Topic: Death Penalty
Senator: Feingold
Date: SEPTEMBER 15, 2005
Contents
FEINGOLD: Turning again to the death penalty, when you worked in the Reagan administration, you expressed strong opposition to federal courts reviewing criminal convictions and state courts via writs of habeas corpus.
As you know, prisoners who believe they were wrongly or unfairly convicted in state courts may seek to have the federal courts hear their claims via a writ of habeas corpus. Habeas corpus is a fundamental part of our legal system that has long protected individual freedom.
In a 1981 memo, you argued that the availability of federal habeas relief to state prisoners, quote, "goes far to making a mockery of the entire criminal justice system."
In that same memo, you said, quote, "The question would seem to be not what tinkering is necessary in the system, but rather, why have federal habeas corpus at all," unquote.
Then, in 1983, as Senator Leahy brought up yesterday, you suggested that if the Supreme Court wanted to reduce its case load, it should quote, "advocate the role of fourth or fifth guesser in death penalty cases," unquote.
FEINGOLD: Not on First Amendment cases or antitrust cases but death penalty cases.
I know that you've said that your memos in the Reagan administration reflected the views of the administration and not your own, but in this area, at least, your memos clearly indicate, I think, that these were your views.
With the 1981 memo, for example, there's a cover note in your handwriting directing that the memo be sent to John Rose (ph), an assistant attorney general at the time, with a cover note that reads, quote, "The attached memorandum contains some thoughts on habeas corpus reform, for whatever you think they're worth. Judge Friendly and Justice Rehnquist would never have forgiven me if I'd remained mute," unquote.
That sounds a lot like a memo advocating your views not those of the department.
With regard to the memo from 1983 that I mentioned, you were analyzing the chief justice's proposal to create another intermediate appellate court to take the pressure off the Supreme Court's docket. And you said, and I quote, "My own view is that it is a terrible idea." And you went on to say that the fault lies with the justices themselves who take too many cases, including death penalty cases.
And you sent a personal letter to Judge Friendly in 1981 that said, quote, "This is an exciting time to be at the Justice Department, when so much that has been taken for granted for so long is being seriously reconsidered. To cite just one example, serious thought is being given to reform of habeas corpus. I do not know what will eventuate, as you noted. What has come to pass as the great writ is regarded by many lawmakers with no idea of the problems as unalterable perfection," unquote.
Now, that discussion in a personal letter sounds like your own opinion as well.
A decade later, when you were at the solicitor general's office during the first Bush administration, you signed several briefs that sought to strictly limit federal habeas review. And in 1992, while in private practice, you testified before the House Republican Task Force on Crime in favor of further habeas restrictions.
The comments in your memos from the 1980s, I'm sorry to say, don't even show the slightest concern about innocent lives possibly being lost if federal habeas were eliminated.
Does the possible hostility toward the habeas process that was expressed in those memos, particularly in death penalty cases, reflect your current view on federal habeas or have your views changed or evolved?
ROBERTS: Well, as you know, the law has changed and evolved dramatically since the early '80s. And, at least with respect to my personal letter to Judge Friendly -- I guess I thought it was a personal letter...
(LAUGHTER)
... the situation has changed dramatically, as you know.
What I was referring to in the early '80s was a situation where there were no limits on repetitive habeas corpus petitions; four, five, six, dozens of different petitions could be filed repetitively.
Congress saw that as a problem. Congress acted to address the very concerns that I was raising there and passed legislation.
The Supreme Court saw it as a problem. The Supreme Court acted in a number of cases, the Keeg case and others, in limiting the availability of successive and repetitive habeas petitions.
Actually, what happened is the Supreme Court, I think, started down that path and Congress made the decision that this is something they should look at in a more comprehensive way. So Congress passed laws that restrict when people can file repetitive and successive petitions.
Those are the very concerns that I was talking about. They were concerns that had motivated the first person I worked for as a lawyer, Judge Henry Friendly, to write on the subject.
ROBERTS: He wrote a famous article on habeas reform entitled "Is Innocence Irrelevant?," because he thought these successive petitions had made sort of a game out of the whole process in which the question of innocence was totally lost in these successive petitions.
And the references to the great writ -- yes, of course the writ of habeas corpus has an established heritage as a basis for complaining about illegal confinement, but all the stuff we're talking about there, the fourth and fifth successive petitions, raising new issues that should have been raised in the first petition -- and as you know, that's what Congress' legislation focused on.
FEINGOLD: But, Judge, did you not at the time, as I read in your statement, advocate the abolition of federal habeas review?
ROBERTS: No. The purpose of what I was saying was to certainly reform and abolish the system as it existed then, where people could file repetitive and successive petitions. And I'll tell you why.
The main problem, and I think it's a particular concern in death cases, is that nobody along the way feels that they're making a responsible decision. If people get in a situation where they know, "OK, if you're on a jury and you sentence someone to death, if you, think, 'Well, he's going to file habeas petitions in state court and they're going to look at it then'; and the person who considers the state habeas petition says, 'I know there are going to be successive federal habeas petitions, they look at the issue then'; everybody is pointing fingers in opposite directions."
When Congress reformed this system, I think it helped to make clear that the decisions that are going to be made on the first habeas petition is going to be critical, and so, hopefully, it's looked at a lot more carefully than in the prior system when you knew that wasn't the end of the process, it wasn't even the beginning of the end; the conviction was just the end of the beginning.
FEINGOLD: Would you agree that had the view that you advocate in your memos prevailed in the early 1980s, the abolition of the writ, and federal habeas review of state court convictions was removed entirely, had that happened, innocent people would have been executed and serious constitutional errors would have gone unaddressed?
ROBERTS: Well, that wasn't my position.
FEINGOLD: But I'm asking...
ROBERTS: No, my...
FEINGOLD: ... had that view prevailed, not necessarily your personal view, but the abolition of the writ, isn't it the case that innocent people would have been...
ROBERTS: I'm not in favor now and was not in favor then of not allowing any federal habeas review.
FEINGOLD: I'm asking you whether you wouldn't agree that, as a matter of fact, had the writ been eliminated, that some innocent people would have been executed.
ROBERTS: Well, they certainly wouldn't have been able to assert their claim of innocence in federal habeas. And people do succeed at that stage. I certainly think it serves a valuable purpose.
But that, again was not -- you know the situation with respect to habeas 23 years ago was quite different than it is today. And the reason it's changed, I think, is because Congress responded to those sorts of concerns.
FEINGOLD: I take those comments as very important. And I know you can't comment on this, but there are further efforts now to further limit this right that could come before you.
And I know you can't comment on it. But I think it's of great significance that you have acknowledged that some of those changes that were made in the '90s have significantly affected your view about the propriety of the habeas process.
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