The Honorable Howard Coble
Chair, Judiciary Committee
Crime, Terrorism, and Homeland Security Subcommittee
House of Representatives
Washington, DC 20515

The Honorable Robert C. Scott
Ranking Member, Judiciary Committee
Crime, Terrorism, and Homeland Security Subcommittee
House of Representatives
Washington, DC 20515

Re: House Judiciary, Crime, Terrorism and Homeland Security Subcommittee Mark up on H.R. 1751, Secure Access to Justice and Court Protection Act of 2005.

Dear Representatives Coble and Scott: Representative Louie Gohmert (R-TX) has introduced H.R.1751, the ""Secure Access to Justice and Court Protection Act of 2005,"" which creates numerous discriminatory mandatory minimum sentences, and effectively denies large numbers of people the ability to appeal their cases in federal court. H.R.1751 is scheduled for a mark up on Thursday June 30, 2005, we strongly urge you to oppose this legislation.

S. 1751 Would Make it Nearly Impossible for Many People to Access Federal Courts if They Have Been Wrongly Convicted

Section 10 of this legislation would severely limit the ability of people incarcerated for some offenses under this bill to appeal their case in federal court based on a writ of habeas corpus. The legislation would only allow people incarcerated for ""killing"" a public safety officer to file a writ of habeas corpus under extraordinary circumstances such as if a new constitutional rule is adopted and made retroactive or if new facts are revealed about the case that could not have been previously discovered.[1] These rules will apply not only to a person incarcerated for first degree murder of a public safety officer, but those who are convicted of second degree murder as well. For example, if a woman is driving home from a nightclub while illegally drunk and she accidentally runs over a state trooper who is directing traffic and kills him, she could be convicted in state court of second-degree murder. Under the bill, this woman who never intended to kill the police officer will effectively be denied access to federal court except in rare circumstances.

In addition, determining whether a case qualifies for consideration under 28 U.S.C §2254(e)(2) is difficult. Establishing the facts necessary for a court to grant a writ of habeas corpus application under this section requires a petitioner to have access to counsel, discovery, subpoena power, independent investigative assistance, expert assistance, and availability of an evidentiary hearing. Federal courts determine in a §2254(e)(2) case whether the petitioner has "diligently" attempted to discover unknown facts in each of the above-mentioned relevant areas during the state court proceedings.[2] In order to decide these issues a judge will be required to undertake a highly fact-intensive review of a range of complicated legal and factual questions about the state court case and the underlying state law and rules that were applied during the state court proceedings.

Answering these questions and others like them would ordinarily take a great deal of time for a federal court under existing rules. Thus, the manner in which this legislation would put these decisions on expedited timelines would not allow for the parties in the case or a judge to conduct a thorough investigation or evaluation of the facts. The legislation would require a judge to convene an evidentiary hearing 60 days after ordering the hearing and the hearing must be completed 150 days after hearing is ordered. The parties and judges in these cases would be on a very short timeline to rule on complex legal and factual issues regarding whether the petitioner exercised due diligence during the state court proceedings to uncover relevant facts.

Even more important are cases that fall under 28 U.S.C. Sec. 2254 (d)(2), in which fact-finding is no longer necessary. However, there are cases in which the state court after being provided with all relevant evidence, nevertheless reaches a factual conclusion, that is not only wrong, but so wrong as to be objectively unreasonable.[3] Under the proposed legislation, these cases that involve genuine, non-harmless constitutional error affecting the conviction or sentence of a person could not be reviewed by a federal courts, even when a state court failed to remedy the incorrect ruling.

Finally, provisions similar to Section 10 in S. 1751 have been available in Chapter 154 (the "opt-in" section)[4] for states to take advantage of since the enactment of the 1996 Antiterrorism and Effective Death Penalty Act over nine years ago. Yet no state has found them sufficiently desirable to take the modest steps necessary to opt in to these requirements. Given the states' unwillingness or inability to take advantage of the Chapter 154 provision, it is unclear whether states see a need for the changes proposed in this legislation, particularly in light of the already complex law of habeas.

S. 1751 Further Erodes Federal Judges' Sentencing Discretion By Proposing More Harsh Mandatory Minimums Sentences

This legislation further erodes the sentencing discretion of judges by imposing mandatory minimum sentences that would result in unfair and discriminatory prison terms. Many of the criminal penalties in this bill are increased to mandatory minimum sentences,[5] including the sentence for second-degree murder that would be a mandatory sentence of 30 years. Mandatory minimum sentences deprive judges of the ability to impose sentences that fit the particular offense and offender. Although mandatory minimums were designed to reduce the racial inequalities, too often resulting from judicial sentencing discretion, in practice they shift discretion from the judge to the prosecutor. Prosecutors retain the power to plea bargain and choose which defendants they will offer plea agreements to in order for those defendants to avoid the mandatory penalty. It is not clear what standards (if any) prosecutors use to offer plea bargains, therefore only a few defendants get the benefit of avoiding the mandatory sentence. This creates unfair and inequitable sentences for people who commit similar crimes, thus contributing to the very problem mandatory minimums were created to address.

While we recognize the need to protect law enforcement officers who put their lives on the line every day for the public, we also understand that these efforts should not be done in a way that undermines the basic constitutional principle of habeas corpus and having access to federal court. Therefore, we urge members to oppose H.R. 1751 when the House Judiciary, Crime, Homeland Security and Terrorism Subcommittee considers this bill on June 30, 2005.

Sincerely,

Greg Nojeim
Acting Director

Jesselyn McCurdy
Legislative Counsel

cc: House Judiciary Committee

Footnotes

[1] 28 U.S.C. Sec. 2254(e)(2).
[2] See Williams v. Taylor, 529 U.S. 420 (2000)
[3] See, e.g., Wiggins v. Smith, 539 U.S. 510, 528 (2003); Guidry v. Dretke, 397 F.3d 306, 328 (5th Cir. 2005).
[4] 28 U.S.C Sec. 2261 et. al.
[5] 18 U.S.C. Sec. 115 Influencing, Impeding, or Retaliating Against Judges and other Officials by Threatening or Injuring a Family Member; 18 U.S.C. 1111; 18 U.S.C. Sec. 1503 Influencing or Injuring Officer or Juror Generally; 18 U.S.C. 1512 Tampering with a Witness, Victim, or an Informant; and 18 U.S.C. Sec. 1513 Retaliating against a Witness, Victim, or an Informant.