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Mr. COATS. Mr. President, I am pleased to be a cosponsor of S. 1971, the Violent Crime Control and Criminal Procedures Reform Act, introduced by Senator Thurmond. This omnibus package of legislative initiatives takes seriously both the prevalence of violent crime in America and the necessity for punishment. It incorporates criminal law and procedural reform measures called for by President Bush and contained in his national drug control strategy and crime control package.

Enactment of this legislation is strongly supported by the Department of Justice. In the words of Attorney General Thornburgh:

Its adoption would be a fundamental contribution both toward enhancing the public's security against crime and improving the effectiveness of the Federal criminal justice system.

Let me mention the key provisions of S. 1971. Title I establishes constitutional procedures for implementation of the Federal death penalty for certain capital crimes and authorizes the death penalty for additional aggravated crimes, such as attempts to assassinate the President, hostage taking where death results, and genocide. It embodies most of the provisions of S. 32, which was recently reported by the Senate Judiciary Committee, but does not include the language of the socalled Racial Justice Act, and it is almost identical to legislation passed by the Senate in 1984 by a vote of 63 to 32. I shall discuss the death penalty provision at greater length later.

Title II reforms current habeas corpus procedures to promote finality of litigation and speedier criminal convictions in State courts. This provision incorporates the recommendations of the Powell commiteee which was formed in June 1988 by Chief Justice Rehnquist to look into the problems of delay and the lack of finality in capital cases. This provision was contained in similar legislation which passed the Senate in 1983 by a vote of 67 to 9. I shall return to this reform shortly.

Title III codifies the good faith exception to the exclusionary rule which has been sanctioned by the Supreme Court of the United States. Unfortunately evidence has been excluded at trial in many cases involving violent crime and drugs because a law enforcement officer mistakenly and innocently violated search and seizure rules, preventing conviction of known criminals. The Supreme Court has recognized that the exclusionary rule should not be used when the officer has acted in good faith. S. 1971 will close this legal loophole which has allowed violent criminals and drug offenders to go free on a technicality, so that henceforth evidence of guilt will be admissible whenever the

state shows that the arresting officer acted in good faith compliance with the fourth amendment.

Title IV strengthens the penalties for drug-related crimes and other violent crimes involving the use of firearms. This provision permits consideration of pretrial detenition for certain offenses involving firearms and explosives, provides mandatory revocation of supervised release for possession of a firearm, and increases the penalties for giving false information in connection with the acquistion of a firearm.

Title V provides for mandatory drug testing of Federal defendants on postconviction release.

Title VI, which incorporates the provisions of S. 326 which earlier passed the Senate as an amendment to antidrug legislation, will enable the prosecution and imprisonment of persons who corrupt the administration of government at the Federal, State, and local levels.

Finally, section VII would facilitate the use of officially sanctioned undercover investigations, including sting operations, to combat crimes of trafficking in, or receiving stolen or counterfeited property.

Mr. President, I wish to comment briefly on two very important sections of S. 1971 which I believe are critical to the success of our wars on drugs and crime in America.

The Thurmond bill provides an enforceable Federal death penalty for a number of aggravated crimes, most of which result in the taking of innocent life. Specifically it would establish the necessary constitutional procedures for implementation of the death penalty for those Federal crimes which curently authorize a death sentence, namely, treason, espionage, murder, certain crimes involving explosives where death results, wrecking trains where death results, and air hijacking where death results. In addition, the legislation authorizes the death penalty for several additional serious crimes--murder by a Federal prisoner serving a life sentence, the taking of hostages where death results, murder for hire, murder in aid of racketeering, genocide and certain Presidential assassination attempts.

Let me add personally I do not believe that capital punishment should ever be imposed simply out of utility or vengeance. It must be imposed only when an innocent life is deliberately taken. Thus, it may be an appropriate penalty for certain violent crimes resulting in the murder of innocent victims. That is why I have voted in the past for the death penalty for drug-related murder, but not for peacetime espionage where no death results. Accordingly I am troubled by imposition of death for attempts to kill when no murder occurs. In S. 1971, however, the death

penalty would be provided only if the defendant is found guilty beyond a reasonable doubt of an attempt to assassinate the President which results in bodily injury to the President or comes dangerously close to causing his death.

I am convinced that this crime control bill provides the necessary safeguards and complies with the constitutional procedures approved by the Supreme Court to ensure that capital punishment will be imposed only under very limited circumstances involving the most violent and heinous of crimes. For instance, the death penalty may be imposed for specific Federal aggravated offenses pursuant to a sentencing hearing only if it is determined that the death penalty is justified. In homicide cases the jury must find at least one threshold requirement regarding the defendant's state of mind at the time of the offense; if not, the death penalty cannot be imposed. The bill prohibits execution of a person under 18 years of age at the time of the crime--versus 16 years under current law. It also bars imposition of a death sentence on a pregnant woman and on mentally retarded persons, regardless of the nature of the crime. And a State employee will be excused from participating in an execution if such participation is contrary to his or her religious or moral beliefs.

The bill also sets forth the statutory mitigating and aggravating factors to be considered by the jury or judge in determining whether a sentence of death is justified. For instance, the Government has the burden of proving beyond a reasonable doubt the aggravating factors, while the defendant must show any mitigating factor by a preponderance of the evidence, and if the jury is not unanimous in finding a particular aggravating factor, the death penalty cannot be imposed. The jury must then decide whether aggravating factors outweigh mitigating factors to justify a death sentence, but regardless of such a finding, the jury still has the discretion to refrain from imposing the death penalty and must be so instructed. If the defendant appeals his death sentence, the appellate court must consider the entire record including trial evidence, information submitted, and the procedures employed during the sentencing hearing, and special findings returned at sentencing as to aggravating factors.

Thus, S. 1971 clearly provides strong protections and guarantees for the Federal criminal defendant convicted of an offense for which the death penalty is available. I am persuaded that this legislation contains sufficient procedural safeguards which will prevent arbitrary and capricious imposition of the death penalty for capital crimes.

Clearly, the death penalty provisions of S. 1971 are far superior to those contained in S. 1970, the Biden bill. Title I of that bill incorporates the language of the so-called Racial Justice Act, based on the unsubstantiated claim that the death penalty has been administered in a way that shows a significant risk of racial discrimination to both defendants and victims of crime in

violation of the Constitution for which current legal safeguards are inadequate.

The Racial Justice Act in the Biden bill stipulates that capital punishment cannot be used whenever a death sentence `furthers a racially discriminatory pattern,' and provides that, to establish a prima facie case of such a pattern, a petitioner must merely offer evidence that there is a disproportion between the number of persons in a racial group who are sentenced to death or executed and the number of persons from that racial group in the aggregate of persons who are arrested for, charged with or convicted of crimes that are punishable by death under any circumstances. Similarly, the petitioner need only show that there is a disproportion between the number of persons in a racial group who constitute the victims of crime for which the death penalty is actually imposed and the number of persons in that racial group who make up the class of persons against whom crimes are committed that may be punished by death under any circumstances. To rebut such a prima facie case, the Government would have to establish by clear and convincing evidence that `identifiable and pertinent nonracial factors persuasively explain the observable racial disparities comprising the pattern.'

The Racial Justice Act would also require every jurisdiction that authorizes capital punishment to set up an elaborate central data bank on racial factors and other information related to all persons charged with or victims of crimes in death penalty cases. The act's provisions would apply retroactively to all defendants subject to the death penalty, whether or not they raised any claim of racial discrimination or that claim was raised and rejected by the court. Finally, the act mandates the appointment of counsel and provision of other services to any indigent person raising such a claim in a death penalty case.

Aside from the unjustifiable claim that the death penalty has been applied in a manner that unconstitutionally discriminates against certain racial groups--a claim rebuttable by the Bureau of Justice's 1988 statistics showing that 66.2 percent of those sentenced to death were white while whites constituted only 50 percent of those who commit murder--the Racial Justice Act is fundamentally flawed and wrong-headed in that it would require imposition of the death penalty purely on the basis of race and statistics.

The Supreme Court has already rejected this aproach to racial justice in the courtroom in the case of McCleskey v. Kemp, 481 U.S. 279 (1987). Justice Powell, writing for the majority, held that the question of whether a death sentence was unconstitutionally affected by racial discrimination must be determined by evaluating the fairness of the procedures applied in the particular case in question. The Court specifically rejected the argument that deviations from statistical racial proportionality in the imposition of past death sentences could

provide a basis for invalidating the death penalty in cases which otherwise complied with the requirements constitutionally imposed by the Court's earlier decisions. The Constitution requires highly individualized determinations based on the moral culpability of individual defendants, not on a comparison of racial proportionality. In the words of Justice Powell:

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Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual and the facts of the particular capital case. Id. at 294.

The only effective way to achieve the goal of a nondiscriminatory system of sentencing in capital cases is to adhere to the strict requirements for fairness and due process that have been articulated by the Supreme Court in a series of capital punishment decisions.

I agree with Senators Thurmond, Hatch, and other members of the Judiciary Committee who stated that the Racial Justice Act `imposes an unworkable and unconstitutional system of statistical sentencing.' As Attorney General Thornburgh observed, the Racial Justice Act:

relies on dramatically incorrect factual assumptions, employs constitutionally impermissible mechanisms, and would inject race into the prosecution of death penalty cases to an extent unprecedented in the United States.

By mandating that a criminal justice system not susceptible to mathematical predictability produce, nonetheless, mathematically predictable results, this act would effectively abolish capital punishment.

Under the Thurmond and administration proposals, the death penalty will be administered in a way that strengthens racial neutrality and prevents discrimination. The jury must focus on the existence and weight of specific aggravating and mitigating factors which do not allow race or other such factors to be considered. S. 1971 specifically requires an instruction to the jury that the race, religion, national original, and sex of the defendant or victim must not be considered. Moreover, each juror must certify that these factors did not enter his or her decision regarding the death sentence.

By contrast, the death penalty provisions of the Biden bill would make any death penalty unworkable--not just at the Federal level but in State courts as well. That is not just my view; it is also the opinion of the Attorney General. Senator Grassley of Iowa, a member of the Senate Judiciary Committee which reported out that act on a close vote--himself a strong supporter of the death penalty--voted against the death penalty bill for that reason alone.

Indiana is one of 37 States which impose the death penalty for certain crimes. The Biden bill would effectively nullify the death penalty in my State. My fellow Hoosiers and the Indiana d

legislature have spoken on this issue, and I do not believe that their collective judgment should be nullified by the Congress.

The other issue remedied in S. 1971 which I wish to address is habeas corpus reform. I am not referring to the writ of habeas corpus referred to in the Constitution which guarantees to persons detained prior to conviction the right to know the charges on which they are held. I am speaking of the statutory remedy afforded to State prisoners to challenge their convictions or sentences by petition filed in Federal district court. Under section 2254, of title 28 United States Code State prisoners have a virtually unlimited right to challenge their convictions, using habeas corpus petitions to relitigate their cases over and over again, throughout their prison terms. Because the prisoner has nothing to lose and everything to gain from prolonging this litigation, it has become evident that the habeas corpus remedy has been abused.

Let me cite examples of the kind of abuses common to habeas corpus petitions by Federal prisoners. One death row inmate, sentenced over 10 years ago for murdering four innocent persons, for which he does not deny guilt, recently received a stay of execution by the Supreme Court of the United States. This marked the fourth time his case had been before the Supreme Court. You may recall the horrible case in Illinois of John Wayne Gacy who was convicted of murdering 33 young men, including several Indiana youths. Although it has been 13 years since he was sentenced to death, his appeals go on and on. It is conceivable that he will be able to delay the carrying out of his sentence for at least 20 years.

These are by no means isolated instances of using habeas corpus to prevent the speedy execution of justice. Unless Congress acts soon to remedy this abuse, some of the most notorious criminals who have been convicted of most heinous crimes in our history could die of natural causes before their adjudicated penalties are executed.

Title II proposes amendments to various sections of chapter 153 of title 28 of the United States Code and a related Federal rule of appellate procedure in order to eliminate habeas abuses which have had the effect of overturning State death penalty convictions and nullifying State capital punishment laws. These amendments contain the legislative recommendations of the Ad Hoc Committee on Federal habeas corpus in capital cases chaired by former Associate Supreme Court Justice Lewis Powell which thoroughly addressed the problem of habeas corpus review of capital cases in which the prisoner had or had not been offered counsel.

The Powell committee recommendations were aimed at achieving one goal. In the words of its chairman:

Capital cases should be subject to one complete and fair course of collateral review in the State and Federal system, free from the time pressure of
impending execution, and with the assistance of competent counsel for the defendant. When this review has concluded, litigation should end.

I agree with this goal. We need to reform habeas corpus procedures so as to minimize Federal judicial interference with State capital convictions and at the same time ensure finality of litigation.

This proposal would allow a State to bring capital litigation by its prisoners by providing competent counsel for inmates on State collateral review. Participation in these new procedures would be optional with the States. Because it is optional, the changes would cause minimal intrusion on State prerogatives. But for those States concerned with delay in capital litigation, the Powell committee believed that the procedural mechanisms would furnish an incentive to provide the counsel that are needed for fairness.

This proposal also provides for a 6-month period within which a Federal habeas petition must be filed. This 6-month period begins to run only upon the appointment of counsel for the prisoner--or the prisoner's refusal of the offer of counsel--and is tolled during the pendency of all State court proceedings. In light of the provision for counsel and the exhaustion requirement that the prisoner's Federal petition contain the same claims made in the State petition, 6 months is clearly adequate time for the development and presentation of claims by the prisoner. Moreover, a further extension of time is available for cases where good cause is shown. This change would prevent petitions in cases in which the passage of time has made a reliable adjudication of the petitioner's claim or retrial of the petitioner difficult or impossible.

The proposal also provides for an automatic stay of execution which is to remain in place until Federal habeas proceedings are completed or until the prisoner has failed to file a petition within the allotted time. This automatic stay would ensure that habeas claims not be considered by a court under the time pressure of an impending execution. It should eliminate the rush litigation over stay motions that is troubling for both litigants and the courts.

Federal habeas proceedings under these amendments would encompass only claims that have been exhausted in State court. With the provision for counsel, there should be no reason for the defendant's failure to raise claims in State court. The change in current practice under this bill is the provision for immediate presentation of new claims in Federal court in extraordinary circumstances. Moreover, subsequent and successive Federal habeas petitions can no longer be the basis of a stay of execution or grant of relief absent extraordinary circumstances and a colorable showing of factual innocence.

I believe that the amendments provided in the Thurmond bill will ensure fairness and promote finality in habeas corpus

proceedings. In the words of Associate Justice Powell:

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The fundamental requirement of a criminal justice system is fairness. In habeas corpus proceedings fairness requires that a defendant be provided a searching and impartial examination of his claims. Fairness also requires that if a defendant's claims are found to be devoid of merit after such examination, society is rightfully entitled to have the penalty prescribed by law carried out without unreasonable delay.

This proposal fills a gap that now exists by encouraging the appointment of competent counsel in State habeas corpus or collateral proceedings--the same right that is now available to every capital defendant at State trial and appeal and in Federal habeas corpus proceedings. Moreover, this proposal assures that upon completion of State proceedings a defendant will have one opportunity to have his claims reviewed carefully by the Federal courts. Thereafter, assuming no infirmity is found in the conviction and absent exceptional new developments, judicial proceedings will be at an end.

In summary, this legislation balances the need for finality in death penalty cases with the requirement that a defendant have a fair examination of his claims. Therefore, if the conviction and sentence are found to be appropriate, judicial proceedings will be at an end, absent any exceptional developments in the defendant's case.

The effect of the Thurmond amendments will be to preclude granting relief with respect to matters that have been fully and fairly adjudicated in State proceedings. These changes would enhance the finality of State criminal adjudications and avoid duplicative litigation of claims that have already been adequately considered and decided.

These amendments also make clear that a Federal court can deny a habeas petition on the merits without requiring prior exhaustion of State remedies. This change would avoid a waste of judicial resources when a prisoner presenting a frivolous petition is sent back to the State system to exhaust State remedies.

By contrast, the habeas corpus provisions contained in title II of the Biden bill would not remedy the abuses that have led to the endless litigation and relitigation resulting from the present system of repetitive habeas corpus review that has undermined the cpaital punishment laws of Indiana and other States. In fact, I beleive that S. 1970 would increase the number of habeas cases. Under section 2257(c)(3) a State prisoner on death row can receive a stay of execution and obtain another review of his conviction and sentence in Federal courts if he alleges that such relief is `necessary to prevent a miscarriage of justice.' No wonder retired Associate Justice of the Supreme Court Lewis Powell and the chief judges of both the Fifth and Eleventh Circuit Courts of Appeal have testified that

the enactment of title II of S. 1970 will result in more, not fewer habeas corpus cases.

Justice Powell also testified concerning the deleterious effect that would result should the procedural default rule in S. 1970 be enacted. The Biden bill would overrule the leading precedent in Wainwright v. Sykes, 433 U.S. 72 (1977), which held that a State prisoner could not raise in Federal court a claim which he is legitimately barred from raising in State court unless he can show good cause for the default which resulted in prejudice to his case. This is a reasonable rule, which would allow every genuine case of constitutional error to be heard, while reducing the number of unnecessary habeas corpus cases.

The Ad Hoc Committee of the Judicial Conference on Federal Habeas Corpus in Capital Cases--the Powell committee--in its report of August 23, 1989, specifically recommended restricting successive habeas corpus petitions to those involving questions of guilt or innocence. This recommendation corresponded to the opinion in Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). However, S. 1970 would overrule the Supreme Court and expand current law by permitting any petition alleging a `miscarriage of justice' to be reviewed.

Moreover, title II has no effective time limitation. Although the Biden bill, in section 2258(1), proposes to limit the availability of Federal habeas corpus relief to the first 365 days after the prisoner has exhausted all his available State court remedies, there is a significant exception which destroys the effectiveness of such a rule. Whenever the State prisoner seeking review of a capital sentence files a petition for certiorari in the Supreme Court--and he can file as many of these petitions as he needs--the statute of limitations is tolled.

Finally, S. 1970, in section 2260, would create an absolute right of appeal from adverse rulings on habeas petitions. Under current law, most unsuccessful petitioners may appeal the dismissal of their habeas petitions only when the district judge issues a certificate of probable cause, asserting that the legal issues raised are not entirely frivolous. This change would further aggravate the current case overload being experienced by the Federal courts of appeals.

The point is: Regardless of one's personal views concerning the effectiveness or justice of the death penalty, so long as a State and its citizens believe that capital punishment is appropriate and it is that State's law, it should be imposed in a timely way according to constitutional procedures. Permitting the appeals process to be dragged out for years and years, as too frequently happens under current habeas corpus procedures, is bad public policy for it makes a mockery of the criminal justice system. Justice delayed is justice denied. The Thurmond bill remedies this situations; the Biden bill cannot.

For the reasons I have discussed, I consider the Thurmond crime control package of reforms in S. 1971 to be far better than the Biden proposals in S. 1970. Whatever reservations I may have concerning the dealth penalty, I regard the urgency of crime control legislation to be of primary importance if we are to address seriously the crime and drug problems in our Nation.

We have read the awful statistics and seen the death and terrible damage that crime, violence and drugs have done to our social fabric. We all realize that action is long overdue. We must act now to provide a comprehensive death penalty with constitutional procedures and protections, increase the penalties for those who use firearms in the commission of crime, and reform those criminal procedures which result in delay and injustice within our criminal justice system. I call on my Senate colleagues to join me in swiftly passing effective, tough, and fair crime control legislation. The law-abiding citizens of our Nation deserve and demand it.

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