases, the convicts have had 

the audacity to suggest that their extended incarceration on death 

row is, in and of itself, cruel and unusual punishment; and, as 

such, that their sentences should be commuted. Fortunately, this 

so called ‘‘lackey’’ defense has failed in most cases, but it shows 

how opponents of the death penalty, including those sentenced to 

death, have attempted to use and abuse the court system to 

achieve something that they cannot achieve in the legislature, and 

that is the abolition, essentially, of the death penalty. 

The reason for their failure to effect change through the normal 

legislative process is obviously they lack the public support. Public 

support for the death penalty has remained relatively constant, 

with approximately 69 percent of Americans in favor of the death 

penalty and only 24 percent opposed. 

My concern here, however, is not for abstract numbers representing the average number of months between sentencing and 

execution; my concern is for what those numbers mean for the families that have already endured the loss of a loved one and who are 

forced to endure years and years of prolonged agony as they wait 

for the justice that the jury has said that they are due. 

Three weeks ago, this Committee heard testimony from Mrs. 

Carol Fornoff, whose 13-year-old daughter Christy was murdered 

by the maintenance man at an apartment complex near their home 

in Arizona. The maintenance man was convicted in 1985 of the 

crime and was sentenced to death. That was 20 years ago. He is 

still on death row today, having used extensive appeals at both the 

State and Federal court level to prolong this ordeal for Mrs. Fornoff 

and her family. I mean, your heart just went out to these people. 

Or take the case of a constituent in my district in Cincinnati, 

Mrs. Sharon Tewskberry. Her husband Monte was stabbed in a 

convenience store robbery in 1983. Mr. Tewskberry, who was working at the store to make a little extra money to send their daughter 

to college, managed to crawl outside the store to call his wife from 

a pay phone after he had been stabbed. She arrived in time to hold 

him in her arms while he died. 

The following year John Byrd, Jr. was convicted of murdering 

Mr. Tewskberry and was sentenced to die. Nineteen years later, 

after Byrd had finally exhausted every appeal at both the State 

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and Federal level, including what amounted to a retrial in Federal 

court of the State law case, John Byrd was finally executed. Nineteen years. 

Mr. Chairman, these cases and so many others affirm that justice delayed is justice denied. And there are many, many other 

cases that I could cite, unfortunately I’m running out of time here. 

But this is one of the things, since I’ve been here in Congress, that 

has been so frustrating. And we passed the Antiterrorism and Effective Death Penalty Act back in 1996, which was supposed to 

make it a little easier to carry out these sentences, but in practice 

it’s just not worked. 

And I would strongly encourage this Committee and the Congress to be serious about this issue, because there are families 

whose lives have been ripped apart, and they wait and they wait 

and they wait, and oftentimes 20 years, for justice to be carried 

out. And we have to make sure that we have an effective enforcement of the death penalty in this country. 

And I yield back the balance of my time. 

Mr. COBLE. I thank the distinguished gentleman from Ohio. 

The Chair recognizes the distinguished gentlelady from Texas, 

Ms. Jackson Lee, for 5 minutes. 

Ms. JACKSON LEE. I thank the distinguished gentleman. To the 

witnesses, thank you for your presentation. And thank you for the 

indulgence of other meetings that I had, that I may have not heard 

the entirety of your testimony. But I do want to acknowledge that 

this is a very serious issue. And I know that victims are disproportionately sometimes impacted by the system that confuses them 

that we call justice. 

I would only say, without making any frivolous statement, that 

the alternative to this is to simply take them out and shoot them. 

We are not that kind of society—that would be expedited, whether 

we use a firing line, whether we hang them—but that is not the 

society in which we live. 

And so I would just simply say, with the understanding of how 

we abhor the violent acts that my colleagues have spoken about 

and the victims that have suffered the rash of sexual predators and 

killers of children over the last couple of years, however we abhor 

that, the alternative to a system that we have that allows those 

charged and convicted the opportunity to pursue their innocence or 

to pursue their rights in court is a system by which we call democracy and constitutional, I believe. 

So it is interesting that we have these discussions about justice 

being delayed by a period of time. I don’t know what the alternative would actually be. 

I do want to say to Mr. Marquis that you had in your testimony 

that you did not believe that one person—or no one could point to 

one person, single case of a demonstratively innocent person that 

has been executed in the modern era of American capital punishment. We know that a number of defendants over the years have 

been proven innocent by DNA. 

I would also say by the odds, that we might imagine that there 

are a number of those in the course of our history, which we would 

account for the 20th century, particularly knowing the number of 

African Americans that sit on death row that have gone to their 

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death that certainly have the possibility of being innocent with the 

proper defense and resources; are you trying to suggest that you 

can’t count one person that you believe was demonstrably innocent 

that had been executed in modern era? 

Mr. MARQUIS. Congresswoman Jackson Lee, if you’re talking 

about post-1976, that is exactly my statement. If you’re talking 

about the 20th century, there is no doubt that innocent people were 

executed in this country. But we’re talking about the post-Gregg 

era. And more in particularly the last 15 years, because the kinds 

of due process protections, the kind of counsel—even particularly in 

your State, as well as others, that have been accorded just in the 

last 10 or 12 years represent a major improvement. 

Ms. JACKSON LEE. Well, I would beg to differ with you. And I’m 

glad you cited my State. 

And Mr. Harcourt, I’m going to ask you a question before the 

light goes out, so you will be able to answer it before I respond to 

Mr. Marquis. 

In your remarks you said that you answer the proposed bill, the 

Streamlined Procedures Act of 2005, radical. If I turn the tables on 

you, they would—opponents of such would presume your statement 

to be radical. My question to you is, are you radical or are you 

right? And give us why you assess this bill to be radical, and why 

you would propose your view to be right. 

Let me just comment to him, and I would let you—yield to you 

to answer. 

I really disagree with you on that, because I do live in a State 

that is notorious for having the highest number of individuals on 

death row. I venture to say that they have the highest number of 

executions, and I would venture to say they are predominately minority members, since we happen to predominate on death row 

anyhow. And we’ve had a number of cases that have failed as it 

relates to appropriate counsel, the pardon process—or not the pardon process, but the process of review by our board of review for 

death penalty cases. 

So I would vigorously argue with you whether or not we have 

complied with due process procedures post-1976. And modern era, 

as far as I’m concerned, could be considered the 20th century, and 

certainly could be considered the last half of the 20th century, 1950 

and after; and I don’t think you can count your comments as accurate. 

Mr. Harcourt, could you answer my question about your assessment of the radicalness of this particular bill, and why you’re not 

being radical? 

Mr. HARCOURT. Yes——

Mr. COBLE. Professor, the gentlelady’s time has expired, but you 

may answer the question. 

Ms. JACKSON LEE. I thank the Chairman for his indulgence. 

Mr. HARCOURT. We have to understand that what this bill does 

is it eliminates Federal habeas corpus in State death penalty cases. 

That’s a—that wasn’t done in the AEDPA explicitly. And it eliminates it on one precondition: that the Attorney General of the 

United States has to certify a State as having competent defense 

in State post-conviction, and with one extremely narrow elimiVerDate 0ct 09 2002 14:22 Oct 03, 2005 Jkt 000000 PO 00000 Frm 00132 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\063005\22189.000 HJUD1 PsN: 22189
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nation, which is slam-dunk evidence of innocence. Basically only 

DNA would satisfy that. 

So what we’re talking about is in State death penalty cases, 

there will not be Federal habeas corpus, okay. I consider that 

somewhat extreme. It’s not what the Congress envisioned with the 

AEDPA, and I don’t think that—I think that it is what one could 

consider radical. 

In addition, eliminating procedural—eliminating cause and prejudice standard for procedural due process in Federal habeas corpus 

across the board, not just in death penalty cases, but across every 

single criminal case, you’re eliminating the cause and prejudice 

standard which was created by Chief Justice William Rehnquist in 

1977. It was a significant narrowing of the Faye v. Noya standard 

from 1963, which was deliberate bypass, okay, but it was a standard that has been in place, in fact, so much—in place based on federalism and comity concerns, so well engrained in our system of 

Federal habeas corpus jurisprudence that the AEDPA did not even 

address procedural due process. 

Mr. COBLE. Professor, if you can wrap up. We’re all going to have 

a second round, so you can move along. 

Mr. HARCOURT. Thank you, Chairman. 

Mr. COBLE. Prior to recognizing the gentleman from Texas, let 

me remind the Members again that after we adjourn this hearing 

we will mark up the Secure Access to Justice Bill. So if you all 

could remain, I would be appreciative. 

The Chair recognizes the distinguished gentleman from Texas, 

Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

With regard to the State of Texas, I do have some experience 

both as a prosecutor, as a district judge, our highest trial court, 

and then as an intermediate chief justice of the appellate court. 

I had a guy who was nominated for the Federal court by a Democratic President back in the seventies, was nominated for the Fifth 

Circuit of Appeals, and took that position—by President Clinton. I 

had him speak to a Rotary Club some years back and he said, on 

being asked during question and answer what do you think about 

the death penalty in Texas, and his words were—and he’s much 

more moderate than I am—but he said, you don’t have the death 

penalty in Texas. And people began to get all ruffled. And he said, 

if you’re waiting 10 to 20 years to put somebody to death, and do 

it in the middle of the night when nobody can see and nobody can 

be around, you don’t really have the death penalty. 

Interestingly enough, there’s something to his comments. We 

have put people to death. I do challenge anybody to show since 

1976—I don’t know about before then, I wasn’t licensed before 

then—but anyone who had been executed since that time who was 

innocent. 

I know there were a lot of people who have been guilty who have 

had cases reversed. I get sick and tired of hearing people say that, 

well, you know, we know in Texas they didn’t get proper representation because defense attorneys are not on the proper level with 

the seasoned prosecutors. 

I had never tried a murder, I had never tried a death penalty 

case, and yet in 1986 I was appointed to appeal a capital murder 

130

conviction, and I did one fantastic job because I worked my tail off. 

And there was not proper due process in the trial and it was reversed. 

So I get a little sick of saying that somebody like me was not 

competent in the appeal of a death penalty case. I have tried them 

as a trial judge. And for those who don’t know, it’s not enough to 

be convicted of capital murder, as Mr. Lungren pointed out, you 

have a bifurcated trial, and then go into—in Texas it’s basically 

three questions that in essence say, number one, did you commit 

the murder or know that the murder was going to be committed; 

number two, are you a future danger; and number three, is there 

anything whatsoever that mitigates against getting the death penalty? And man, that opens the door to all kinds of testimony. And 

only if you get a yes, yes, no is the judge in a position to pronounce 

a death penalty. 

Also in the issue of race, my anecdotal situation, I understand 

what the numbers are statewide. I had three people convicted of 

capital murder in my court in a decade, and two of them got the 

death penalty. They were both white, and the one that didn’t was 

an African American. 

With regard to this issue of studies, I’d like to ask, do any of the 

four of you know of any studies about recidivism or the deterrence 

effect of capital murder sentences that were done before the modern era of habeas corpus in cases taking 10 to 20 years? Do any 

of you know of any studies before we started dragging death penalty 10 to 20 years——

Mr. HARCOURT. Your Honor——

Mr. COBLE. The red light is about to illuminate, but you all may 

answer. 

Mr. HARCOURT. Thank you. 

The original studies about deterrence were done in the early 

1970’s, and that was the Erlich study, which had originally suggested that there was deterrence, but it was subjected to a lot of 

review; and ultimately an expert panel of the National Academy of 

Sciences issued a strong criticism of the early study. And I think 

that that would cover a period of where it was not prolonged death 

penalty appeals and processes. So the evidence there suggested no 

deterrence. 

Mr. GOHMERT. Okay. Let me just ask you—and I appreciate what 

I believe is your great candor, Mr. Harcourt. You mentioned 12 

death penalty cases in a discussion about proof beyond a reasonable doubt of innocence. In those 12 cases, was there proof beyond 

a reasonable doubt of innocence, or just some procedural flaw or 

reasonable doubt such that created no additional trial after reversal? 

Mr. HARCOURT. Those 12 cases were referring to 12 DNA exonerations in death penalty cases; exonerations, meaning wrong person. The blood—the blood or semen or whatever other human cells 

that were obtained and checked for DNA purposes were a different 

person. So those would be 12 DNA exonerations. 

Of course the other cases of approximately more than 100 exonerations or cases of actual innocence don’t involve DNA. And so as 

a result of that, what I’m suggesting is, of course, there is always 

131

lingering debate because you don’t have rock-solid proof, and 

it’s——

Mr. GOHMERT. And is it possible that the DNA, the so-called exoneration may just have raised such doubt that that person could 

have been there, knowing the crime was going to be committed, but 

it’s just that with the DNA evidence it created a reasonable doubt 

that wasn’t worth trying? 

Mr. HARCOURT. Well—— Mr. COBLE. The gentleman’s time has expired. You can respond 

tersely. 

Mr. HARCOURT. Right. Well, these are cases where Governors in 

most cases have exonerated individuals on the belief, firm belief, 

that they were not the individuals who committed the crime. 

Mr. GOHMERT. Thank you. Thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. Now we are coming up to another vote before too long, but I think a second vote is warranted, 

so we will move along. And I appreciate the panelists hanging 

tough as you have. 

I’ll start the second round. 

Mr. Sabin, since 9/11 the impact of terrorism has become a regular experience with most Americans now that was virtually unknown prior to 9/11. But in the death penalty framework, Mr. 

Sabin, why are terrorist offenses treated not unlike treason and espionage cases rather than traditional homicides? 

Mr. SABIN. The threat and harm to society that is prevalent in 

the present statutory framework for treason and espionage cases is 

in the same vein as would be in terrorism cases; the fact, as we 

have discussed earlier, that there is a grave risk to society based 

upon the threat that thousands, tens of thousands of people could 

be killed by that act of treason or by that act of espionage or by 

that act of terrorism, rather than a specific murder that occurs. So 

under section 101 of the proposed legislation, you would have terrorist offenses that result in death. 

And the other section of the proposed legislation, you would have 

terrorism put on that same playing field as treason or espionage 

cases because of the widespread impact upon society. 

Mr. COBLE. I thank you, Mr. Sabin. 

Mr. Marquis, with the passage—we may have gotten into this 

previously, but I want to extend it one more time. 

With the passage of the Justice for All Act and creation of postconviction DNA testing procedures, what impact will that have 

upon addressing concerns of innocent defendants on death row? 

Mr. MARQUIS. In response to, I think, one of the comments by—

I think it may have been the Congresswoman from Texas, the idea 

that we are conducting summary proceedings could not be farther 

from the truth. I have one person that I have put on death row. 

He committed his murders in 1987; we’re about to have the fourth 

trial for him. 

To be blunt, in the United States, defendants are—in death penalty cases, are drowned in due process. And that probably is the 

way it should be; if we’re seeking to take someone’s life, that’s very 

important. The reason that these cases go on at such length is because almost universally now, a very high level of lawyer is provided. 

132

In my State, which is not atypical, there have to be at least two; 

you have to be death qualified, you have to have previously tried 

a murder case. And I did death penalty defense, and I was able to 

do it because I had previously tried a murder case. 

In my State we spend more money on indigent defense all over, 

not just in capital cases, than we do on prosecution. That’s not the 

case everywhere in the United States. But I think it’s important to 

note that, particularly with the passage of Justice for All Act, one 

of the concerns was, well, what if somebody—if there is a new DNA 

case and it comes up later? 

As a prosecutor it is my worst nightmare that I would prosecute 

an innocent person. And I don’t believe there should be any block 

against bringing up evidence at any point in a proceeding, no matter where you are procedurally, if the person really didn’t do it. 

Mr. COBLE. And I concur with that. 

Mr. Eisenberg, this may be duplicating. I don’t think we’ve addressed this specifically. What is your view of a proposal to scale 

back Federal review at the district court and appellate levels? And 

how well situated are State judges in vindicating Federal constitutional rights? 

Mr. EISENBERG. Mr. Chairman, we are certainly facing delays at 

both of those levels of the Federal courts. The only level in which 

cases move at a reasonable predictable pace is if and when they 

ever get to the United States Supreme Court, which is extremely 

rare. 

In the district courts, I mentioned one case in my written testimony, hasn’t gotten an appeal yet, it’s still in the district court 

where it has been kicking around for I think 4 years now. And just 

a couple of weeks ago the judge issued an order in the case, but 

the order is not a decision on the case; that’s just an order setting 

oral argument about all the briefs that had been filed so far. 

So it has taken us 4 years to get to the point where the district 

judge ordered oral argument, which is supposed to take place next 

month—who knows how many years until he finally rules? And 

only then will we even start the appeals. 

In State court, of course, these cases are getting judicial attention much earlier. And as I mentioned previously, there are many 

State courts that have reversed many death penalty cases. Now, 

that’s been argued by some as proving that there are all these errors in these cases. But if that’s true, if we can rely on those State 

court judgments, we can certainly rely on the State court judgments that affirm death penalty cases as well. 

Mr. COBLE. Well, when you said district court, you meant Federal district court? 

Mr. EISENBERG. Yes. I meant the lower level of the Federal 

courts, which happens after all the State court appeals; the first 

thing that happens in Federal court. 

Mr. COBLE. I thank you, sir. 

The distinguished gentleman from Virginia is recognized for 5 

minutes. 

Mr. SCOTT. Thank you. 

Mr. Marquis, you indicated if someone has evidence that they’re 

innocent, they ought to be heard and have that opportunity. If 

133

it’s—if you have evidence that’s not DNA evidence, what kind of 

chance would you have if you were factually innocent? 

Mr. MARQUIS. Well, there are—in addition to the various direct 

appeals, Federal appeals, habeas appeals, if there is evidence of innocence. This is where there is something, some amount of the 

human factor. Evidence is brought to prosecutors and to Governors, 

and it is not uncommon in this country for prosecutors——

Mr. SCOTT. If you can convince the prosecutor. But if the prosecutor doesn’t want to go along, what can you present to a judge 

under these bills that will allow you to be heard? 

Mr. MARQUIS. I can’t speak to what can be provided under these 

bills——

Mr. SCOTT. Well, under present law you don’t have much because 

you’ve got to have evidence of—clear and convincing evidence to get 

past a motion, frivolous charge. I mean, you’ve got to show clear 

and convincing evidence. If all you’ve got is evidence that you’re 

probably innocent, do you get a hearing? 

Mr. MARQUIS. I think it requires more than that. 

Mr. SCOTT. Right, okay. 

If under H.R. 3035, Professor Harcourt, if a State court has ruled 

that the evidence—that the error was harmless, can the Federal 

court review that finding? 

Mr. HARCOURT. Not on a sentencing issue, Congressman Scott. 

One of the provisions of H.R. 3035—I think it’s specifically provision 6, section 6—suggests that if a State court, in post-conviction 

or on direct appeal, finds that a claim regarding a sentence or a 

sentencing process—this applies whether it’s a death penalty case 

or an ordinary criminal case—if the sentencing claim is harmless 

or that they found out it was not prejudicial in some way, then the 

claim cannot be reviewed in Federal habeas corpus. 

Mr. SCOTT. Is that the same for ineffective counsel? 

Mr. HARCOURT. Well, that’s precisely the point. Ineffective assistance of counsel is a two-prong standard that requires inadequate—

or performance that’s not up to par. And then prejudice. It’s a twoprong standard which has a prejudice prong in it. So effectively, 

any kinds of claims of ineffective assistance of counsel regarding 

sentencing—which, of course, some of the most significant kind of 

cases that we see—in fact, the United States Supreme Court has 

just reversed a few cases because of inadequate counsel at the sentencing phase—would be barred by this legislation. 

Mr. SCOTT. Now, if you haven’t exhausted State remedies and 

you file your petition in Federal court, do I understand this bill to 

say it is dismissed with prejudice? 

Mr. HARCOURT. Correct. 

Mr. SCOTT. That means when you go back to State court, you 

can’t come back. 

Mr. HARCOURT. That’s correct. Under present AEDPA law—actually in a ruling just issued this year by the United States Supreme 

Court in Ryans v. Webber, and under the AEDPA, there is essentially some discretion provided to Federal judges in cases of 

unexhausted claims. It’s a very limited discretion. 

Mr. SCOTT. They can dismiss it without prejudice, or they can 

hold it until you’ve been there. 

134

Mr. HARCOURT. Correct. Although it’s very limited. I mean, you 

have to show that you’re likely to prevail, et cetera. It’s not as if 

it would apply to all unexhausted—— Mr. SCOTT. But if they dismiss it, it wouldn’t be with prejudice, 

so you could never bring it back. 

Mr. HARCOURT. Correct, yes. 

Mr. SCOTT. My time is almost over. I had a couple of quick questions. 

Under H.R. 3060, when a jury has found someone guilty but 

can’t decide on the—or is hung on the question of guilt, the bill provides for a new jury to come in on the question of death—a new 

jury to come in. 

Has a court ever reviewed what happens if a jury cannot unanimously decide death? I thought the rule was that you have to impose life, is it—— Mr. EISENBERG. May I address that, Congressman? We did have 

a case from my State that I believe touched on this issue and went 

up to the United States Supreme Court. And the United States Supreme Court held that, in fact, if the sentencing jury can’t decide 

on death, that’s not a double jeopardy bar to retrying the issue. 

There are some States which by statute don’t allow another sentencing hearing, which automatically impose a life sentence in the 

event of a hung jury. 

Mr. SCOTT. Do you have a case on that specific point? Could we 

get the name of that? 

Mr. SABIN. I believe it’s the Jones case. 

Mr. SCOTT. Which said if the jury is hung on that question, it 

is not double jeopardy to come back. So if we change the statute, 

then that case would answer the question on constitutionality of 

that provision. 

Mr. SABIN. I don’t think it quite held that that was the holding. 

I believe there was not unanimity. There were questions about the 

jury instructions and whether you had to impose death, life sentence, or another sentence that would be less than death. And the 

confusion that was suggested created in the jury by those instructions impacted upon the court’s decision. 

Mr. SCOTT. Okay. And the other question is, there is a provision 

to proceed with less than 12 jurors in H.R. 3060. Does anybody 

want to comment on that, and whether courts have reviewed going 

forward on a death penalty case with less than 12 jurors over the 

objection of the defense? 

Mr. COBLE. The gentleman’s time has expired, but you may answer. 

Mr. SABIN. I don’t believe a court has held in that regard; that 

is correct. If good cause is found, a judge under this proposed bill 

can proceed with a jury of less than 12 without the defendant’s 

stipulation. 

Mr. SCOTT. And has any court—and no court has ruled on that 

as a denial of due process; is that right? 

Mr. SABIN. I am not aware of court proceedings. We can get back 

to you on that of any specific court, if the Supreme Court or lower 

level has reviewed that. 

Mr. COBLE. The gentleman’s time has expired. The distinguished 

gentleman from California is recognized for 5 minutes. 

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Mr. LUNGREN. Thank you, Mr. Chairman. 

Mr. Harcourt, you correctly noted in your testimony that the current law allows a State to trigger a special set of more advantageous, as you say, to the State procedural rules for Federal habeas corpus proceedings if the State establishes an effective system 

providing competent counsel to indigents in State post-conviction 

proceedings. You also note that Federal courts determine whether 

a State scheme for supplying counsel meets the statutory criteria, 

and this is the so-called opt-in feature of AEDPA. But then you 

then criticized the bill I have introduced for placing the decision of 

whether the State qualifies for chapter 154 treatment in the hands 

of the U.S. Attorney General. You contend this: A State that gets 

something, advantageous procedural rules in Federal court in exchange for doing something, providing good lawyers to indigents in 

State proceedings, this section would change both ends of that quid 

pro quo equation. 

Look, I know that many States, including my own, have devoted 

great effort and expense toward providing the type of counsel that 

chapter 154 requires. As a matter of fact, when we drafted the law 

California was used as the model. But it has now been 9 years 

since the passage of the law, can you name me one State that has 

been permitted by the Federal Courts of Appeals to qualify for 

chapter 154? And hasn’t the quid pro quo equation under current 

law that you celebrate effectively always meant a zero for the State 

side of the equation? 

Mr. HARCOURT. If I’m not mistaken, I believe that Arizona qualified for the opt-in provisions under the Ninth Circuit review. And 

I believe that’s the—I believe that is the only State that has qualified for the opt-in procedures. 

Mr. LUNGREN. Does it sound like it’s working? 

Mr. HARCOURT. Well, the question is whether adequate counsel 

is being provided in State post-conviction proceedings. 

Mr. LUNGREN. That’s true. And it’s interesting that we modeled 

that section after the California experience, and yet the courts have 

not found that to be appropriate; thereby, it looks like, ignoring 

what we tried to suggest was appropriate. 

I have so many questions here. Let me ask you this. You criticize 

section 14 of the bill, which you say would overrule the U.S. Supreme Court’s interpretation of the 1996 act as not applying to 

pending claims. And today, 9 years after the law was enacted, a 

small but significant number of habeas corpus petitions still remain that were not governed by it and are still subject to the pre1996 standards. You state in your testimony that legislatively overruling the Supreme Court’s interpretation and applying it to all 

current cases would trigger massive litigation over whether the 

U.S. Constitution allows Congress to do this. 

Now, the Lynn case, 1997, the Supreme Court that held that the 

1996 law did not apply to pending cases, was a 5–4 decision. Are 

you aware of any passage in either the majority decision or the dissent in that case, that suggests that Congress could not have applied AEDPA to pending claims? And if applying them to pending 

petitions would have raised such constitutional concerns, don’t you 

think that at least one justice would have mentioned this? 

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Mr. HARCOURT. Congressman, I don’t have the Lynn decision 

right in front of me, so I can’t quote any language from it, but I 

believe there was a claim raised as to the retroactive application 

of new procedures in that case, which would be precisely the kind 

of constitutional claim that would be raised as a result of this H.R. 

3035, if the—part of the bill provides that it applies to cases that 

are pending right now. 

Mr. LUNGREN. You also suggest that many sections of the legislation would raise significant constitutional questions about the prior 

Congress to restrict Federal court review of habeas claims, including whether or not the bill violates the suspension clause of the 

United States Constitution. You later assert that the bill would arguably suspend the writ of habeas corpus. 

In the Lynn case, the court of appeals described the constitutionally guaranteed writ of habeas corpus this way: The writ 

known in 1789 was the pretrial contest of the Executive’s power to 

hold a person captive, the device that prevents arbitrary detention 

without trial. The power thus enshrined did not include the ability 

to reexamine judgments rendered by courts possessing jurisdiction. 

Under the original practice, the judgment of conviction rendered by 

the court of general criminal jurisdiction was the conclusive proof 

that confinement was legal and prevented issuance of a writ. The 

founding area of historical evidence suggests a prevailing view that 

State courts were adequate fora for protecting Federal rights. 

Based on this assumption, there was, and is, no constitutionally enshrined right to mount a collateral attack on a State court’s judgment in the inferior article 3 courts, and, a fortiori, no mandate 

that State court judgments embracing questionable or even erroneous interpretations of the Federal Constitution be reviewed by 

the interior article 3 courts. 

The Seventh Circuit then concluded: Any suggestion that the 

Constitution forbids every contraction of the habeas power bestowed by the Congress in 1885 and expanded by the 1948 and 

1996 amendments is untenable. 

My question is, do you think that the Ninth Circuit got it wrong? 

Mr. COBLE. The gentleman’s time has expired. 

Mr. LUNGREN. I talked as fast as I could. 

Mr. COBLE. I’m not admonishing you, but you may respond to 

that, Professor. 

Mr. HARCOURT. Thank you, Chairman. 

The question of constitutionality here has to do with whether or 

not you can grant Federal jurisdiction to a Federal court up to a 

certain point where a violation of Federal law would be discovered, 

okay, but at which point the jurisdiction would be stripped, and so 

the court couldn’t do anything. So that’s probably the most complicated constitutional issue that this statute presents. In other 

words, it would be a situation where a Federal district court would 

be able to—would see a violation of Federal law, but would not be 

able to—but then jurisdiction would be stripped right at that point 

because the lower court found it harmless or because there is no 

procedural default rules in place anymore, et cetera. 

What really becomes questionable with H.R. 3035 is that point 

where jurisdiction is stripped after a Federal court would have 

found a substantive violation of a Federal constitutional right. 

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Mr. LUNGREN. So you think the Seventh Circuit got it wrong. 

Mr. HARCOURT. You were talking about the Ninth Circuit. 

Mr. LUNGREN. Seventh Circuit. I agree with you, the Ninth Circuit gets it wrong often, but I’m talking about the Seventh Circuit 

in this case. 

Mr. HARCOURT. Right. I don’t think that in that particular case, 

the Seventh Circuit was addressing the constitutional issue that 

H.R. 3035 raises. 

Mr. COBLE. The gentleman’s time is expired. And I say to my 

friend from California, I was not admonishing you because you 

were speaking at an accelerated rate, you were trying to beat that 

red light. 

Mr. LUNGREN. It may be difficult for you to understand from 

North Carolina, but we do talk a little faster out where I come 

from. Thank you. 

Mr. COBLE. We have been joined by the distinguished gentleman 

from Florida, Mr. Keller. 

Now I ask my friends on the majority side, does anyone have any 

question on the second round? 

Mr. Keller, the gentleman from Florida. 

Mr. KELLER. Thank you, Mr. Chairman. And I apologize for not 

being here on the first round. 

Having read the powerful testimony, I just wonder if our Ranking Member, Mr. Scott, is now persuaded to be in support of the 

death penalty. And I will yield. 

Mr. SCOTT. Nice try, Mr.——

Mr. KELLER. I will yield back the balance of my time then. 

Mr. COBLE. The gentleman yields back the balance of his time. 

And I want to thank the Members who have stayed with us 

throughout the entire hearing. And I want to express my thanks 

to the very distinguished panelists and those in the audience who 

have attended very dutifully. The Subcommittee appreciates your 

contribution. 

In order to ensure a full record and adequate consideration of 

this important issue, the record will be left open for additional submissions for seven days. Also, any written questions that a Member 

wants to submit should be submitted within the same seven-day 

period. 

This concludes the legislative hearing on, ‘‘Does an Accurate and 

Swift Death Penalty Deter Crime And Save Lives: H.R. 3060, the 

‘‘Terrorist Death Penalty Enhancement Act of 2005;’’ and H.R. 

3035, the ‘‘Streamlined Procedures Act of 2005.’’

We will now proceed with the markup—without objection, the 

hearing is adjourned and we will proceed with the markup of H.R. 

1751, the ‘‘Secure Access to Justice and Court Protection Act of 

2005.’’

Again, I say to the panelists, thank you so much, gentlemen, for 

being with us. 

[Whereupon, at 4:20 p.m., the Subcommittee proceeded to other 

business.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

140

LETTER FROM MICHAEL ISRAEL, EDITOR, CRIMINAL JUSTICE WASHINGTON LETTER, TO

THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF NORTH CAROLINA, AND CHAIRMAN, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY, AND THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY


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