The Honorable Russ Feingold

United States Senator
Wisconsin
November 16, 2005

Statement of U.S. Senator Russ Feingold
At the Senate Judiciary Committee Hearing
"Habeas Reform: The Streamlined Procedures Act"
November 16, 2005

Mr. Chairman, I want to thank you for holding this hearing today on the Streamlined Procedures Act. You and others on the Committee have been working over the past few months to make changes to this extremely complex bill, and I am gratified that we have witnesses here today who can help us better understand the bill in its current form, as well as the very serious implications this bill could have for our criminal justice system. I also thank you for agreeing to hold another hearing on this bill before we proceed to a markup. Mr. Chairman, I think this is how the Senate is supposed to work: Before we proceed to report out complex legislation like this bill, we must be fully armed with the facts needed to evaluate it and allow us to make an informed recommendation to the rest of the Senate. Today's hearing is an important step in that process, and I thank you again for holding it.

I cannot overstate the significance of this bill. It would entirely rework federal habeas law. Even in its modified form, I have grave concerns about the havoc it would wreak.

I understand the concern about lengthy appeals in cases where prisoners bring federal habeas claims. But more than 120 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.

Last year, a man in Texas was exonerated 17 years after he was convicted - and only after a federal court considering his case on a habeas appeal threw out the conviction. 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." And just this summer, the St. Louis Post-Dispatch reported that a local prosecutor has reopened an investigation into a 1980 murder because the evidence against the man convicted of the crime had fallen apart. That man had been 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. I find this extremely troubling.

I am very seriously concerned about the effect this bill would have on inmates who argue they did not commit the crime of which they were convicted. But this is not just about claims of innocence. This bill also would put up virtually insurmountable procedural bars preventing federal courts from evaluating serious constitutional flaws in criminal cases, including those where the ultimate punishment of death is at issue. 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 errors would have gone unaddressed.

Finally, I am concerned about this bill because it would fundamentally realign the role of federal courts in criminal cases. 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. This bill would not make the habeas process more efficient, as its proponents claim. It would prevent federal courts from hearing a great number of potentially meritorious claims in cases where our justice system must be most careful.

I sincerely hope, Mr. Chairman, that this Committee will listen closely to these witnesses and consider this bill carefully and thoroughly. There is no reason to rush to judgment on these very significant changes to our criminal justice system.