Statement of U.S. Senator Russ Feingold On Habeas Corpus At the Senate Judiciary Committee Markup July 28, 2005 Mr. Chairman, I want to start by thanking you for holding the hearing on this bill earlier this month. I was disappointed that I was not able to attend, but as I believe Senator Leahy was kind enough to explain on my behalf at the hearing, I was attending the memorial service in Wisconsin for our former colleague Senator Gaylord Nelson, who was quite simply one of my heroes and who occupied the seat in the Senate that I now hold. Mr. Chairman, I was one of the people who asked you to hold that hearing, and I very much appreciate that you did. I understand that it was quite productive, and I do wish that I could have been there, but unforeseen events like this sometimes come up. At the very least, from what I have been told, the hearing proved that a hearing was necessary. Some on this Committee wanted to mark up this bill without a hearing. The amount of detailed information that came out at the hearing surely demonstrated that that would have been a grave mistake. I remain concerned that we are continuing this markup while a number of questions remain unanswered. The bill itself is extremely complex, and it fundamentally alters an extremely complex area of law. All of us need more time to digest what was revealed at the hearing. I know we have had a couple of weeks since the hearing, but this Committee has been incredibly busy with Patriot Act reauthorization and with a variety of hearings, all of which have been very valuable. But they have left little time to focus on this bill. We need to slow this process down. Mr. Chairman, we all know that the Committee is going to be very busy this fall. I appreciate that you are trying to get a lot of work done before the August recess because hearings on the Supreme Court nomination and floor consideration of the nominee will probably occupy us during September. But these dramatic changes to federal habeas corpus are far too weighty and will have much too great an effect on real people's lives -- people who may very well be innocent of a capital crime for which they have been convicted -- for us to rush them through. The Senate Judiciary Committee is where the hard work, the very detail-oriented work, of considering the habeas issue should take place. We must not abdicate our responsibility by waving through a bill with serious flaws and hope that they will somehow get fixed before the bill is considered on the floor. I am told that the witnesses at the hearing testified at length, and quite convincingly, about the serious flaws in this bill. We need much more time to evaluate that testimony and to work together to determine the right outcome here. In fact, during the week of the hearing and our initial consideration of this bill we received a letter from the Federal Judges Association asking for more time so that the Judicial Conference would have sufficient opportunity to review and comment on the bill. We then received a letter from the Judicial Conference expressing grave concerns about a few provisions of the bill and, again, asking for more time to consider the other aspects of the bill. I do not think we should mark up this bill without hearing from the judges -- they are the people in the system who are best able to comment on the impact that this bill will have. Since when does the Senate Judiciary Committee not honor a request from the Judicial Conference for a delay and instead rush to report out a bill? That would be an extraordinary thing to do. I'm also told there were real disagreements among the witnesses about how this bill would have affected some specific cases in which the Supreme Court ultimately upheld a prisoner's habeas petition. Witnesses were asked to provide more information in writing to respond to the claims that the other witnesses made. The sponsor of the bill had disagreements with some of the arguments made by some of the witnesses about how certain provisions of the bill would have affected particular cases. These are not problems that can just be brushed aside. We need to have time to evaluate these competing claims and see if we can resolve them. At the very least Mr. Chairman, we ought to be certain what the real world effect of the bill we are being asked to vote on will be. We still don't know that, so I don't know how in good conscience we can proceed with a markup on this bill. But here we are, so I want to explain my objections to this bill. The Streamlined Procedures Act could have very serious implications for our criminal justice system, and in particular for the ability of death row inmates to have their constitutional claims heard in federal court. I cannot overstate the significance of this bill or the gravity of my concerns about it. It would not only rework federal habeas law, it would dramatically cut back on the jurisdiction of our federal courts. As a result, the outpouring of opposition that has arrived in the past few weeks has been astounding. From an array of former judges to major law firms, we are hearing not just that this bill has a few problems that need to be corrected, but that this bill is a bad idea and should not become law. Now, I understand the concern about lengthy appeals in cases where prisoners bring federal habeas claims. I don't dismiss in the least the pain that families of victims feel and the closure that some of them seek from the death penalty. But victims' families do not get closure when they find out years after the crime that the government prosecuted and convicted the wrong person. More than 115 people sentenced to die have been exonerated and released from death row, sometimes years after their convictions. And I have no doubt there are others we do not yet know about. Often, evidence of innocence does not come out until years after a conviction, and habeas is the only legal avenue that inmates have left to them. Let me just talk through a couple of examples, because I think it is important to hear about these real people. Last year, a man in Texas, Ernest Ray Willis, was exonerated 17 years after he was convicted of an arson murder -- and only after a federal court considering his case on a habeas appeal threw out the conviction. The federal court found that the state suppressed evidence favorable to Willis, and that Willis received ineffective representation at both the guilt and sentencing phases of his trial. The local prosecutor looked again at the case to decide whether to re-prosecute, and had a specialist examine the forensic evidence. The specialist found there had not been any evidence of arson to begin with -- that the original analysis had simply been wrong. Yet a man had spent 17 years in prison facing execution. The prosecutor who could have retried him instead apologized, saying "I'm sorry this man was on death row for so long and that there were so many lost years." Let me also mention Ronald Williamson, who I understand was also discussed at the hearing. I think his case bears repeating. After twelve years on death row and coming within five days of execution, DNA tests identified someone else as the murderer in the crime that Williamson was convicted of. It was only after a federal court reviewing his habeas corpus petition found that Williamson's attorney had been constitutionally ineffective that DNA tests were done, proving his innocence. But Williamson's claims had previously been rejected by state courts. Had this bill been law at the time, he very well may not have been able to bring his claims to federal court, and he may not have been able to prove his innocence. Mr. Chairman, earlier this month, a local prosecutor in St. Louis reopened the case of a 1980 murder because the evidence against the man convicted of the crime had fallen apart. That man was sentenced to death, and he was executed by the state of Missouri 10 years ago. Yet now, 25 years after the crime and 10 years after his execution, very serious questions about his guilt are being raised. Samuel Gross, the University of Michigan law professor who supervised the new investigation of the case that led to the St. Louis Circuit Attorney's decision was quoted saying with regard to this man's innocence -- quote -- "There's no case that I know of where the evidence that's been produced in public is as strong as what we see here." I hope that the thought of executing an innocent person sends chills down the spine of everyone in this room. I have no doubt that innocent people have been executed in this country. It is only a matter of time until that is proven. Here we may have the first unassailable evidence of that horrible fact. But if this bill passes, effectively denying habeas review to scores of potentially innocent people, these kinds of cases could become commonplace. Even if we believe, as I do, that the vast majority of state law enforcement officials, prosecutors, judges, and juries carry out their duties with the utmost professionalism and good faith, mistakes do happen. Unless we on this Committee are prepared to say, against all the evidence, that our system of justice is perfect, or unless we are prepared to accept the execution of innocent people, we cannot endorse this bill that will make it so much more difficult for people to get access to the federal courts when they are facing execution. As this discussion makes clear, I am very seriously concerned about the effect this bill would have on inmates who argue they did not commit the crime for which they were convicted. Senator Kyl argues that he has an exception for claims of innocence. But as I understand the witnesses at the hearing explained convincingly, that exception is so narrow that it would not have applied to many of the claims of people who, today, we know did not commit the crime for which they were convicted. I also want to make clear this is not just about claims of innocence. This bill also would prevent federal courts from evaluating serious constitutional flaws in cases where the ultimate punishment of death is at issue. Mr. Chairman, in cases where people's lives are stake, I do not think we should be further limiting the ability of inmates to raise claims of serious constitutional violations. And we know that, unfortunately, such errors are more common than any of us in this room would like. We also know that such errors, such as ineffective assistance of counsel or prosecutorial misconduct, can make it impossible for claims of innocence to be adequately investigated and pursued. So it is simply not fair to separate out claims of innocence from other types of errors in analyzing the effects of this bill. A study by Professor James Liebman of Columbia Law School found that in 68 percent of death penalty cases from 1973 to 1995 the verdict or sentence was overturned due to serious constitutional errors. In addition, a number of recent U.S. Supreme Court cases have found the proceedings by which an individual was convicted of a capital crime or sentenced to death to have violated the Constitution -- and they have done so in the review of federal habeas proceedings. Under the law as this bill would revise it, the federal courts would not even have had the power to adjudicate the claims in these cases, and the errors would have gone unaddressed. That is not acceptable. I also am extremely concerned about the practical impact of the procedural barriers that would be constructed under this bill. Habeas corpus is already one of the most procedurally complex areas of law there is. Navigating the procedural requirements of federal habeas corpus law is difficult even for an experienced attorney with all the time and resources in the world. But there is no right to counsel in post-conviction proceedings in either state or federal court. The reality is that many death row inmates pursue these proceedings without lawyers. Even in their direct appeals, where they have the right to counsel, lawyers for indigent defendants are often underpaid and overworked, and they do not have the resources to retain the experts and investigators they need to do their job right. This bill does nothing to fix that problem. It only exacerbates the unfortunate results of that problem by making it even more likely that inmates without lawyers will unintentionally forfeit solid legal or factual claims by filing the wrong document, in the wrong court, or at the wrong time. If these inmates do finally get the assistance of an attorney, it will be too late. This bill would also fundamentally realign the role of federal courts in criminal cases, as we heard from former Solicitor General Waxman in his written testimony. Our legal system has long recognized the importance of reducing constitutional error when an individual's liberty or life is at stake, by allowing even state inmates to challenge the constitutionality of their imprisonment in federal court through habeas corpus. This bill would undo that fundamental premise, stripping federal courts of the ability to hear many federal claims. It is one thing to establish time limits or even more difficult standards for petitioners to meet. It is quite another to literally prohibit federal courts from acting in circumstances that would otherwise warrant the granting of habeas relief. This bill will not make the habeas process more efficient, as its proponents claim. It will throw the state of the law into complete turmoil, resulting, for many years, in more delay, not less. Mr. Chairman, this bill would prevent federal courts from hearing a great number of potentially meritorious claims in cases where our justice system must be most careful. It could not be further from the truth to say that this bill merely contains some moderate tweaks to the law. It is an extreme measure, and it is unjustified. I strongly oppose this bill and I will fight against it every step of the way. I am very concerned about proceeding with this markup, Mr. Chairman. There are far too many unanswered questions about this bill, far too many disputes and uncertainties about how it will work and what effect it will have. And there is far too much danger that this bill will result in the deaths of innocent people. That is a result that the Senate Judiciary Committee cannot countenance. If this matter is brought to a vote, Mr. Chairman, I hope my colleagues will reject it. Thank you Mr. Chairman.

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