The Honorable Patrick Leahy

United States Senator
Vermont
November 16, 2005

Statement of Senator Patrick Leahy,
Ranking Member, Committee on the Judiciary
Hearing on Habeas Legislation (S.1088)
November 16, 2005

I thank the Chairman for agreeing to hold this hearing on S.1088, the so-called "Streamlined Procedures Act," or SPA. This is our second hearing on the bill. Since our first hearing, back on July 13, the bill has been strongly opposed by a wide range of experts and practitioners, and it has twice been rewritten.

I am thankful that we are at least holding hearings on this bill. Yesterday the Senate voted to strip federal courts of the authority to consider habeas petitions from detainees being held in U.S. custody as enemy combatants. At no time before in our Nation's history have habeas rights been permanently cut off from a group of prisoners, yet we did it without even holding a committee hearing on an issue so fundamental to the basic precepts and basic rights under our system of government that it predates our Constitution.

We have a distinguished panel of witnesses today, and I welcome them all and thank them for coming. I am especially pleased that we are joined once again by former Solicitor General Seth Waxman. When the Committee adopted the current version of the bill in October, it was claimed that this version addressed, or at least substantially addressed, all the concerns that Mr. Waxman and others had raised about earlier versions. In fact, it does not come close to doing so. I am glad he could be here to set the record straight.

The current version of the bill suffers from nearly all of the same infirmities as its predecessors. Like its predecessors, this bill seeks to impose radical and unprecedented restrictions on the Great Writ of habeas corpus. It would inject confusion into settled law, which can only increase litigation time, not decrease it. And it would eliminate essential protections against wrongful convictions without making adequate provision for claims of innocence.

One thing is clear about this bill: If it passed, it would preclude federal courts from enforcing federal constitutional rights.

The legal community recognizes this. The American Bar Association calls the bill before us "a significant setback for justice." Both the U.S. Judicial Conference and the Conference of Chief Justices have expressed grave concerns with the bill and urged further study and analysis before we start tearing apart the complex edifice that is federal habeas law. The state chief justices cautioned us against passing a bill with "unknown consequences for the state courts and for the administration of justice." The Judicial Conference reported that the vast majority of habeas cases are already moving expeditiously through the system. We will hear more from the Judicial Conference this morning.

I know the bill has its defenders. But not one defender of the bill has offered systemic evidence of a real national problem with federal habeas corpus under the current, post-AEDPA regime. This bill remains a solution to an unproven and largely non-existent problem, and no amount of tinkering will solve that.

If we are serious about reforming the system to improve the quality, efficiency and finality of criminal justice, there is a different solution we should focus on. Unlike the SPA, it is a solution that would solve problems in the criminal justice system before they arise, rather than complicating the process of responding to problems via habeas. Unlike the SPA, it is a solution supported by the legal community and the public at large. And unlike the SPA, it is a solution to which the President and both House of Congress have previously committed on a bipartisan basis. It is a promise we made to the American people, and we have a duty not to renege on it.

I speak, of course, of the Innocence Protection Act. We passed that Act one year ago, in response to the shameful, widespread evidence of hopelessly underfunded, too often incompetent, and even drunk and sleeping defense counsel in state capital trials. We did so because we saw only too well the costs of that systemic failure: Innocent men on death row, and repeated, fundamental violations of constitutional rights.

The Innocence Protection Act established a new grant program to improve the quality of legal representation provided to indigent defendants in state capital cases. This program would greatly reduce the risk of error in these cases. It would also reduce the frequency of the most expensive and drawn-out post-conviction proceedings - the potentially meritorious ones. It would, that is, if we funded this program at or near the modest levels we authorized. If we are truly committed to improving the criminal justice system, we should not let Congress's check bounce.

We all agree that the trial should be the main event and abuses of habeas corpus should not be tolerated. But let us remember that the trial process itself is flawed and that it will remain flawed if we continue to skimp on essential funding. Let us remember that wrongful convictions do occur, and many innocent people have been sentenced to death. Let us remember what Justice O'Connor has told us: The death penalty system is so flawed in America today that we have probably already executed an innocent person. And let us not pass ill-conceived, unnecessary legislation that would only make an unacceptable situation far worse.

# # # # #