[Pages S4673-S4684]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

By Mr. LEAHY (for himself, Mr. Smith of Oregon, Ms. Collins, Mr.
Levin, Mr. Jeffords, Mr. Feingold, Mr. Moynihan, Mr. Akaka, Mr.
Kerrey, and Mr. Wellstone):
S. 2690. A bill to reduce the risk that innocent persons may be
executed, and for other purposes; to the Committee on the Judiciary.

THE INNOCENCE PROTECTION ACT OF 2000

<bullet> Mr. LEAHY. Mr. President, a few months ago, I came to this
floor to draw attention to a growing national crisis in the
administration of capital punishment and to suggest some solutions. You
will recall some of the shocking facts I described:

For every 7 people executed, 1 death row inmate is shown
some time after conviction to be innocent of the crime.
Many of those exonerated have come within hours of being
executed, and many have spent a decade or more in jail before
they were given a fair opportunity to establish their
innocence.
Capital defendants are frequently represented by lawyers
who lack the funds or the competence to do the job, or who
have been disbarred or suspended for misconduct, and, from
time to time, by lawyers who sleep through the trial, but the
courts turn a blind eye.
Inexpensive and practically foolproof means of proving
innocence are often denied to defendants.

The saddest fact of all, to me, is that the society facing this
crisis is not a medieval one; it is America, today, in the 21st
Century. As the Governor of Illinois told us when he placed a
moratorium on the death penalty in his State earlier this year,
something urgently needs to be done to remedy this situation. That is
why I have been talking with Senators on both sides of the aisle and
all sides of the capital punishment debate. That is why I have been
searching for ways to reduce the risk of mistaken executions.
That is why I am so pleased that today, with my good friend, the
junior

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Senator from Oregon (Senator Gordon Smith), we are introducing the
bipartisan Innocence Protection Act of 2000. This bill is a carefully
crafted package of criminal justice reforms designed to protect the
innocent and to ensure that if the death penalty is imposed, it is the
result of informed and reasoned deliberation, not politics, luck, bias
or guesswork.
Every American child is taught that justice is blind. It is important
to remember what justice is supposed to be blind to. Justice should
never be blind to the truth, it should never be blind to the evidence,
and it should never be blind to the teachings of modern science. What
justice should be blind to is ideology, politics, race and money.
Too often in this chamber, we find ourselves dividing along party or
ideological lines. The bill that Senator Smith and I are introducing
today is not about that, and it is not about whether in the abstract,
you favor or disfavor the death penalty. It is about what kind of
society we want America to be in the 21st Century.
I am optimistic about America's future. I have become all the more
optimistic in the past few months as I have seen an outpouring of
support across the political spectrum and across the country for
common-sense measures to reduce the risk of executing the innocent.
Today, Senator Smith and I are joined by Senators from both sides of
the aisle, by some who support capital punishment and by others who
oppose it. On the Republican side, I want to thank my friend Senator
Susan Collins of Maine and my fellow Vermonter, Senator Jim Jeffords.
On the Democratic side, Senators Levin, Feingold, Moynihan, Akaka,
Kerrey, and Wellstone. I also want to thank our House sponsors William
Delahunt and Ray LaHood, along with their 39 cosponsors, both
Democratic and Republican. Here on Capitol Hill it is our job to
represent Americans. The scores of legislators who have sponsored this
legislation clearly do represent Americans, both in their diversity and
in their readiness to work together for common-sense solutions.
The outpouring of bipartisan support we have seen in Congress
reflects an emerging public consensus. Opinion polls show Americans
divided on the death penalty in the abstract. But they show
overwhelmingly that Americans will not tolerate the execution of
innocent people, and that Americans expect their justice system to
provide everyone with a fair trial and a competent lawyer. A recent
Gallup Poll found that 92 percent of Americans believe that people
convicted before modern advances in DNA technology should be given the
opportunity to obtain DNA testing if such tests might show their
innocence.
I am also encouraged by the growing chorus of calls for reform of our
capital punishment system by criminal justice experts and respected
opinion leaders nationwide. George Will wrote in a April 6th column
that ``skepticism is in order'' when it comes to capital punishment.
Another conservative columnist, Bruce Fein, wrote in The Washington
Times on April 25th:

A decent respect for life . . . demands scrupulous concern
for the reliability of verdicts in capital punishment trials.
Otherwise, the death penalty game is not worth the gamble of
executing the innocent--a shameful stain on any system of
justice--and life sentences (perhaps in solitary confinement)
should be the maximum.

Mr. Fein writes as one who served as a senior Justice
Department official in the Reagan Administration.
More recently, on May 11th, the Constitution Project at Georgetown
University Law Center established a blue-ribbon National Committee to
Prevent Wrongful Executions, comprised of supporters and opponents of
the death penalty, Democrats and Republicans, including six former
State and Federal judges, a former U.S. Attorney, two former State
Attorneys General, and a former Director of the FBI. According to its
mission statement, this Committee is ``united in [its] profound concern
that, in recent years, and around the country, procedural safeguards
and other assurances of fundamental fairness in the administration of
capital punishment have been significantly diminished.'' Many of the
concerns that the Committee has raised are addressed in the legislation
that Senator Smith and I are introducing today.

Just yesterday, the editors of The Washington Times noted that ``the
increased use of DNA analysis has in fact revealed some serious flaws
in the way the justice system exacts the supreme penalty,'' and
succinctly expressed the common sense view of nine out of ten Americans
and the basic point that underlies our legislation: ``Surely no one
could reasonably object to making sure we execute only the guilty.''
I ask unanimous consent that The Washington Times editorial be
included in the Record at this point, together with the articles by
George Will and Bruce Fein, and editorials dated February 19 and 28
from the New York Times and The Washington Post, both praising the
Innocence Protection Act.
As I describe some of the major reforms proposed by our legislation,
I ask you to consider these issues from the perspective of a capital
juror, an ordinary citizen who is asked by his government to do one of
the toughest things a citizen can do: sit in judgment on another
person's life. You would not want to make the wrong decision. You would
want the process to work so that you could make the right decision.
We need to enact real reforms to combat the very real risk in America
today that an innocent person is being executed. I will now describe
some of the major reforms proposed by our legislation.
More than any other development, improvements in DNA testing have
provided the critical evidence to exonerate innocent people. In the
last decade, scores of wrongfully convicted people have been released
from prison--including many from death row--after DNA testing proved
they could not have committed the crime for which they were convicted.
In some cases the same DNA testing that vindicated the innocent helped
catch the guilty.
As I already mentioned, 92 percent of Americans agree that we need to
make DNA testing available in every appropriate case. But this
legislation is not about public opinion polls--it is about saving
innocent lives.
A few months ago, I met Kirk Bloodsworth, a former Marine who was
convicted and sentenced to death in Maryland for a crime that he did
not commit. Nine years later, DNA testing conclusively established his
innocence.
On the same day, I met Clyde Charles. He spent 9 years pleading with
the State of Louisiana for the DNA testing that eventually exonerated
him. He missed the childhood of his daughter, he contracted diabetes
and tuberculosis while in prison, and both of his parents died before
his release.
Just last Wednesday, the Governor of Texas pardoned A.B. Butler, who
served 17 years of a 99-year sentence for a sexual assault that he did
not commit before he was finally cleared by DNA testing. Butler spent
10 years trying to have DNA testing done in his case.
One day later, the Governor of Virginia ordered new DNA testing for
Earl Washington, a retarded man convicted of a rape-murder in 1982.
There are still significant numbers of convicted men and women in
prisons throughout the country whose trials preceded modern DNA
testing. If history is any guide, then some of these individuals are
innocent of any crime.
If DNA testing can help establish innocence, there is no reason to
deny testing, and every reason to grant it. This is not about guilty
people trying to get off on legal technicalities. This is about
innocent people trying to prove their innocence--and being thwarted by
legal technicalities. Our bill will allow retroactive tests for people
tried before DNA technology was available to them, and eliminate the
procedural bars that may prevent the introduction of new, exculpatory
DNA evidence. Our bill will also ensure that inmates are notified
before a State destroys a rape kit or other biological evidence that
may, through DNA testing, prove that an inmate was wrongfully
convicted.
What possible reason could there be to deny people access to the
evidence--often the only evidence--that could prove their innocence?
Now that we have DNA fingerprinting that can prove a person's
innocence, why should we as a society be willfully blind to the truth?
The sole argument I have heard advanced against the Leahy-Smith
proposal is that it is somehow overly broad. As best I can understand
this objection, the point seems to be that in

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some cases, DNA evidence will only confirm the jury's guilty verdict.
That is the point that Virginia prosecutors have advanced in opposing
DNA testing for death row inmate Derek Barnabei. But as the Washington
Post pointed out in a March 20th editorial about the Barnabei case, the
possibility that DNA testing will confirm an inmate's guilt is no
reason to deny testing:

It is hard to see why a state, before putting someone to
death, would be unwilling to demonstrate a jury verdict's
consistency with all of the evidence. Indeed, this is
precisely the type of case in which the state should have no
choice. Under [the Innocence Protection Act], states would be
obligated in such circumstances to allow post-conviction DNA
testing. Such a law would not merely offer a layer of
protection to innocent people but would increase public
confidence in the convictions of guilty people.

I am grateful for the Post's endorsement.
As the Post has pointed out, this is a common sense reform. As
opinion polls have shown, the idea of ensuring DNA testing is available
in appropriate cases enjoys the support of the vast majority of
Americans. And as the recent cases that I have discussed make clear,
this is a matter of national urgency. I hope we can move forward
expeditiously.
Post-conviction DNA testing is an essential safeguard that can save
innocent lives when the trial process has failed to uncover the truth.
As the Governor of New York has recognized, DNA testing also serves as
a window into the systemic flaws of our capital punishment apparatus.
In May, Governor Pataki proposed the creation of a panel to investigate
the facts behind DNA exonerations and to determine what went wrong.
When DNA uncovers one miscarriage of justice after another, it is
neither just nor sensible to stop at making post-conviction DNA testing
more available. It is unjust because innocent people should not have to
wait for years after trial to be exonerated and freed. It is not
sensible because society should not have to wait for years to know the
truth. When dozens of innocent people are being sentenced to death, and
dozens of guilty people are working free because the State has
convicted the wrong person, we must ask ourselves what went wrong in
the trial process, and we must take what steps we can to make sure it
does not happen again.
There is a recurring theme in wrongful conviction cases--incompetent
and grossly underpaid defense counsel. That theme is well illustrated
by the case of Federico Macias. He spent nine years on Texas's death
row and came within two days of execution because his trial lawyer did
almost nothing to prepare for trial. No doubt, being paid less than $12
an hour was a disincentive for the lawyer to conduct a more thorough
investigation.
This lawyer failed to call available witnesses who could have refuted
the State's case, and based his trial decisions on a fundamental
misunderstanding of Texas law. The lawyer also admitted he did no
investigation at all for the sentencing phase. His only preparation was
to speak to his client and his client's wife during the lunch break of
the sentencing proceeding.
Macias was eventually cleared of all charges and released from
prison, thanks to volunteer work by a Washington lawyer who intervened
just before the scheduled execution. Here is what the Federal Court of
Appeals had to say when it overturned Macias's conviction:

We are left with the firm conviction that Macias was denied
his constitutional right to adequate counsel in a capital
case in which actual innocence was a close question. The
state paid defense counsel $11.84 per hour. Unfortunately,
the justice system got only what it paid for.

Federico Macias's case was not unique. In the Texas criminal justice
system, there is a whole category of capital cases known as the
sleeping lawyer cases, to which the majority of the Texas Court of
Criminal Appeals has responded with apathy. This attitude was
chillingly conveyed by one Texas judge who reasoned that, while the
Constitution requires a defendant to be represented by a lawyer, it
``doesn't say the lawyer has to be awake.''
But this is not just a Texas problem, this is a nationwide problem.
In case after case across the country, capital defendants have found
their lives placed in the hands of lawyers who are hopelessly
incompetent--lawyers who were drunk during the trial; lawyers who never
bothered to investigate the case or even meet with their client before
trial; and lawyers who were suspended or disbarred.
Oklahoma spent all of $3,200 on the defense of Ronald Keith
Williamson; it got what it paid for when Williamson's lawyer failed to
investigate and present to the jury a simple fact--the fact that
another man had confessed to the murder. Both Williamson and his
codefendant were eventually cleared of any crime.
In Illinois, Dennis Williams was defended by a lawyer who was
simultaneously defending himself in disbarment proceedings. Williams
was eventually exonerated in 1996, after 18 years on death row, with
the help of three journalism students from Northwestern University.
That is not how the American adversarial system of criminal justice
is meant to work. Americans on trial for their lives should not be
condemned to rely on sleeping lawyers, drunk lawyers, disbarred
lawyers, or lawyers who do not have the resources to do the job. In our
society, lawyers and journalists both serve important fact-finding
functions. But, as one of the Northwestern University journalism
students so aptly said after proving the innocence of yet another death
row inmate, Anthony Porter, ``Twenty-one-year-olds are not supposed to
be responsible for finding the innocent people on death row.''
The need for competent and adequately funded lawyers to make our
adversarial system work is not a novel insight, and the lack of such
lawyers and funding is not a novel discovery. In 1991, Retired Chief
Justice Harold Clarke of Georgia told the Georgia State Bar that:

Providing lawyers for poor people accused of crimes is a
state obligation. The Constitution teaches us that. But more
important, common sense and human decency tell us that. Yet
we haven't listened to those voices.

In repeated resolutions dating back to the 1980s, the Conference of
Chief Justices has urged States to do more to ensure that capital
defendants are provided quality representation. In 1995, for example,
the Chief Justices resolved that each State should ``establish
standards and a process that will assure the timely appointment of
competent counsel, with adequate resources, to represent defendants in
capital cases at each stage of such proceedings.''
As we enter the 21st century, a few States have heeded this advice.
But many are still not listening to the voices of the people who know
first hand what a mockery incompetent and underfunded defense lawyers
can make of our criminal justice system. I have described two cases,
from Texas and Oklahoma, in which the State grossly underfunded
appointed counsel and got what it paid for. There are many more
examples, including an Alabama case within the past year in which the
court, after a full trial, limited the fee for investigating and
defending against a charge of capital murder to about $4,000. After
paying his investigator and paralegal, the lawyer pocketed $1,212,
which worked out to $5.05 an hour--less than the minimum wage.

We should not sit back and rely on 21-year-old journalism students to
save innocent people from execution. And a quarter of a century of
experience with the death penalty since the Supreme Court restored it
in 1976 teaches us that we cannot sit back and rely on the States to
provide adequate counsel to those whom they seek to execute.
We in Congress can never guarantee that the innocent will not be
convicted. But we have a responsibility, at a minimum, to ensure that
when people in this country are on trial for their lives, they will be
defended by lawyers who meet reasonable minimum standards of competence
and who have sufficient funds to investigate the facts and prepare
thoroughly for trial. That goal can be achieved by cooperation between
the States and the Federal Government whereby we give the States money
to fund their criminal justice systems conditioned on their meeting a
floor of minimum standards, and leave the States free to improve on
those standards if they are so inclined. That is what our bill seeks to
achieve.
What do we owe to the innocent people who are able to win their
release

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from prison? How do we compensate them for all the years they spent
behind bars, sometimes on death row, for all the lost wages, for all
the pain and suffering. In most cases, there is no compensation, or at
least not much. Federal law provides a miserly $5,000 in cases of
unjust imprisonment, regardless of the time served. In the case of
Clyde Charles, who spent 18 years in Louisiana's Angola prison, that
would come out to about 75 cents a day. Is that what society owes to
Clyde Charles, for the walls placed between him and his family for 18
years, for missing his daughter's childhood, and for the diabetes and
tuberculosis he contracted in prison? Does that seem about right--75
cents a day?
How about nothing at all? In 36 States, people who have been unjustly
convicted and incarcerated for crimes they did not commit are barred
from recovering any damages against the State. Louisiana, which
destroyed the life of Clyde Charles, has no compensation statute. The
States that have compensation statutes generally put a cap on payments,
although none sets the cap as low as the current Federal cap of $5,000.
Let us step back and put this situation in perspective. A few years
ago, a Maryland jury found that three young men had been falsely
imprisoned by a security guard at an Eddie Bauer clothing store. The
guard detained these men for about 10 minutes on suspicion of
shoplifting, and forced one of them to remove his shirt. How much did
the jury award for those 10 minutes of false imprisonment? $1 million.
Now compare what happened to Walter McMillian. In 1986, in a small
town in Alabama, an 18-year-old white woman was shot to death. Walter
McMillian was a black man who lived in the next town. From the day of
his arrest, McMillian was placed on death row. No physical evidence
linked him to the crime, and several people testified at the trial that
he could not have committed the murder because he was with them all
day. All three witnesses who connected McMillian with the murder later
recanted their testimony. The one supposed ``eyewitness'' said that
prosecutors had pressured him to implicate McMillian in the crime.
The jury in the trial recommended a life sentence, but the judge
overruled this recommendation and sentenced McMillian to death. His
case went through four rounds of appeal, all of which were denied. New
attorneys, not paid by the State of Alabama, voluntarily took over the
case and eventually found that the prosecutors had illegally withheld
exculpatory evidence. A story about the case appeared on 60 Minutes in
November 1992. Finally, the State agreed to investigate its earlier
handling of the case and admitted that a grave mistake had been made.
McMillian was freed into the welcoming arms of his family and friends
on March 3, 1993.
Despite many years of litigation, McMillian has never been given any
recompense for the years he was unjustly held on death row. His
attorney has taken the issue of just compensation all the way to the
U.S. Supreme Court, but to no avail.
Let us take another example in another State. In Oklahoma, 4 inmates
have been exonerated by DNA testing over the past few years. When you
add it up, they spent about 40 years in prison. Two of them were on
death row. One came within 5 days of execution. None has received
compensation--not a dime.
Putting one's life back together after such an experience is
difficult enough, even with financial support. Without such support, a
wrongly convicted person might never be able to establish roots that
would allow him to contribute to society.
We need to do more to help repair the lives that are shattered by
wrongful convictions. The Innocence Protection Act does this by raising
the Federal cap on compensation, and by pushing the States to provide
meaningful compensation to any person who is unjustly convicted and
sentenced to death.
Money damages will never compensate for the mental anguish of being
falsely convicted, for the lost years, or for the day-to-day brutality
and deprivations of prison. But we must do what we can. Society owes a
moral debt to the wrongfully imprisoned; that debt should be paid.
Finally, we as a Nation need to go back to first principles when it
comes to deciding who is eligible for the death penalty. The United
States stands alongside Iran, Nigeria, Pakistan, and Saudi Arabia as
the only nations still executing people for crimes committed as
juveniles. Is this the company that we want to keep?
The execution of juvenile offenders is also barred by several major
human rights treaties, including the U.N. Convention on the Rights of
the Child, the American Convention on Human Rights, and the
International Covenant on Civil and Political Rights--perhaps the most
important human rights documents in the world today. As a leader in the
human rights community, it would be fitting if the United States agreed
to respect the precepts of international humans rights law and comply
with the terms of these treaties.
This country should also stop executing the mentally retarded. People
with mental retardation have a diminished capacity to understand right
from wrong. They are more prone to confess to crimes they did not
commit simply to please their interrogators, and they are often unable
to assist their lawyer in preparing a defense. Executing them is wrong;
it is immoral. In addition, the execution of the mentally retarded,
like the execution of juvenile offenders, severely damages U.S.
standing in the international community.
Today, 13 States with capital punishment forbid the execution of
defendants with mental retardation. The State Senator who sponsored the
Nebraska bill in 1998 later said that it should not have been necessary
because ``no civilized, mature society would ever entertain the
possibility of executing anybody who was mentally retarded.''
The legislation that I introduce today proposes that the United
States Congress speak as the conscience of the Nation in condemning the
continued execution of juvenile offenders and the mentally retarded.
There can be no longer be any question that our capital punishment
system is in crisis. The Innocence Protection Act is the absolute
minimum we must do to prevent and catch these mistakes and to restore
the public's confidence in our criminal justice system.
I ask unanimous consent that the bill, a summary of the bill, and
additional material be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 2690

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Innocence
Protection Act of 2000''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.

TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

Sec. 101. Findings and purposes.
Sec. 102. DNA testing in Federal criminal justice system.
Sec. 103. DNA testing in State criminal justice systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.

TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

Sec. 201. Amendments to Byrne grant programs.
Sec. 202. Effect on procedural default rules.
Sec. 203. Capital representation grants.

TITLE III--COMPENSATING THE UNJUSTLY CONDEMNED

Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.

TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Accommodation of State interests in Federal death penalty
prosecutions.
Sec. 402. Alternative of life imprisonment without possibility of
release.
Sec. 403. Right to an informed jury.
Sec. 404. Annual reports.
Sec. 405. Discretionary appellate review.
Sec. 406. Sense of Congress regarding the execution of juvenile
offenders and the mentally retarded.

TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

SEC. 101. FINDINGS AND PURPOSES.

(a) Findings.--Congress makes the following findings:
(1) Over the past decade, deoxyribonucleic acid testing
(referred to in this section as ``DNA testing'') has emerged
as the most reliable forensic technique for identifying

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criminals when biological material is left at a crime scene.
(2) Because of its scientific precision, DNA testing can,
in some cases, conclusively establish the guilt or innocence
of a criminal defendant. In other cases, DNA testing may not
conclusively establish guilt or innocence, but may have
significant probative value to a finder of fact.
(3) While DNA testing is increasingly commonplace in
pretrial investigations today, it was not widely available in
cases tried prior to 1994. Moreover, new forensic DNA testing
procedures have made it possible to get results from minute
samples that could not previously be tested, and to obtain
more informative and accurate results than earlier forms of
forensic DNA testing could produce. Consequently, in some
cases convicted inmates have been exonerated by new DNA tests
after earlier tests had failed to produce definitive results.
(4) Since DNA testing is often feasible on relevant
biological material that is decades old, it can, in some
circumstances, prove that a conviction that predated the
development of DNA testing was based upon incorrect factual
findings. Uniquely, DNA evidence showing innocence, produced
decades after a conviction, provides a more reliable basis
for establishing a correct verdict than any evidence
proffered at the original trial. DNA testing, therefore, can
and has resulted in the post-conviction exoneration of
innocent men and women.
(5) In the past decade, there have been more than 65 post-
conviction exonerations in the United States and Canada based
upon DNA testing. At least 8 individuals sentenced to death
have been exonerated through post-conviction DNA testing,
some of whom came within days of being executed.
(6) The 2 States that have established statutory processes
for post-conviction DNA testing, Illinois and New York, have
the most post-conviction DNA exonerations, 14 and 7,
respectively.
(7) The advent of DNA testing raises serious concerns
regarding the prevalence of wrongful convictions, especially
wrongful convictions arising out of mistaken eyewitness
identification testimony. According to a 1996 Department of
Justice study entitled ``Convicted by Juries, Exonerated by
Science: Case Studies of Post-Conviction DNA Exonerations'',
in approximately 20 to 30 percent of the cases referred for
DNA testing, the results excluded the primary suspect.
Without DNA testing, many of these individuals might have
been wrongfully convicted.
(8) Laws in more than 30 States require that a motion for a
new trial based on newly discovered evidence of innocence be
filed within 6 months or less. These laws are premised on the
belief--inapplicable to DNA testing--that evidence becomes
less reliable over time. Such time limits have been used to
deny inmates access to DNA testing, even when guilt or
innocence could be conclusively established by such testing.
For example, in Dedge v. Florida, 723 So.2d 322 (Fla. Dist.
Ct. App. 1998), the court without opinion affirmed the denial
of a motion to release trial evidence for the purpose of DNA
testing. The trial court denied the motion as procedurally
barred under the 2-year limitation on claims of newly
discovered evidence established by the State of Florida,
which has since adopted a 6-month limitation on such claims.
(9) Even when DNA testing has been done and has
persuasively demonstrated the actual innocence of an inmate,
States have sometimes relied on time limits and other
procedural barriers to deny release.
(10) The National Commission on the Future of DNA Evidence,
a Federal panel established by the Department of Justice and
comprised of law enforcement, judicial, and scientific
experts, has issued a report entitled ``Recommendations For
Handling Post-Conviction DNA Applications'' that urges post-
conviction DNA testing in 2 carefully defined categories of
cases, notwithstanding procedural rules that could be invoked
to preclude such testing, and notwithstanding the inability
of the inmate to pay for the testing.
(11) The number of cases in which post-conviction DNA
testing is appropriate is relatively small and will decrease
as pretrial testing becomes more common and accessible.
(12) The cost of DNA testing has also decreased in recent
years. The typical case, involving the analysis of 8 samples,
currently costs between $2,400 and $5,000, depending upon
jurisdictional differences in personnel costs.
(13) In 1994, Congress authorized funding to improve the
quality and availability of DNA analysis for law enforcement
identification purposes. Since then, States have been awarded
over $50,000,000 in DNA-related grants.
(14) Although the Supreme Court has never announced a
standard for addressing constitutional claims of innocence,
in Herrera v. Collins, 506 U.S. 390 (1993), a majority of the
Court expressed the view that, ``a truly persuasive
demonstration of `actual innocence' '' made after trial would
render imposition of punishment by a State unconstitutional.
(15) If biological material is not subjected to DNA testing
in appropriate cases, there is a significant risk that
persuasive evidence of innocence will not be detected and,
accordingly, that innocent persons will be unconstitutionally
incarcerated or executed.
(16) To prevent violations of the Constitution of the
United States that the Supreme Court anticipated in Herrera
v. Collins, it is necessary and proper to enact national
legislation that ensures that the Federal Government and the
States will permit DNA testing in appropriate cases.
(17) There is also a compelling need to ensure the
preservation of biological material for post-conviction DNA
testing. Since 1992, the Innocence Project at the Benjamin N.
Cardozo School of Law has received thousands of letters from
inmates who claim that DNA testing could prove them innocent.
In over 70 percent of those cases in which DNA testing could
have been dispositive of guilt or innocence if the biological
material were available, the material had been destroyed or
lost. In two-thirds of the cases in which the evidence was
found, and DNA testing conducted, the results have exonerated
the inmate.
(18) In at least 14 cases, post-conviction DNA testing that
has exonerated a wrongly convicted person has also provided
evidence leading to the apprehension of the actual
perpetrator, thereby enhancing public safety. This would not
have been possible if the biological evidence had been
destroyed.
(b) Purposes.--The purposes of this title are to--
(1) substantially implement the Recommendations of the
National Commission on the Future of DNA Evidence in the
Federal criminal justice system, by ensuring the availability
of DNA testing in appropriate cases;
(2) prevent the imposition of unconstitutional punishments
through the exercise of power granted by clause 1 of section
8 and clause 2 of section 9 of article I of the Constitution
of the United States and section 5 of the 14th amendment to
the Constitution of the United States; and
(3) ensure that wrongfully convicted persons have an
opportunity to establish their innocence through DNA testing,
by requiring the preservation of DNA evidence for a limited
period.

SEC. 102. DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYSTEM.

(a) In General.--Part VI of title 28, United States Code,
is amended by inserting after chapter 155 the following:

``CHAPTER 156--DNA TESTING

``Sec.
``2291. DNA testing.
``2292. Preservation of biological material.

``Sec. 2291. DNA testing

``(a) Application.--Notwithstanding any other provision of
law, a person in custody pursuant to the judgment of a court
established by an Act of Congress may, at any time after
conviction, apply to the court that entered the judgment for
forensic DNA testing of any biological material that--
``(1) is related to the investigation or prosecution that
resulted in the judgment;
``(2) is in the actual or constructive possession of the
Government; and
``(3) was not previously subjected to DNA testing, or can
be subjected to retesting with new DNA techniques that
provide a reasonable likelihood of more accurate and
probative results.
``(b) Notice to Government.--
``(1) In general.--The court shall notify the Government of
an application made under subsection (a) and shall afford the
Government an opportunity to respond.
``(2) Preservation of remaining biological material.--Upon
receiving notice of an application made under subsection (a),
the Government shall take such steps as are necessary to
ensure that any remaining biological material that was
secured in connection with the case is preserved pending the
completion of proceedings under this section.
``(c) Order.--The court shall order DNA testing pursuant to
an application made under subsection (a) upon a determination
that testing may produce noncumulative, exculpatory evidence
relevant to the claim of the applicant that the applicant was
wrongfully convicted or sentenced.
``(d) Cost.--The cost of DNA testing ordered under
subsection (c) shall be borne by the Government or the
applicant, as the court may order in the interests of
justice, if it is shown that the applicant is not indigent
and possesses the means to pay.
``(e) Counsel.--The court may at any time appoint counsel
for an indigent applicant under this section.
``(f) Post-Testing Procedures.--
``(1) Procedures following results unfavorable to
applicant.--If the results of DNA testing conducted under
this section are unfavorable to the applicant, the court--
``(A) shall dismiss the application; and
``(B) in the case of an applicant who is not indigent, may
assess the applicant for the cost of such testing.
``(2) Procedures following results favorable to
applicant.--If the results of DNA testing conducted under
this section are favorable to the applicant, the court
shall--
``(A) order a hearing, notwithstanding any provision of law
that would bar such a hearing; and
``(B) enter any order that serves the interests of justice,
including an order--
``(i) vacating and setting aside the judgment;
``(ii) discharging the applicant if the applicant is in
custody;
``(iii) resentencing the applicant; or
``(iv) granting a new trial.
``(g) Rule of Construction.--Nothing in this section shall
be construed to limit the

[[Page S4678]]

circumstances under which a person may obtain DNA testing or
other post-conviction relief under any other provision of
law.

``Sec. 2292. Preservation of biological material

``(a) In General.--Notwithstanding any other provision of
law and subject to subsection (b), the Government shall
preserve any biological material secured in connection with a
criminal case for such period of time as any person remains
incarcerated in connection with that case.
``(b) Exception.--The Government may destroy biological
material before the expiration of the period of time
described in subsection (a) if--
``(1) the Government notifies any person who remains
incarcerated in connection with the case, and any counsel of
record or public defender organization for the judicial
district in which the judgment of conviction for such person
was entered, of--
``(A) the intention of the Government to destroy the
material; and
``(B) the provisions of this chapter;
``(2) no person makes an application under section 2291(a)
within 90 days of receiving notice under paragraph (1) of
this subsection; and
``(3) no other provision of law requires that such
biological material be preserved.''.
(b) Technical and Conforming Amendment.--The analysis for
part VI of title 28, United States Code, is amended by
inserting after the item relating to chapter 155 the
following:

``156. DNA Testing..........................................2291''.....

SEC. 103. DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS.

(a) DNA Identification Grant Program.--Section 2403 of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3796kk-2) is amended--
(1) in paragraph (2)--
(A) in the matter preceding subparagraph (A), by striking
``shall'' and inserting ``will'';
(B) in subparagraph (C), by striking ``is charged'' and
inserting ``was charged or convicted''; and
(C) in subparagraph (D), by striking ``and'' at the end;
(2) in paragraph (3)--
(A) by striking ``shall'' and inserting ``will''; and
(B) by striking the period at the end and inserting ``;
and''; and
(3) by adding at the end the following:
``(4) the State will--
``(A) preserve all biological material secured in
connection with a State criminal case for not less than the
period of time that biological material is required to be
preserved under section 2292 of title 28, United States Code,
in the case of a person incarcerated in connection with a
Federal criminal case; and
``(B) make DNA testing available to any person convicted in
State court to the same extent, and under the same
conditions, that DNA testing is available under section 2291
of title 28, United States Code, to any person convicted in a
court established by an Act of Congress.''.
(b) Drug Control and System Improvement Grant Program.--
Section 503(a)(12) of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)) is
amended--
(1) in subparagraph (B)--
(A) in clause (iii), by striking ``is charged'' and
inserting ``was charged or convicted''; and
(B) in clause (iv), by striking ``and'' at the end;
(2) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(D) the State will--
``(i) preserve all biological material secured in
connection with a State criminal case for not less than the
period of time that biological material is required to be
preserved under section 2292 of title 28, United States Code,
in the case of a person incarcerated in connection with a
Federal criminal case; and
``(ii) make DNA testing available to a person convicted in
State court to the same extent, and under the same
conditions, that DNA testing is available under section 2291
of title 28, United States Code, to a person convicted in a
court established by an Act of Congress.''.
(c) Public Safety and Community Policing Grant Program.--
Section 1702(c) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796dd-1(c)) is amended--
(1) in paragraph (10), by striking ``and'' at the end;
(2) in paragraph (11), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(12) if any part of funds received from a grant made
under this subchapter is to be used to develop or improve a
DNA analysis capability in a forensic laboratory, or to
obtain or analyze DNA samples for inclusion in the Combined
DNA Index System (CODIS), certify that--
``(A) DNA analyses performed at such laboratory will
satisfy or exceed the current standards for a quality
assurance program for DNA analysis, issued by the Director of
the Federal Bureau of Investigation under section 210303 of
the DNA Identification Act of 1994 (42 U.S.C. 14131);
``(B) DNA samples and analyses obtained and performed by
such laboratory will be accessible only--
``(i) to criminal justice agencies for law enforcement
purposes;
``(ii) in judicial proceedings, if otherwise admissible
under applicable statutes and rules;
``(iii) for criminal defense purposes, to a defendant, who
shall have access to samples and analyses performed in
connection with the case in which the defendant was charged
or convicted; or
``(iv) if personally identifiable information is removed,
for a population statistics database, for identification
research and protocol development purposes, or for quality
control purposes;
``(C) the laboratory and each analyst performing DNA
analyses at the laboratory will undergo, at regular intervals
not exceeding 180 days, external proficiency testing by a DNA
proficiency testing program that meets the standards issued
under section 210303 of the DNA Identification Act of 1994
(42 U.S.C. 14131); and
``(D) the State will--
``(i) preserve all biological material secured in
connection with a State criminal case for not less than the
period of time that biological material is required to be
preserved under section 2292 of title 28, United States Code,
in the case of a person incarcerated in connection with a
Federal criminal case; and
``(ii) make DNA testing available to any person convicted
in State court to the same extent, and under the same
conditions, that DNA testing is available under section 2291
of title 28, United States Code, to a person convicted in a
court established by an Act of Congress.''.

SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH
AMENDMENT.

(a) Request for DNA Testing.--
(1) In general.--No State shall deny a request, made by a
person in custody resulting from a State court judgment, for
DNA testing of biological material that--
(A) is related to the investigation or prosecution that
resulted in the conviction of the person or the sentence
imposed on the person;
(B) is in the actual or constructive possession of the
State; and
(C) was not previously subjected to DNA testing, or can be
subjected to retesting with new DNA techniques that provide a
reasonable likelihood of more accurate and probative results.
(2) Exception.--A State may deny a request under paragraph
(1) upon a judicial determination that testing could not
produce noncumulative evidence establishing a reasonable
probability that the person was wrongfully convicted or
sentenced.
(b) Opportunity To Present Results of DNA Testing.--No
State shall rely upon a time limit or procedural default rule
to deny a person an opportunity to present noncumulative,
exculpatory DNA results in court, or in an executive or
administrative forum in which a decision is made in
accordance with procedural due process.
(c) Remedy.--A person may enforce subsections (a) and (b)
in a civil action for declaratory or injunctive relief, filed
either in a State court of general jurisdiction or in a
district court of the United States, naming either the State
or an executive or judicial officer of the State as
defendant. No State or State executive or judicial officer
shall have immunity from actions under this subsection.

TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

SEC. 201. AMENDMENTS TO BYRNE GRANT PROGRAMS.

(a) Certification Requirement; Formula Grants.--Section 503
of title I of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. 3753) is amended--
(1) in subsection (a), by adding at the end the following:
``(13) If the State prescribes, authorizes, or permits the
penalty of death for any offense, a certification that the
State has established and maintains an effective system for
providing competent legal services to indigents at every
phase of a State criminal prosecution in which a death
sentence is sought or has been imposed, up to and including
direct appellate review and post-conviction review in State
court.''; and
(2) in subsection (b)--
(A) by striking ``(b) Within 30 days after the date of
enactment of this part, the'' and inserting the following:
``(b) Regulations.--
``(1) In general.--The''; and
(B) by adding at the end the following:
``(2) Certification regulations.--The Director of the
Administrative Office of the United States Courts, after
notice and an opportunity for comment, shall promulgate
regulations specifying the elements of an effective system
within the meaning of subsection (a)(13), which elements
shall include--
``(A) a centralized and independent appointing authority,
which shall have authority and responsibility to--
``(i) recruit attorneys who are qualified to represent
indigents in the capital proceedings specified in subsection
(a)(13);
``(ii) draft and annually publish a roster of qualified
attorneys;
``(iii) draft and annually publish qualifications and
performance standards that attorneys must satisfy to be
listed on the roster and procedures by which qualified
attorneys are identified;
``(iv) periodically review the roster, monitor the
performance of all attorneys appointed, provide a mechanism
by which members of the Bar may comment on the

[[Page S4679]]

performance of their peers, and delete the name of any
attorney who fails to complete regular training programs on
the representation of clients in capital cases, fails to meet
performance standards in a case to which the attorney is
appointed, or otherwise fails to demonstrate continuing
competence to represent clients in capital cases;
``(v) conduct or sponsor specialized training programs for
attorneys representing clients in capital cases;
``(vi) appoint lead counsel and co-counsel from the roster
to represent a defendant in a capital case promptly upon
receiving notice of the need for an appointment from the
relevant State court; and
``(vii) report the appointment, or the failure of the
defendant to accept such appointment, to the court requesting
the appointment;
``(B) compensation of private attorneys for actual time and
service, computed on an hourly basis and at a reasonable
hourly rate in light of the qualifications and experience of
the attorney and the local market for legal representation in
cases reflecting the complexity and responsibility of capital
cases;
``(C) reimbursement of private attorneys and public
defender organizations for attorney expenses reasonably
incurred in the representation of a client in a capital case,
computed on an hourly basis reflecting the local market for
such services; and
``(D) reimbursement of private attorneys and public
defender organizations for the reasonable costs of law
clerks, paralegals, investigators, experts, scientific tests,
and other support services necessary in the representation of
a defendant in a capital case, computed on an hourly basis
reflecting the local market for such services.''.
(b) Certification Requirement; Discretionary Grants.--
Section 517(a) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3763(a)) is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(5) satisfies the certification requirement established
by section 503(a)(13).''.
(c) Director's Reports to Congress.--Section 522(b) of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3766b(b)) is amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
``(5) descriptions and a comparative analysis of the
systems established by each State in order to satisfy the
certification requirement established by section 503(a)(13),
except that the descriptions and the comparative analysis
shall include--
``(A) the qualifications and performance standards
established pursuant to section 503(b)(2)(A)(iii);
``(B) the rates of compensation paid under section
503(b)(2)(B); and
``(C) the rates of reimbursement paid under subparagraphs
(C) and (D) of section 503(b)(2); and''.
(d) Effective Date.--
(1) In general.--Subject to paragraph (2), the amendments
made by this section shall apply with respect to any
application submitted on or after the date that is 1 year
after the date of enactment of this Act.
(2) Exception.--The amendments made by this section shall
not take effect until the amount made available for a fiscal
year to carry out part E of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 equals or exceeds an
amount that is $50,000,000 greater than the amount made
available to carry out that part for fiscal year 2000.
(e) Regulations.--The Director of the Administrative Office
of the United States Courts shall issue all regulations
necessary to carry out the amendments made by this section
not later than 180 days before the effective date of those
regulations.

SEC. 202. EFFECT ON PROCEDURAL DEFAULT RULES.

Section 2254(e) of title 28, United States Code, is
amended--
(1) in paragraph (1), by striking ``In a proceeding'' and
inserting ``Except as provided in paragraph (3), in a
proceeding''; and
(2) by adding at the end the following:
``(3) In a proceeding instituted by an indigent applicant
under sentence of death, the court shall neither presume a
finding of fact made by a State court to be correct nor
decline to consider a claim on the ground that the applicant
failed to raise such claim in State court at the time and in
the manner prescribed by State law, unless--
``(A) the State provided the applicant with legal services
at the stage of the State proceedings at which the State
court made the finding of fact or the applicant failed to
raise the claim; and
``(B) the legal services the State provided satisfied the
regulations promulgated by the Director of the Administrative
Office of the United States Courts pursuant to section
503(b)(2) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968.''.

SEC. 203. CAPITAL REPRESENTATION GRANTS.

Section 3006A of title 18, United States Code, is amended--
(1) by redesignating subsections (i), (j), and (k) as
subsections (j), (k), and (l), respectively; and
(2) by inserting after subsection (h) the following:
``(i) Capital Representation Grants.--
``(1) Definitions.--In this subsection--
``(A) the term `capital case'--
``(i) means any criminal case in which a defendant
prosecuted in a State court is subject to a sentence of death
or in which a death sentence has been imposed; and
``(ii) includes all proceedings filed in connection with
the case, including trial, appellate, and Federal and State
post-conviction proceedings;
``(B) the term `defense services' includes--
``(i) recruitment of counsel;
``(ii) training of counsel;
``(iii) legal and administrative support and assistance to
counsel;
``(iv) direct representation of defendants, if the
availability of other qualified counsel is inadequate to meet
the need in the jurisdiction served by the grant recipient;
and
``(v) investigative, expert, or other services necessary
for adequate representation; and
``(C) the term `Director' means the Director of the
Administrative Office of the United States Courts.
``(2) Grant award and contract authority.--Notwithstanding
subsection (g), the Director shall award grants to, or enter
into contracts with, public agencies or private nonprofit
organizations for the purpose of providing defense services
in capital cases.
``(3) Purposes.--Grants and contracts awarded under this
subsection shall be used in connection with capital cases in
the jurisdiction of the grant recipient for 1 or more of the
following purposes:
``(A) Enhancing the availability, competence, and prompt
assignment of counsel.
``(B) Encouraging continuity of representation between
Federal and State proceedings.
``(C) Decreasing the cost of providing qualified counsel.
``(D) Increasing the efficiency with which such cases are
resolved.
``(4) Guidelines.--The Director, in consultation with the
Judicial Conference of the United States, shall develop
guidelines to ensure that defense services provided by
recipients of grants and contracts awarded under this
subsection are consistent with applicable legal and ethical
proscriptions governing the duties of counsel in capital
cases.
``(5) Consultation.--In awarding grants and contracts under
this subsection, the Director shall consult with
representatives of the highest State court, the organized
bar, and the defense bar of the jurisdiction to be served by
the recipient of the grant or contract.''.

TITLE III--COMPENSATING THE UNJUSTLY CONDEMNED

SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

Section 2513 of title 28, United States Code, is amended by
striking subsection (e) and inserting the following:
``(e) Damages.--
``(1) In general.--The amount of damages awarded in an
action described in subsection (a) shall not exceed $50,000
for each 12-month period of incarceration, except that a
plaintiff who was unjustly sentenced to death may be awarded
not more than $100,000 for each 12-month period of
incarceration.
``(2) Factors for consideration in assessing damages.--In
assessing damages in an action described in subsection (a),
the court shall consider--
``(A) the circumstances surrounding the unjust conviction
of the plaintiff, including any misconduct by officers or
employees of the Federal Government;
``(B) the length and conditions of the unjust incarceration
of the plaintiff; and
``(C) the family circumstances, loss of wages, and pain and
suffering of the plaintiff.''.

SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.

(a) Criminal Justice Facility Construction Grant Program.--
Section 603(a) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3769b(a)) is amended--
(1) in paragraph (5), by striking ``and'' at the end;
(2) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(7) reasonable assurance that the applicant, or the State
in which the applicant is located--
``(A) does not prescribe, authorize, or permit the penalty
of death for any offense; or
``(B)(i) has established and maintains an effective
procedure by which any person unjustly convicted of an
offense against the State and sentenced to death may be
awarded reasonable damages upon substantial proof that the
person did not commit any of the acts with which the person
was charged; and
``(ii)(I) the conviction of that person was reversed or set
aside on the ground that the person was not guilty of the
offense or offenses of which the person was convicted;
``(II) the person was found not guilty of such offense or
offenses on new trial or rehearing; or
``(III) the person was pardoned upon the stated ground of
innocence and unjust conviction.''.
(b) Effective Date.--The amendments made by this section
shall apply with respect to any application submitted on or
after the date that is 1 year after the date of enactment of
this Act.

[[Page S4680]]

TITLE IV--MISCELLANEOUS PROVISIONS

SEC. 401. ACCOMMODATION OF STATE INTERESTS IN FEDERAL DEATH
PENALTY PROSECUTIONS.

(a) Recognition of State Interests.--Chapter 228 of title
18, United States Code, is amended by adding at the end the
following:

``Sec. 3599. Accommodation of State interests; certification
requirement

``(a) In General.--Notwithstanding any other provision of
law, the Government shall not seek the death penalty in any
case initially brought before a district court of the United
States that sits in a State that does not prescribe,
authorize, or permit the imposition of such penalty for the
alleged conduct, except upon the certification in writing of
the Attorney General or the designee of the Attorney General
that--
``(1) the State does not have jurisdiction or refuses to
assume jurisdiction over the defendant with respect to the
alleged conduct;
``(2) the State has requested that the Federal Government
assume jurisdiction; or
``(3) the offense charged is an offense described in
section 32, 229, 351, 794, 1091, 1114, 1118, 1203, 1751,
1992, 2340A, or 2381, or chapter 113B.
``(b) ``State Defined.--In this section, the term `State'
means each of the several States of the United States, the
District of Columbia, and the territories and possessions of
the United States.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 228 of title 18, United States Code, is amended by
adding at the end the following:

``3599. Accommodation of State interests; certification requirement.''.

SEC. 402. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT
POSSIBILITY OF RELEASE.

Section 408(l) of the Controlled Substances Act (21 U.S.C.
848(l)), is amended by striking the first 2 sentences and
inserting the following: ``Upon a recommendation under
subsection (k) that the defendant should be sentenced to
death or life imprisonment without possibility of release,
the court shall sentence the defendant accordingly.
Otherwise, the court shall impose any lesser sentence that is
authorized by law.''.

SEC. 403. RIGHT TO AN INFORMED JURY.

(a) Additional Requirements.--Section 20105 of the Violent
Crime Control and Law Enforcement Act of 1994 (42 U.S.C.
13705) is amended by striking subsection (b) and inserting
the following:
``(b) Additional Requirements.--To be eligible to receive a
grant under section 20103 or 20104, a State shall provide
assurances to the Attorney General that--
``(1) the State has implemented policies that provide for
the recognition of the rights and needs of crime victims; and
``(2) in any capital case in which the jury has a role in
determining the sentence imposed on the defendant, the court,
at the request of the defendant, shall inform the jury of all
statutorily authorized sentencing options in the particular
case, including applicable parole eligibility rules and
terms.''.
(b) Effective Date.--The amendments made by this section
shall apply with respect to any application for a grant under
section 20103 or 20104 of the Violent Crime Control and Law
Enforcement Act of 1994 (42 U.S.C. 13703; 13704) that is
submitted on or after the date that is 1 year after the date
of enactment of this Act.

SEC. 404. ANNUAL REPORTS.

(a) Report.--Not later than 2 years after the date of
enactment of this Act, and annually thereafter, the Attorney
General shall prepare and transmit to Congress a report
concerning the administration of capital punishment laws by
the Federal Government and the States.
(b) Report Elements.--The report required under subsection
(a) shall include substantially the same categories of
information as are included in the Bureau of Justice
Statistics Bulletin entitled ``Capital Punishment 1998''
(December 1999, NCJ 179012), and the following additional
categories of information:
(1) The percentage of death-eligible cases in which a death
sentence is sought, and the percentage in which it is
imposed.
(2) The race of the defendants in death-eligible cases,
including death-eligible cases in which a death sentence is
not sought, and the race of the victims.
(3) An analysis of the effect of Witherspoon v. Illinois,
391 U.S. 510 (1968), and its progeny, on the composition of
juries in capital cases, including the racial composition of
such juries, and on the exclusion of otherwise eligible and
available jurors from such cases.
(4) An analysis of the effect of peremptory challenges, by
the prosecution and defense respectively, on the composition
of juries in capital cases, including the racial composition
of such juries, and on the exclusion of otherwise eligible
and available jurors from such cases.
(5) The percentage of capital cases in which life without
parole is available as an alternative to a death sentence,
and the sentences imposed in such cases.
(6) The percentage of capital cases in which life without
parole is not available as an alternative to a death
sentence, and the sentences imposed in such cases.
(7) The percentage of capital cases in which counsel is
retained by the defendant, and the percentage in which
counsel is appointed by the court.
(8) A comparative analysis of systems for appointing
counsel in capital cases in different States.
(9) A State-by-State analysis of the rates of compensation
paid in capital cases to appointed counsel and their support
staffs.
(10) The percentage of cases in which a death sentence or a
conviction underlying a death sentence is vacated, reversed,
or set aside, and the reasons therefore.
(c) Public Disclosure.--The Attorney General or the
Director of the Bureau of Justice Assistance, as appropriate,
shall ensure that the reports referred to in subsection (a)
are--
(1) distributed to national print and broadcast media; and
(2) posted on an Internet website maintained by the
Department of Justice.

SEC. 405. DISCRETIONARY APPELLATE REVIEW.

Section 2254(c) of title 28, United States Code, is
amended--
(1) by inserting ``(1)'' after ``(c)''; and
(2) by adding at the end the following:
``(2) For purposes of paragraph (1), if the highest court
of a State has discretion to decline appellate review of a
case or a claim, a petition asking that court to entertain a
case or a claim is not an available State court procedure.''.

SEC. 406. SENSE OF CONGRESS REGARDING THE EXECUTION OF
JUVENILE OFFENDERS AND THE MENTALLY RETARDED.

It is the sense of Congress that the death penalty is
disproportionate and offends contemporary standards of
decency when applied to a person who is mentally retarded or
who had not attained the age of 18 years at the time of the
offense.
____

Innocence Protection Act of 2000--Section-by-Section Summary

overview

The Innocence Protection Act of 2000 is a comprehensive
package of criminal justice reforms aimed at reducing the
risk that innocent persons may be executed. Most urgently,
the bill would (1) ensure that convicted offenders are
afforded an opportunity to prove their innocence through DNA
testing; (2) help States to provide competent legal services
at every stage of a death penalty prosecution; (3) enable
those who can prove their innocence to recover some measure
of compensation for their unjust incarceration; and (4)
provide the public with more reliable and detailed
information regarding the administration of the nation's
capital punishment laws.

title I--exonerating the innocent through federal post-conviction
review

Sec. 101. Findings and purposes. Legislative findings and
purposes in support of this title.
Sec. 102. DNA testing in Federal criminal justice system.
Establishes rules and procedures governing applications for
DNA testing by convicted offenders in the Federal system. An
applicant must allege that evidence to be tested (1) is
related to the investigation or prosecution that resulted in
the applicant's conviction; (2) is in the government's actual
or constructive possession; and (3) was not previously
subjected to DNA testing, or to the form of DNA testing now
requested. The court may, in its discretion, appoint counsel
for an indigent applicant.
Because access to DNA testing is of no value unless
evidence containing DNA has been preserved, this section also
prohibits the government from destroying any biological
material in a criminal case while any person remains
incarcerated in connection with that case, unless such person
is notified of the government's intent to destroy the
material, and afforded at least 90 days to request DNA
testing under this title.
Sec. 103. DNA testing in State criminal justice system.
Conditions receipt of Federal grants for DNA-related programs
on an assurance that the State will adopt adequate procedures
for preserving biological material and making DNA testing
available to its inmates.
Sec. 104. Prohibition pursuant to section 5 of the 14th
amendment. Prohibits States from (1) denying requests for DNA
testing that could produce new exculpatory evidence or (2)
denying inmates a meaningful opportunity to prove their
innocence using the results of DNA testing. Creates an
authority to sue for declaratory or injunctive relief to
enforce these prohibitions.

title ii--ensuring competent legal services in capital cases

Sec. 201. Amendments to Byrne grant programs. Conditions
Federal funding under the Byrne grant programs--when such
funding equals or exceeds an amount that is $50 million
greater than the amount appropriated for such programs in FY
2000--on certification that the State has established and
maintains an ``effective system'' for providing competent
legal services to indigent defendants at every stage of death
penalty prosecution, from pre-trial proceedings through post-
conviction review. The Director of the Administrative Office
of the United States Courts is charged with specifying the
elements of an ``effective system,'' which must include a
centralized and independent authority for appointing
attorneys in capital cases, and adequate compensation and
reimbursement of such attorneys.
Sec. 202. Effect on procedural default rules. Provides that
certain procedural barriers to Federal habeas corpus review
shall not apply if the State failed to provide the petitioner
with adequate legal services.
Sec. 203. Capital representation grants. Amends the
Criminal Justice Act, 18 U.S.C. Sec. 3006A, to make more
Federal funding available to public agencies and private non-
profit organizations for purposes of enhancing

[[Page S4681]]

the availability and competence of counsel in capital cases,
encouraging the continuity of representation in such cases,
decreasing the cost of providing qualified death penalty
counsel, and increasing the efficiency with which capital
cases are resolved.

title iii--compensating the unjustly condemned

Sec. 301. Increased compensation in Federal cases. Raises
the total amount of damages that may be awarded against the
United States in cases of unjust imprisonment from $5,000 to
$50,000 a year in a non-death penalty case, or $100,000 a
year in a death penalty case. Identifies factors for court to
consider in assessing damages.
Sec. 302. Compensation in State death cases. Encourages
States to permit any person who was unjustly convicted and
sentenced to death to be awarded reasonable damages, upon
substantial proof of innocence and formal exoneration, by
adding a new condition for Federal funding to assist in
construction of correctional facility projects.

title iv--miscellaneous

Sec. 401. Accommodation of State interests in Federal
death-penalty prosecutions. Protects the interests of States
(including the District of Columbia and any commonwealth,
territory or possession of the United States) by limiting the
Federal government's authority to seek the death penalty in
States that do not permit the imposition of such penalty.
Department of Justice guidelines provide that in cases of
concurrent jurisdiction, ``a Federal indictment for an
offense subject to the death penalty will be obtained only
when the Federal interest in the prosecution is more
substantial than the interests of the State or local
authorities.'' Section 401 builds on that principle by
requiring the Attorney General or her designee to certify
that (1) the State does not have jurisdiction or refuses to
assume jurisdiction over the defendant; (2) the State has
requested that the Federal government assume jurisdiction; or
(3) the offense charged involves genocide; terrorism; use of
chemical weapons or weapons of mass-destruction; destruction
of aircraft, trains, or other instrumentalities or facilities
of interstate commerce; hostage taking; torture; espionage;
treason; the killing of certain high public officials; or
murder by a Federal prisoner.
Sec. 402. Alternative of life imprisonment without
possibility of release. Provides juries in Federal death
penalty prosecutions brought under the drug kingpin statute,
21 U.S.C. Sec. 848(l), the option of recommending life
imprisonment without possibility of release. This amendment
brings the drug kingpin statute into conformity with the more
recently-enacted death penalty procedures in title 18, which
govern most Federal death penalty prosecutions. See 18 U.S.C.
Sec. 3594.
Sec. 403. Right to an informed jury. Conditions Federal
truth-in-sentencing grants upon certification that, in any
capital case in which the jury has a role in determining the
defendant's sentence, the defendant has the right to have the
jury informed of all statutorily-authorized sentencing
options in the particular case, including applicable parole
eligibility rules and terms. The purpose is to give full
effect to the due process principles underlying the Supreme
Court's decision in Simmons v. South Carolina, 512 U.S. 154
(1994), which held that a defendant who has been convicted of
a capital offense is entitled to an instruction informing the
sentencing jury that he is ineligible for parole under State
law.
Sec. 404. Annual reports. Directs the Justice Department to
prepare an annual report regarding the administration of the
nation's capital punishment laws. The report must be
submitted to Congress, distributed to the press and posted on
the Internet.
Sec. 405. Discretionary appellate review. Respects State
procedural rules by allowing Federal habeas corpus
petitioners to raise claims that State courts discouraged
them from raising when seeking discretionary review in the
State's highest court. Responds to the Supreme Court's
decision in O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999),
which held that a State prisoner must present his claims to a
State supreme court in a petition for discretionary review in
order to satisfy the exhaustion requirement of 28 U.S.C.
Sec. 2254(b)(1), (c).
Sec. 406. Sense of the Congress regarding the execution of
juvenile offenders and the mentally retarded. Expresses the
sense of the Congress that the death penalty is
disproportionate and offends contemporary standards of
decency when applied to juvenile offenders and the mentally
retarded.
____

[From the Washington Times, June 6, 2000]

Thoughts on Executions

In his decision to halt Thursday evening's execution of a
convicted killer for a period of 30 days, Texas Gov. George
W. Bush did what had to be done. Where there is no shadow of
a doubt, the death penalty can sometimes be the right course
of action. Yet, where doubt, any doubt, remains, the
consequences are awesome. In the case of Ricky Nolan McGinn,
who was sentenced to death for raping and murdering his 13-
year-old stepdaughter in 1993, there seems to be some
uncertainty, in which case every means should be used to
establish the truth. When you take a man's life, you take
everything he's got. There simply is no way to make up for a
mistake made in the execution chamber.
Mr. Bush cannot be accused of being soft on criminals.
During his five and a half years in office, Mr. Bush has
presided over more executions than any other governor in the
country: 131, all told. Most famously, Mr. Bush refused to
reduce the sentence of Karla Faye Tucker in 1998. She had
been convicted of the particularly horrible execution-style
murder of two persons during a gas station robbery, and while
in prison had become a born-again Christian. Though religious
leaders such as Pat Robertson pleaded for her life, Mr. Bush
allowed the execution to go forward. The fact that he has
chosen to grant a 30-day reprieve in this one case can hardly
be said to indicate a change of heart on the death penalty.
Nevertheless, in the partisan heat of a presidential
election year, Mr. Bush has been accused of playing politics
with the death penalty. If this is the case, he is doing so
on the side of giving someone on death row a final chance.
This contrasts with Gov. Bill Clinton's decision to proceed
with the execution of a severely retarded Arkansas man during
the 1992 presidential election campaign, which was meant to
establish his tough-on-crime credentials.
But beyond the question of politics, there's science. Mr.
Bush is catching a nationwide movement, based on advances
that are making DNA testing increasingly sophisticated. The
increased use of DNA analysis has in fact revealed serious
flaws in the way the justice system exacts the supreme
penalty. The trend towards state moratoria on executions has
been led by Gov. George Ryan of Illinois, a Republican. In
Illinois, during the course of the 23 years since the death
penalty was reinstated, a dozen persons have been put to
death--but 13 have been cleared of capital murder charges
through DNA testing after having been sentenced to death.
This is a stunning and sobering fact. Unless Illinois is
vastly different from the rest of the United States, that
statistic ought to produce second thoughts for everyone. (One
of those second thoughts might be that for every innocent man
executed, a guilty man is still out there, unpunished.)
We do not suggest here that the United States should stop
punishing the guilty to the fullest extent of the law, even
if that means death. However, if this country is to have the
death penalty, we must be as certain as is humanly possible
that executions are restricted to the guilty. States should
be encouraged to make sure that is the case. Even if 66
percent of Americans support the death penalty, it is no
argument to say (as some conservatives have done) that the
death of an innocent person here or there is not enough to
reconsider what we are doing. This argument has been put
forward by the Rev. Jerry Falwell. Some have even argued that
this may be the price of the death penalty's deterrent
effect; Rep. Bill McCollum, Florida Republican, suggested as
much in an article for the Atlantic Monthly last year.
Perhaps the most cogent argument against the death penalty
is that it degrades the sensibilities of otherwise good and
reasonable men and women, who have come to believe in it so
obsessively that they would impose it on the innocent if that
is the only way to keep the death penalty in the law.
During a moratorium, the state would keep its electricity
and gas bills paid and its stockpiles of potassium chloride
intact against the day when the moratorium ends and
executions resume--presumably following improvements in the
way convictions are produced. Surely no one could reasonably
object to making sure we execute only the guilty.
____

[From the Washington Post, Apr. 6, 2000]

Innocent On Death Row

(By George F. Will)

``Don't you worry about it,'' said the Oklahoma prosecutor
to the defense attorney. ``We're gonna needle your client.
You know, lethal injection, the needle. We're going to needle
Robert.''
Oklahoma almost did. Robert Miller spent nine years on
death row, during six of which the state had DNA test results
proving his sperm was not that of the man who raped and
killed the 92-year-old woman. The prosecutor said the tests
only proved that another man had been with Miller during the
crime. Finally, the weight of scientific evidence, wielded by
an implacable defense attorney, got Miller released and
another man indicted.
You could fill a book with such hair-curling true stories
of blighted lives and justice traduced. Three authors have
filled one. It should change the argument about capital
punishment and other aspects of the criminal justice system.
Conservatives, especially, should draw this lesson from the
book: Capital punishment, like the rest of the criminal
justice system, is a government program, so skepticism is in
order.
Horror, too, is a reasonable response to what Barry Scheck,
Peter Neufeld and Jim Dwyer demonstrate in ``Actual
Innocence: Five Days to Execution and Other Dispatches From
the Wrongly Convicted.'' You will not soon read a more
frightening book. It is a catalog of appalling miscarriages
of justice, some of them nearly lethal. Their cumulative
weight compels the conclusion that many innocent people are
in prison, and some innocent people have been executed.
Scheck and Neufeld (both members of O.J. Simpson's ``dream
team'' of defense attorneys) founded the pro-bono Innocence
Project at the Benjamin N. Cardozo School of Law in New York
to aid persons who convincingly claim to have been wrongly
convicted. Dwyer, winner of two Pulitzer Prizes,

[[Page S4682]]

is a columnist for the New York Daily News. Their book is a
heartbreaking and infuriating compendium of stories of lives
ruined by:
Forensic fraud, such as that by the medical examiner who,
in one death report, included the weight of the gallbladder
and spleen of a man from whom both organs had been surgically
removed long ago.
Mistaken identifications by eyewitnesses or victims, which
contributed to 84 percent of the convictions overturned by
the Innocence Project's DNA exonerations.
Criminal investigations, especially of the most heinous
crimes, that become ``echo chambers'' in which, because of
the normal human craving for retribution, the perceptions of
prosecutors and jurors are shaped by what they want to be
true. (The authors cite evidence that most juries will
convict even when admissions have been repudiated by the
defendant and contradicted by physical evidence.)
The sinnister culture of jailhouse snitches, who earn
reduced sentences by fabricating ``admissions'' by fellow
inmates to unsolved crimes.
Incompetent defense representation, such as that by the
Kentucky attorney in a capital case who gave his business
address as Kelly's Keg tavern.
The list of ways the criminal justice system misfires could
be extended, but some numbers tell the most serious story: In
the 24 years since the resumption of executions under Supreme
Court guidelines, about 620 have occurred, but 87 condemned
persons--one for every seven executed--had their convictions
vacated by exonerating evidence. In eight of these cases, and
in many more exonerations not involving death row inmates,
the evidence was from DNA.
One inescapable inference from these numbers is that some
of the 620 persons executed were innocent. Which is why,
after the exoneration of 13 prisoners on Illinois' death row
since 1987, for reasons including exculpatory DNA evidence,
Gov. George Ryan, a Republican, has imposed a moratorium on
executions.
Scheck, Neufeld and Dwyer note that when a plane crashes,
an intensive investigation is undertaken to locate the cause
and prevent recurrences. Why is there no comparable urgency
about demonstrable, multiplying failures in the criminal
justice system? They recommend many reforms, especially
pertaining to the use of DNA and the prevention of forensic
incompetence and fraud. Sen. Patrick Leahy's Innocence
Protection Act would enable inmates to get DNA testing
pertinent to a conviction or death sentence, and ensure that
courts will hear resulting evidence.
The good news is that science can increasingly serve the
defense of innocence. But there is other news.
Two powerful arguments for capital punishment are that it
saves lives, if its deterrence effect is not vitiated by
sporadic implementation, and it heightens society's valuation
of life by expressing proportionate anger at the taking of
life. But that valuation is lowered by careless or corrupt
administration of capital punishment, which ``Actual
Innocence'' powerfully suggests is intolerably common.
____

[From the Washington Times, Apr. 25, 2000]

Death Edict For the Guilty Only

(By Bruce Fein)

Can reasonable people dispute that the government should
confine the death penalty to persons guilty of the crime
charged? And can reasonable people deny that the climbing
number of exonerations of death row inmates on the ground of
actual innocence creates chilling worries on that scores?
Those questions make both urgent and compelling enactment
of the cool-headed bill (S. 2071) by Sen. Patrick Leahy,
Vermont Democrat, to upgrade the reliability of verdicts in
capital cases.
Manifold reasons justify the death penalty (which the U.S.
Supreme Court has restricted to crimes of homicide):
retribution against offenders whose killings are earmarked by
shocking and barbaric wickedness, something akin to the Adolf
Eichmann example; to control prison inmates already laboring
under life sentences with no parole possibilities; to deter
the murder of police or crime witnesses in the hope of
escaping punishment of a lesser crime; and encouraging guilty
pleas contingent on cooperation with prosecutors in murder
conspiracy cases in exchange for a non-capital sentence.
Whether death sentences in general deter crime is hotly
disputed. but if they do, their effects would not even begin
to dent the crime problem.
A decent respect for life also demands scrupulous concern
for the reliability of verdicts in capital punishment trials.
Otherwise, the death penalty game is not worth the gamble of
executing the innocent--a shameful stain on any system of
Justice--and life sentences (perhaps in solitary confinement)
without parole should be the maximum.
The Leahy bill laudably aims to preserve the death penalty
by slashing the prevailing and highly worrisome risk of
executing the innocent through greater DNA testing and
competent defense counsel.
Unzip you ears to these facts. Since the Supreme Court in
1976 affirmed the constitutionality of the death penalty for
heinous and aggravated murders, 610 death sentences have been
implemented. Concurrently, 85 death row prisoners have been
released not for technical procedural flukes but because of
exculpatory evidence establishing their innocence. In other
words, for every seven executions approximately one capital
sentence has been levied on an innocent defendant.
Moreover, the detections of these grim injustices has been
more haphazard than systematic. The case Randall Dale Adams
and Antony Porter are emblematic.
The former was released after attracting the attention of
cinematic genius, Earl Morris. His gripping movie, ``The Thin
Blue Line,'' discredited the prosecution's case to a
nationally awakened audience.
Mr. Porter had lived with the Sword of Damocles for 16
years, and in 1998 his hourglass fell to 48 hours. He was
saved from wrongful execution by the plucky work of
Northwestern University undergraduate journalism students,
who proved Mr. Antony's innocence, a verdict that the
State of Illinois conceded.
Quirks and citizen altruism, however, are woefully
inadequate safeguards against executing the innocent. While
nothing in life is absolutely certain but death and taxes,
the Leahy bill would add two muscular measures to make the
truth-finding process in capital cases as reliable as is
reasonably feasible.
First, post-conviction DNA testing of biological material
would be available to an inmate through court order upon a
demonstration that the test could provide noncumulative
exculpatory evidence; that the material is actually or
constructively possessed by the government; and that no
previous DNA test had been conducted or that new DNA
techniques might reasonably yield more accurate and probative
evidence. Jurisdictions also would be directed to preserve
biological material gathered in the course of an
investigation during the period of the criminal's
incarceration for the purpose of possible DNA testing.
Of vastly greater importance to reliable death penalty
verdicts, however, is securing competent defense counsel in
lieu of incompetence or worse. The U.S. Supreme Court has
repeatedly celebrated the indispensability of reasonably
skilled lawyers to reliable verdicts. In the infamous
Scottsboro, Ala., criminal justice farce, Powell vs. Alabama
(1932), Justice George Sutherland, speaking for a unanimous
court, lectured: ``Left without the aid of counsel [the
accused] may be put on trial without a proper charge, and
convicted on incompetent evidence, or evidence irrelevant to
the issue or otherwise inadmissible. He lacks both the skill
and knowledge to prepare his defense, even though he has a
perfect one. He requires the guiding hand of counsel at every
step of the proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because he does
not know how to establish his innocence.''
Capital cases generally feature indigent defendants. And
their court-appointed lawyers are frequently deficient
because of austere rates of reimbursement or plain laziness.
For instance, the lawyer appointed to represent Ronald
Keith Williamson was uncurious about the fact that another
had confessed to the crime. He neglected to raise the
exculpatory confession at trial, Williamson was convicted,
and was later proven innocent through DNA testing after a
1997 federal appeals court decision overturned the trial
verdict because of inert or anemic lawyering.
The Leahy legislation would end this blight in death
penalty prosecutions by instructing the director of the
Administrative Office of the United States Courts to creating
a scheme for credentialing attorneys and providing reasonable
pay in capital prosecutions against indigent defendants.
Aren't executions too definitive to be left to chancy
discoveries of innocence? If the government does not want to
pay the price of turning square corners in capital cases,
shouldn't the prosecution accept a lesser maximum punishment?
____

[From the Washington Post, Feb. 28, 2000]

Innocent on Death Row

Sen. Patrick Leahy (D-Vt.) has introduced a bill that seeks
to strengthen safeguards against wrongful executions. Those
who support capital punishment should be as determined as its
opponents to ensure that innocent people are not executed. By
that logic, this legislation should enjoy wide support.
The bill would require both state and federal courts to
permit post-conviction DNA testing in cases in which there is
a significant question of innocence. It also would encourage
states to retain biological evidence, thereby ensuring that
there is a material to test when innocence questions arise.
Perhaps more important, the bill would make federal criminal
justice funds to the states contingent on their improving
legal representation for the accused in all stages of death-
penalty litigation.
This is a critical reform, as the absence of competent
counsel is a pervasive theme in wrongful convictions. The
bill would raise the insultingly low limit for damages
against the federal government--$5,000 per year in jail--for
those wrongly convicted of federal crimes. And it would
encourage states to offer reasonable compensation as well.
These are common-sense improvements to the basic
infrastructure of the death penalty. For those who favor the
abolition of capital punishment, they may seem inadequate.
But by focusing only on protecting the innocent--not on a
broader agenda of halting all executions--Mr. Leahy places
the spotlight on what should be bedrock principle for all

[[Page S4683]]

who believe in due process. To support these reforms, one
need only believe that people accused of capital crimes
should have reasonably able counsel and that--when
substantial questions arise about the rightness of their
convictions--they should have the ability to prove their
innocence.
____

[From the New York Times, Feb. 19, 2000]

New Looks at the Death Penalty

America is at last beginning to grapple honestly with the
profound flaws of the death penalty system. Late last month
Gov. George Ryan of Illinois, a Republican, became the first
governor in a death penalty state to declare a moratorium on
executions, citing well-founded concerns about his state's
``shameful record of convicting innocent people and putting
them on death row.'' That has now been followed by moves in
Congress and the executive branch to review death penalty
policies from a national perspective.
Senator Russell Feingold of Wisconsin has urged President
Clinton to suspend all federal executions pending a review of
death penalty procedures similar to the one Governor Ryan has
initiated in Illinois. Problems of inadequate legal
representation, lack of access to DNA testing, police
misconduct, racial bias and even simple errors are not unique
to Illinois, Mr. Feingold noted.
The Justice Department has also initiated its own review to
determine whether the federal death penalty system unfairly
discriminates against racial minorities. At his news
conference this week, Mr. Clinton praised the death penalty
moratorium in Illinois, but indicated he thought a federal
moratorium was unnecessary. Mr. Feingold has urged him to
reconsider. Given his lame-duck status, the president can
afford to call a halt without worrying about being falsely
labeled soft on crime. Moreover, the fact that a Republican
governor was first to announce a moratorium should minimize
any concern about Vice President Al Gore being so labeled.
Congress need not wait for the administration to act. Last
week Senator Patrick Leahy, Democrat of Vermont, introduced
legislation to address ``the growing national crisis'' in how
capital punishment is administered. This promising measure,
the Innocence Protection Act of 2000, stops short of
abolishing the death penalty, the course we hope the nation
will eventually follow. But key provisions would lessen the
chance of unfairness and deadly error by making DNA testing
available to both state and federal inmates, and by setting
national standards to ensure that competent lawyers are
appointed for capital defendants.
Without such protections, there is a grave possibility of
judicial error. Nationally, 612 people have been executed
since the Supreme Court reinstated capital punishment in
1976. During the same period, 81 people in 21 states have
been found innocent and released from death row--some within
hours of being executed. That suggests that many who were
executed might also have been innocent.
Neither the states nor the courts are providing adequate
protection against awful miscarriages of justice. In Texas,
the nation's leader in executions, courts have upheld death
sentences in cases where defense lawyers slept during big
portions of the trial. Lately, Congress and the Supreme Court
have exacerbated the danger of mistaken executions by
curtailing appeal and habeas corpus rights. They have also
ignored the festering problem of inadequate legal
representation that caused the American Bar Association to
call for a death penalty moratorium three years ago. Even
death penalty supporters have to be troubled by a system
shown to have a high risk of executing the innocent.
____

[From the Washington Post, Mar. 20, 2000]

On Virginia's Death Row

Derek Barnabei evokes no sympathy. He is on death row in
Virginia for the rape and murder of his girlfriend, Sarah
Wisnosky, in 1993. The evidence of his guilt seems strong.
But that strong probability of guilt makes Virginia's
unwillingness to permit DNA testing of potentially key
evidence all the more puzzling. Mr. Barnabei has maintained
his innocence, and the case has a few troubling aspects. In
light of this, it only makes sense to test bloodstained
physical evidence retained but never tested by investigators.
Yet Virginia balks on the grounds that Mr. Barnabei's guilt
is so clear.
The likelihood is that the blood is Ms. Wisnosky's, which
would neither bolster nor undermine the jury's verdict in the
case. It also could be Mr. Barnabei's, which would reinforce
the integrity of the verdict. But the presence of someone
else's blood would make Mr. Barnabei's claims more credible.
It is hard to see why a state, before putting someone to
death, would be unwilling to demonstrate a jury verdict's
consistency with all of the evidence. Indeed, this is
precisely the type of case in which the state should have no
choice. Under a bill being pushed by Sen. Patrick Leahy (D-
Vt.), states would be obligated in such circumstances to
allow post-conviction DNA testing. Such a law would not
merely offer a lawyer of protection to innocent people but
would increase public confidence in the convictions of guilty
people.<bullet>

Mr. SMITH of Oregon. Mr. President, I am a supporter of the death
penalty. I believe there are some times when humankind can act in a
manner so odious so heinous, and so depraved that the right to life is
forfeited. Notwithstanding this belief--indeed, because of this
belief--I rise today to talk about the importance of protecting
innocent people in this country from wrongful imprisonment and
execution. Today, Senator Leahy and I are introducing the Innocence
Protection Act of 2000 that will use the technological advances of the
21st century to ensure that justice is served swiftly and fairly.
It has been difficult to open a newspaper in recent months without
finding discussion of the death penalty and possible miscarriages of
justice. You have almost certainly seen or heard reports of inmates
being freed from death row based on results of new genetic tests that
were unavailable at the time of trial. There have been a number of
cases where this has, in fact, occurred.
This is a cause for concern for a number of cases. First and
foremost, of course, is the possibility that an innocent person could
lose his or her life if wrongfully convicted. In such cases, this also
leads to the double tragedy that the true guilty party remains free to
roam the country in search of future victims. Clearly, capturing and
convicting the true perpetrator of a crime is in everyone's best
interests.
The Innocence Protection Act of 2000 would provide a national
standard for post-conviction DNA testing of inmates who believe they
have been wrongly incarcerated. Although many inmates were convicted
before modern methods of genetic fingerprinting were available, not all
states routinely allow post-conviction DNA testing.
This does not make sense. If we are to have a system that is just,
transparent, and defensible, we must make absolutely certain that every
person who is behind bars deserves to be there. One of the best ways to
do this is to make the most advanced technology available for cases in
which physical evidence could have an influence on the verdict.
Making DNA testing available will result in some convictions being
overturned. In such cases, people who have been unjustly incarcerated
must be afforded fair compensation for the lost years of their lives.
The Leahy-Smith Innocence Protection Act of 2000 has a provision that
would do this. Sometimes a person who has been wrongly imprisoned is
released from prison with bus fare and the clothes on his or her back.
This practice simply heaps one wrong upon another.
While officers of America's courts and law enforcement work extremely
hard to ensure that the true perpetrators of heinous crimes are caught
and convicted, there have been instances where defendants have been
represented by overworked, underpaid, or even unqualified counsel, and
this situation cannot be tolerated in a system of criminal justice. The
Leahy-Smith Innocence Protection Act of 2000 would ensure that
defendants who are put on trial for their lives receive competent legal
representation at every stage in their cases.
The Innocence Protection Act of 2000 will allow us, as a nation, to
continue our confidence in the American judicial system and in the fair
and just application of the death penalty. We must have confidence in
the integrity of justice, that it will both protect the innocent and
punish the guilty. This legislation will not prevent true criminals
from being executed; rather, it will increase support for the death
penalty by providing added assurances that American justice is
administered fairly across the country.
Therefore, I urge my colleagues on both sides of the aisle, whether
you support or oppose capital punishment, to join Senator Leahy and me
in backing the Innocence Protection Act of 2000, which will put the
fingerprint of the 21st century on our criminal justice system,
ensuring that innocent lives are not unjustly taken in this country.
Ms. COLLINS Mr. President, I am pleased to join as a cosponsor of the
``Innocence Protection Act.''
Since the reinstatement of capital punishment in 1976, 610 people
have been executed in our nation. In that same period of time, an
astounding 87 people who were sentenced to die have been found innocent
and released from death row. Each of these individuals has lived the
Kafkaesque nightmare of condemnation and imprisonment for crimes they
have not committed. It is

[[Page S4684]]

difficult to imagine the despair and betrayal these individuals must
have felt as they were accused, tried, convicted and sentenced, all the
time knowing they were not guilty. And during all those years they
remained in prison, the real perpetrators remained at large.
I am an opponent of the death penalty, and I am proud to be from the
State of Maine which outlawed the death penalty in 1887. The
legislation we introduce today is, however, not an anti-death penalty
measure.
The legislation we introduce today simply requires logical safeguards
to be put in place to prevent wrongful convictions. Its two most
important provisions compel DNA testing where it can yield evidence of
innocence, and puts in place a new process to ensure defendants receive
competent counsel in death penalty cases.
The ``Innocence Protection Act'' calls on the federal government and
the states to make DNA testing available in circumstances where it
could yield new evidence of innocence. The incidents in which DNA
testing has exonerated individuals are not isolated--64 people have
been released from prison or death row due to DNA testing.
Linus Pauling once said that ``science is the search for truth.''
Through DNA testing, science provides a tool that can uncover the
truth, and lend certainty to our moral obligation in a civilized
society--proper administration of our criminal justice system.
The legislation we introduce today assists the wrongfully convicted,
and will help prevent the miscarriages of justices that have seemed
sadly common. It will also serve the interests of justice and protect
crime victims. Justice is never served until the true perpetrator of a
crime is identified, convicted and punished. We owe it to the victims
and their families to pursue every avenue to find and hold accountable
the true criminals who have injured them.
Our American ideals and sense of justice simply cannot tolerate the
current risk for mistaken executions. The case of Mr. Anthony Porter
should shock the conscience of America. Mr. Porter spent over 16 years
on death row, and at one point he was only two days short of receiving
a lethal injection, having been convicted of two murders. A determined
group of journalism students investigated his case and uncovered
evidence that exonerated Mr. Porter. It was only through their efforts
that the identity of the real murderer was determined, a review of the
case compelled, and Mr. Porter ultimately freed. The peculiar good
fortune that lead to the release of Mr. Porter undeniably highlights a
weakness in our system of justice that cries out for remedy.
Nothing that we can do here today can restore those years to Mr.
Porter, or others who have been wrongly convicted, but we can demand
safeguards be put in place to protect the innocent from conviction, and
protect society from real criminals who may remain loose on our
streets. Regardless of one's views about the death penalty, I hope we
all can agree to needed safeguards to help ensure that justice is
served.
Thank you, Mr. President, I yield the floor.
<bullet> Mr. FEINGOLD. Mr. President, I am extremely pleased to join my
distinguished colleague from Vermont and ranking member of the
Judiciary Committee, Senator Leahy, as a cosponsor of the Innocence
Protection Act of 2000. I commend him for his leadership on this
important legislation. The insight and unique experience that he brings
to this issue as a former federal prosecutor is invaluable. I have no
doubt that because of his leadership and diligence, Americans have
recently become more aware of the important role that the certainty of
science can have in our criminal justice system. Improvements in DNA
testing have allowed us to determine with greater accuracy whether
certain offenders committed the crime that sent them to prison,
including, very importantly, of course, those who have been condemned
to death row.
Since the 1970s, 87 people sentenced to die were later proven
innocent. Some of those innocent death row inmates were able to prove
their innocence based on modern DNA testing of biological evidence.
But, Mr. President, this is not just about ensuring that we not condemn
the innocent. DNA testing can also ensure that the guilty person not go
free. DNA testing can be a tool for the prosecution to determine
whether they have the right person.
Over the last several months, I have spoken often on the floor about
the serious flaws in the administration of capital punishment across
the nation. I strongly support Senator Leahy's bill. It is a much over-
due package of reforms that goes after some of the worst failings in
our nation's administration of capital punishment--those that are
unfair, unjust and plain just un-American.
Very simply, Senator Leahy's bill can help save lives. His bill would
make it less likely for an innocent man or woman to be sent to death
row, where biological evidence is central to the issue of guilt or
innocence. The bill also would make it more likely that a poor person
receive adequate defense representation and less likely that a poor
person gets stuck with a lawyer that sleeps through trial. Yesterday, I
spoke on the floor about specific examples of such cases of egregious
failings of defense counsel.
We must ensure the utmost fairness in the administration of this
ultimate punishment. I hope our colleagues--both those who support the
death penalty in principle and those who oppose it--will join together
in fixing this broken system and restoring fairness and justice. All
Americans demand and deserve no less.
Mr. President, I think it is very significant that this important
bill now has bipartisan support. I want to thank and commend my
colleagues, Senators Gordon Smith, Susan Collins and James Jeffords,
for recognizing that flaws exist in our system of justice and
acknowledging that something has to be done about it. I hope this is a
sign that we can work together with the very real goal of passing this
bill this year. Until we do so, the lives of innocent people literally
hang in the balance.<bullet>
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