[Congressional Record Volume 150, Number 134 (Friday, November 19, 2004)]
[Senate]
[Pages S11609-S11614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUSTICE FOR ALL ACT
Mr. LEAHY. Mr. President, last month, the House and Senate
overwhelmingly approved H.R. 5107, the Justice for All Act of 2004.
This important criminal justice package includes the Innocence
Protection Act, a modest and practical set of reforms aimed at reducing
the risk of error in capital cases. I first introduced the IPA in
February 2000, and as time passed, the bipartisan coalition in support
of this pioneering bill grew. Capping these years of effort, the
President has now signed the bill into law.
As enacted, the Innocence Protection Act contains several key
reforms. First, it ensures access to post-conviction DNA testing for
those serving time in prison or on death row for crimes they did not
commit. Second, it establishes a grant program to help defray the costs
of post-conviction DNA testing. This program is named in honor of Kirk
Bloodsworth, the first death row inmate exonerated as a result of DNA
testing. Third, the IPA establishes rules for preserving biological
evidence secured in the investigation or prosecution of a Federal
offense. Fourth, it authorizes grants to States to improve the quality
of legal representation in capital cases. Finally, it substantially
increases the maximum compensation that may be awarded in Federal cases
of wrongful conviction.
Three weeks before the Senate approved H.R. 5107, the Senate
Judiciary Committee wrapped up weeks of work on the Senate version of
the bill, S. 1700, the Advancing Justice Through DNA Technology Act of
2003. The Committee voted to approve S. 1700 by a bipartisan vote of 11
to 7, but given time constraints and continuing negotiations, the
Committee did not issue a report. Nor was there a conference report on
the final legislation, as the Senate's acceptance of H.R. 5107 in
substantially the form that it passed the House made a House-Senate
conference unnecessary.
The upshot of all of this is that there is a substantial gap in the
legislative history of this landmark legislation. As the principal
author of the Innocence Protection Act, I offer the following remarks
to fill that gap and guide those who will be implementing and enforcing
these important provisions in the future.
I introduced S. 1700 on October 1, 2003, together with the Chairman
of the Judiciary Committee, Senator Orrin Hatch, and 16 additional co-
sponsors. On the same day, the Chairman of the House Judiciary
Committee, Representative James Sensenbrenner, and 99 cosponsors
introduced an identical measure, H.R. 3214.
The bill moved swiftly through the House. On October 16, 2003, the
House Judiciary Committee reported an amended version of the bill by a
vote of 28 to 1. The few changes to the bill were largely technical,
clarifying, or stylistic in nature, and are described in the report
accompanying the bill to the
[[Page S11610]]
full House. None of these changes affected title III of the bill, which
contained the Innocence Protection Act. On November 5, 2003, the House
passed a further amended version of the bill by a vote of 357 to 67.
This version did include a significant change to the counsel provisions
in title III, which I will address shortly.
In the Senate, the bill progressed more slowly. The Senate Judiciary
Committee met in executive session on three occasions to consider S.
1700. At the first of these meetings, on July 22, 2004, the committee
adopted an amendment in the nature of a substitute which replaced the
text of S. 1700 with a modified version of H.R. 3214, as passed by the
House.
The committee continued its mark-up of S. 1700 on September 9, 2004.
The only amendment offered during this session sought to expand on a
title I provision regarding the national DNA database, and did not
affect any provision of the Innocence Protection Act. The committee
rejected this amendment after lengthy debate and then adjourned.
The committee completed its consideration of S. 1700 on September 21,
2004. During this session, the committee rejected a total 21
amendments, 17 of which pertained to the Innocence Protection Act.
Senator Cornyn offered two of the IPA-related amendments. The first
proposed to replace the text of S. 1700 with that of S. 1828--a pared
down version of S. 1700 that stripped out the Innocence Protection Act
in its entirety. The second Cornyn amendment proposed to strike an
entire subtitle of S. 1700 dealing with competent counsel and
substituting a different program that failed to require any
accountability on the part of States accepting Federal money. The
committee rejected both of these amendments by votes of 7 to 11.
Senator Kyl offered nine amendments to the IPA provisions regarding
post-conviction DNA testing. Six of the amendments sought to restrict
access to post-conviction DNA testing in the Federal system, as by
requiring that any motions for such testing be filed within 5 years of
the bill's enactment. One amendment proposed to raise the standard for
obtaining a new Federal trial based on exculpatory DNA evidence--
instead of proving that a new trial would probably result in an
acquittal, a defendant would be put to the virtually impossible burden
of proving that he did not commit the offense. Two of the amendments
would have reduced the incentive for States to adopt post-conviction
DNA testing procedures comparable to the Federal procedures. The
committee rejected all nine amendments by a vote of 7 to 10 or 7 to 11.
The other six IPA amendments, also offered by Senator Kyl, pertained
to the IPA's requirement that Federal authorities preserve any
biological evidence secured in the investigation or prosecution of a
Federal offense for as long as a defendant remained incarcerated for
that offense, subject to a number of practical and straightforward
exceptions. All six amendments would have relaxed this requirement to
some degree, allowing for the premature destruction of biological
evidence that could clear the innocent and identify the guilty. The
committee rejected all six amendments, most by a vote of 7 to 11.
Having voted down all amendments to the substitute amendment, the
committee approved the bill by a final vote of 11 to 7. Those voting in
the affirmative were myself, Chairman Hatch, and Senators Specter,
DeWine, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Those voting in the negative were Senators Grassley, Kyl, Sessions,
Graham, Craig, Chambliss, and Cornyn.
The committee vote on September 21, 2004, was the last action taken
on S. 1700. As I discussed in a floor statement on October 7, 2004, no
sooner had the bill been reported favorably to the full Senate than it
was blocked by the same Senators who had held it up in Committee,
buttressed by opposition from President Bush and Attorney General John
Ashcroft. As a result, the full Senate was never afforded an
opportunity to consider S. 1700 as a free-standing bill.
With time running out before the congressional adjournment, the House
acted again. On September 22, 2004, the House Judiciary Committee
approved the text of S. 1700 as part of H.R. 5107, a larger criminal
justice package known as the Justice For All Act of 2004. There
followed several weeks of intense negotiations involving House and
Senate sponsors of the legislation, the handful of hold-out Senators,
and the Department of Justice. While no agreement was reached, and the
Department continued to oppose the bill, the House made a number of
changes to the legislation to address concerns that had been raised. On
October 6, 2004, the House passed a modified version of H.R. 5107 by a
vote of 393 to 14 and sent it to the Senate. The Senate passed the bill
three days later by voice vote, the House made a number of enrollment
corrections the same day, and on October 30, 2004, President Bush
signed the bill into law.
The Justice For All Act of 2004 enhances protections for victims of
Federal crimes, increases Federal resources available to State and
local governments to combat crimes with DNA technology, and provides
safeguards to prevent wrongful convictions and executions.
Title I of the bill is the Scott Campbell, Stephanie Roper, Wendy
Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act. The
provisions of this title establish enhanced and enforceable rights for
crime victims in the Federal criminal justice system, and authorize
grants to help States implement and enforce their own victims' rights
laws.
Titles II and III of the bill establish the Debbie Smith DNA Backlog
Grant Program, which authorizes $755 million over five years to address
the DNA backlog crisis in the nation's crime labs, and also creates
other new grant programs to reduce forensic science backlogs, train
criminal justice and medical personnel in the use of DNA evidence, and
promote the use of DNA technology to identify missing persons.
Title IV of the bill, the Innocence Protection Act, increases access
to post-conviction DNA testing that may prove innocence; establishes
the Kirk Bloodsworth program to help defray the cost of post-conviction
DNA testing; sets rules for preserving biological evidence secured in
Federal criminal cases; authorizes grants to improve the quality of
legal representation in State capital cases; and increases compensation
in Federal cases of wrongful conviction.
The Innocence Protection Act reflects years of work and intense
negotiation. I will now discuss its key provisions in greater detail.
Subtitle A of title IV enacts a new chapter in the Federal Criminal
Code dealing with DNA testing. In little over a decade, some 153 people
across the country have been exonerated by this remarkable technology.
That number includes more than a dozen individuals who had been
sentenced to death, some of whom came within days of being executed.
Post-conviction DNA testing does not merely exonerate the innocent it
can also solve crimes and lead to the incarceration of very dangerous
criminals. In case after case, DNA testing that exculpates a wrongfully
convicted individual also inculpates the real criminal. Just this year,
for example, the exoneration of Arthur Lee Whitfield in Virginia led to
the identification of another inmate, already serving a life sentence,
as the true perpetrator of two rapes for which Whitfield had served 22
years in prison. Last year, DNA evidence in the case of Kirk
Bloodsworth was matched to another man, a convicted sex offender who
has now pleaded guilty to the horrendous rape-murder that sent Mr.
Bloodsworth to Maryland's death row.
There are still numerous prisoners throughout the country whose
trials preceded modern DNA testing, or who did not receive pretrial
testing for other reasons. If history is any guide, some of these
individuals are innocent of any crime.
The new chapter 228A of title 18 is designed to ensure that Federal
prisoners with real claims of innocence can get DNA testing of evidence
that could support such claims. It does this by establishing rules for
when a court shall order post-conviction DNA testing--to be codified at
18 U.S.C. Sec. 3600--and rules for when the government may dispose of
biological evidence--to be codified at 18 U.S.C. Sec. 3600A.
Under section 3600, a court shall order DNA testing if it may produce
[[Page S11611]]
new material evidence that would raise a reasonable probability that
the applicant did not commit the offense. This standard was the subject
of intense negotiations, as members recognized that setting the
standard too low could invite frivolous applications, while setting it
too high could defeat the purpose of the legislation and result in
grave injustice. I argued that in balancing these concerns, Congress
should be guided by the principle that the criminal justice system
should err on the side of permitting testing, in light of the low cost
of DNA testing and the high cost of keeping the wrong person locked up.
I am pleased that this view ultimately prevailed.
During the final round of negotiations on H.R. 5107--after the House
Judiciary Committee reported the bill, and before final passage by the
full House--the standard for ordering a DNA test was modified in two
respects. First, as introduced in both the House and the Senate,
section 3600(a)(8) appeared to impose on applicants the virtually
impossible burden of showing that a DNA test ``would'' produce new
material evidence of innocence. Under section 3600(a)(8) as enacted,
applicants need only show that a test ``may'' produce such evidence.
Second, the same provision was stripped of unnecessary language to
the effect that courts must ``assume the DNA test result excludes the
applicant'' when considering whether DNA testing would raise a
reasonable probability that the applicant did not commit the offense.
Such an assumption is already implicit, since a court could not
reasonably assess the probability that a convicted offender was wrongly
convicted without weighing some new evidence of innocence, such as a
DNA exclusion. With or without the assumption language, the question
for a court boils down to this: Would a DNA exclusion make it more
likely than not that the applicant was innocent? If so, the court
should order DNA testing, provided that the various technical
requirements set forth in section 3600(a) are met.
These requirements are simply stated. First, the applicant must
assert his or her innocence under penalty of perjury. Second, the
evidence to be tested must have been secured in relation to the
investigation or prosecution of the offense. Third, the evidence must
not have been previously subjected to DNA testing or, if it was, the
applicant must be requesting DNA testing using a new method or
technology that is substantially more probative than the prior DNA
testing. If the evidence was not previously tested, the applicant must
also show that he did not waive the right to request DNA testing of
that evidence in a court proceeding after the date of enactment of the
IPA, or knowingly fail to request DNA testing of that evidence in a
prior motion for post-conviction DNA testing. A waiver of the right to
request DNA testing must be knowing and voluntary, and will ideally be
made on the record and inquired into by the court before it is
accepted.
Fourth, the evidence to be tested must be in the possession of the
Government, subject to a chain of custody, and retained under
conditions sufficient to ensure that it was not substituted,
contaminated, tampered with, replaced, or altered in any material
respect. Fifth, the proposed DNA testing must be reasonable in scope,
use scientifically sound methods, and be consistent with accepted
forensic practices. Sixth, the applicant must identify a theory of
defense that is not inconsistent with an affirmative defense presented
at trial, and that would establish the applicant's innocence. Seventh,
the applicant must certify that he will provide a DNA sample for
purposes of comparison.
Eighth, if the applicant was convicted following a trial, the
identity of the perpetrator must have been at issue in the trial. If
the applicant was convicted following a guilty plea, this requirement
does not apply. Congress rightly rejected the Justice Department's
position that inmates who pleaded guilty should be ineligible for DNA
testing in light of the many documented cases in which defendants
pleaded guilty to crimes they did not commit. Indeed, the Senate
Judiciary Committee report in the 107th Congress on the Innocence
Protection Act of 2002 describes four cases in which defendants pleaded
guilty to crimes they did not commit and were later exonerated by DNA
tests.
The final requirement established by section 3600 is that motions for
post-conviction DNA testing be made ``in a timely fashion.'' Motions
are entitled to a rebuttable presumption of timeliness if filed within
five years of enactment of the IPA, or three years after the
applicant's conviction, whichever is later. Thereafter, it is presumed
that a motion is untimely, except upon good cause shown. As I explained
in an earlier floor statement, the Justice Department has complained
that the ``good cause'' exception is so broad you could drive a truck
through it, and its stubborn opposition to the IPA turned in large part
on the inclusion of this language. But while I agree that the language
is broad, it is intentionally so; I would not agree to a presumption of
untimeliness that could not be rebutted in most cases. At the same
time, this provision should allow courts to deal summarily with the
Department's hypothetical bogeyman--the guilty prisoner who ``games the
system'' by waiting until the witnesses against him are dead and
retrial is no longer possible, and only then seeking DNA testing.
As may be apparent from the awkwardness of the legislative language,
the rebuttable presumption language in section 3600 was a late and
hastily-drafted addition to the legislation. It replaced a relatively
generic requirement that motions be filed for the purpose of
demonstrating innocence, and not to delay the execution of the sentence
of the administration of justice. The intention was to provide courts
with more specific guidance on how to weed out frivolous motions.
Significantly, this provision is far from the rigid three-year time
limit urged by the Justice Department. In rejecting a time limit,
Congress recognized that the need for a DNA testing law is not
temporary. That need will likely diminish over time as pre-trial DNA
testing becomes more prevalent, but there will always be cases that
fall through the cracks due to a defense lawyer's incompetence, a
defendant's mental illness or mental retardation, or other reasons that
we in Congress cannot and should not attempt to anticipate. Many of the
individuals who have been exonerated by post-conviction DNA testing did
not win freedom until many years after they were convicted and could
still be in prison, or executed, if an arbitrary limitations period had
been applied to their requests for DNA testing.
In addition to the requirements I have just described, section 3600
provides additional disincentives to filing false claims or trying to
``game the system''. Test results must be disclosed simultaneously to
the applicant and the government. DNA submitted by the applicant will
be run through the national DNA database, which could conceivably
produce a match linking the applicant to an unsolved crime. Penalties
are established in the event that testing inculpates the applicant.
Further, because an applicant's assertion of innocence must be made
under penalty of perjury, an applicant may be subject to prosecution
for perjury, as well as for making a false statement, if his assertion
is later disproved. If convicted, the applicant is subject to a 3-year
prison sentence, which shall run consecutively to any other term of
imprisonment he is serving.
Section 3600 also establishes procedures to be followed when DNA
testing exculpates the applicant. A court shall grant relief if the
test results, when considered with all the other evidence in the case,
establish by compelling evidence that a new trial would result in an
acquittal. The ``compelling evidence'' standard was another late
addition; earlier versions of the IPA set the applicant's burden at ``a
preponderance of the evidence.'' The point of the change, which I
proposed, was to require courts to focus on the quality of the evidence
supporting an applicant's new trial motion rather than trying to
calculate the odds of a different verdict.
In setting the new trial standard in section 3600, Congress rejected
the Justice Department's proposal, under which an applicant would have
to prove, by clear and convincing evidence, that he did not commit the
crime. That standard is substantially more demanding than the standard
established for second or successive motions filed under 28 U.S.C.
Sec. 2255 based
[[Page S11612]]
on newly discovered evidence--a remedy that is already open to Federal
inmates with new evidence of a DNA exclusion. It would have made no
sense for Congress to establish a more demanding new trial standard for
cases involving a new DNA test result than for other cases involving
newly discovered evidence. To the contrary, because DNA testing
conducted years and even decades after a conviction can provide a more
reliable basis for establishing a correct verdict than any evidence
proffered at the original trial, the standard should be and has
appropriately been set a notch lower. This is consistent with Congress'
decision, in section 204 of the Justice For All Act, to toll the
statute of limitations in cases involving DNA evidence; both provisions
recognize the unique ability of DNA testing to produce scientifically
precise and highly probative evidence long after a crime has been
committed.
Let me turn now to the new evidence-retention rules enacted by the
IPA. As a general matter, section 3600A requires the preservation of
all biological evidence secured in relation to a Federal criminal case
for as long as any person remains incarcerated in connection with that
case. But biological evidence may be destroyed--assuming that no other
law requires its preservation--under certain limited circumstances,
including, first, if a previous motion by the defendant for testing
pursuant to section 3600 was denied and no appeal is pending; second,
if the defendant knowingly and voluntarily waived the right to request
DNA testing of the evidence in a court proceeding conducted after the
date of enactment of the IPA; and third, if the evidence has already
been tested pursuant to section 3600 and the results included the
defendant as the source. If the evidence is unusually large or bulky,
or if it must be returned to its rightful owner, the government may
remove and retain representative portions of the evidence sufficient to
preserve the defendant's rights under section 3600.
Biological evidence may also be destroyed if the government notifies
everyone who remains incarcerated in the case that the evidence may be
destroyed and no one requests DNA testing within 180 days of receiving
such notice. It bears emphasis that this is a limited exception to the
general rule favoring preservation of biological evidence. It is not
anticipated, nor is it anyone's intention, that prosecutors simply hand
out standardized notices pursuant to section 3600A every time a
defendant is convicted. Indeed, one of the final changes made to H.R.
5107 clarified that the defendant's conviction must be final, and the
defendant must have exhausted all opportunities for direct review of
the conviction, before a section 3600A notice may be served. Even then,
the better practice would be for the government to wait a number of
years, until the destruction of the evidence is truly imminent, before
providing notice.
In this regard, it should be noted that section 3600A does not
preempt or supersede any law that may require evidence, including
biological evidence, to be preserved. Thus, if another law requires
evidence to be retained for 10 years after conviction, the government
should wait at least that long before notifying the defendant that the
evidence may be destroyed.
If the notice exception becomes the rule--if notices are routinely
served as soon as convictions become final, and evidence is routinely
destroyed six months later--Congress will need to revisit section
3600A. Having rejected any time limit on motions for post-conviction
DNA testing, Congress should not allow the government to impose a de
facto time limit of six months by rushing to destroy any evidence that
could be the subject of a motion for post-conviction DNA testing. In
implementing section 3600A, the government should never lose sight of
its intended purpose, which is to ensure that biological evidence is
available to permit future DNA testing that may help clear the innocent
and catch the guilty.
The provisions I have discussed to this point will be codified in the
Federal Criminal Code and will have direct application to Federal cases
and Federal defendants only. Earlier versions of the IPA recognized a
constitutional right of State prisoners to access biological evidence
held by the State for the purpose of DNA testing; as enacted, however,
the IPA contains no such provision. This is regrettable. As Fourth
Circuit Judge Michael Luttig concluded in a 2002 opinion, ``A right of
access to evidence for tests which could prove beyond any doubt that
the individual in fact did not commit the crime, is constitutionally
required as a matter of basic fairness.'' An inmate's interest in
pursuing his freedom--and possibly saving his life--is surely
sufficient to outweigh any governmental interest in withholding access
to potentially exculpatory evidence.
While taking no position on the constitutional question addressed by
Judge Luttig, the IPA does encourage States that have not already done
so to enact provisions similar to sections 3600 and 3600A. It does this
in section 413 of subtitle A of title IV, by reserving the total amount
of funds appropriated to carry out certain grant programs authorized in
the Act for States that have adopted reasonable procedures for
providing post-conviction DNA testing and preserving biological
evidence.
It is never easy to attach strings to money that our States so
desperately need, but it is necessary in this instance. Ten years after
New York passed the nation's first post-conviction DNA testing statute,
many States have yet to establish a right to post-conviction DNA
testing, and others have erected unjustifiably high procedural hurdles
to testing. For example, some States provide for post-conviction DNA
testing only if the inmate is under sentence of death, and some rely on
arbitrary and unnecessary time limits. To quote New York Attorney
General Eliot Spitzer, who testified in support of the Innocence
Protection Act in June 2000, ``DNA testing is too important to allow
some States to offer no remedy to those incarcerated who may be
innocent of the crimes for which they were convicted.''
The IPA affords States that accept the conditioned Federal funding
some flexibility in crafting their DNA laws. State procedures for
providing post-conviction DNA testing and preserving biological
evidence need only be ``comparable,'' not identical, to the Federal
procedures in sections 3600 and 3600A. This means that the procedures
adopted by a State must, at a minimum, incorporate the core elements of
the Federal procedures. For example, a State post-conviction DNA
statute that covers only death row inmates and not inmates serving
terms of incarceration would not be comparable to the Federal
procedures. Similarly, a State statute that included a time limit or
any other provision that would systematically deny testing to whole
categories of prisoners who would receive testing under the Federal
procedures would not be comparable to those procedures and, so, would
not satisfy the Act.
When I first introduced the Innocence Protection Act in February
2000, only a handful of States had enacted post-conviction DNA testing
laws. Today, a sizeable majority of States have enacted such laws,
although as I already noted, the scope of these laws varies
considerably. States that have already established a meaningful right
to post-conviction DNA testing and reasonable rules for preserving
biological evidence should not be required to change their laws as a
condition of receiving Federal funds, and the IPA does not require
this. Section 413 includes a ``grandfather clause'' that should cover
many of the States that enacted DNA laws before enactment of the IPA,
making them immediately eligible for the conditioned grant money. Not
every State DNA law meets the terms of the grandfather clause, however,
and the Justice Department should take great care in scrutinizing the
laws of any State claiming its protection.
Post-conviction DNA testing is an essential safeguard that can save
innocent lives when the trial process has failed to uncover the truth.
But it would be neither just nor sensible to enact a law that merely
expanded access to DNA testing. It would not be just because innocent
people should not have to wait for years after trial to be exonerated
and freed. It would not be sensible because society should not have to
wait for years to know the truth. When innocent people are convicted
and the guilty are permitted to walk free, any meaningful reform effort
must consider the root causes of these wrongful convictions and take
steps to address them. That is why subtitle B of title IV addresses
what all
[[Page S11613]]
the statistics and evidence show is the single most frequent cause of
wrongful convictions inadequate defense representation at trial.
Subtitle B was enacted against the backdrop of a shameful record of
failure by many States to provide competent lawyers to indigent
defendants facing the death penalty. Testimony in both the Senate and
House Judiciary Committees revealed that of the 38 States that
authorize capital punishment, very few have established effective
statewide systems for identifying, appointing and compensating
competent lawyers in capital cases.
Too often individuals facing the ultimate punishment are represented
by lawyers who are drunk, sleeping, soon-to-be disbarred or just plain
ineffective. Even the best lawyers in these systems are hampered by
inadequate compensation and insufficient resources to investigate and
develop a meaningful defense.
The Congress acted to remedy several major problems with the capital
counsel appointment process. First, in many States the appointment of
indigent counsel in criminal cases is a county-by-county
responsibility. Unless a State legislature or court system adopts
standards, each county is left to decide who is competent to represent
criminal defendants and how much they should be paid. In smaller and
less affluent counties where there is not a professional public
defender system, the compensation rate for this service can be
shockingly low and the quality of lawyers abysmal. This problem
afflicts the indigent defense system in general, but is more acute in
capital cases which are more complex and time consuming, and where the
stakes are higher.
Second, in addition to the fiscal constraints on individual counties
there are political pressures that make it difficult for well-meaning
administrators to pay appointed lawyers a reasonable rate for their
services. Criminal defendants are highly unpopular recipients of
government largess, and accused murderers even less so. The Sixth
Amendment to the U.S. Constitution requires that defendants be afforded
effective representation at State expense, but efforts to invoke the
Sixth Amendment to generate systemic change in State indigent defense
systems have been largely unavailing.
A third major problem is that in almost all States, the appointment
of capital defense lawyers is made by the trial judge rather than by an
independent appointing authority. State trial judges, who are often
elected officeholders, find themselves under political and
administrative pressure to appoint lawyers unlikely to mount a
vigorous, time-consuming or expensive defense.
Several States--including North Carolina and New York have--acted in
recent years to establish statewide systems to deliver effective
representation. North Carolina, for example, has established a
centralized, independent appointing authority known as the Indigent
Defense Services Commission. The Commission appoints a statewide
Capital Defender who is accountable to the Commission but not
accountable to the judiciary or to the political branches of
government. The Capital Defender compiles and maintains a roster of
private lawyers and public defenders who are qualified to try capital
cases. The Capital Defender appoints two defense lawyers for each
capital defendant. He may appoint himself and his staff, or he may
appoint lawyers from the roster. The trial judge has no role whatsoever
in the appointment of counsel. Congress viewed the North Carolina
system as a national model for establishing an effective capital
counsel system.
Section 421 of the new law authorizes a grant program, to be
administered by the Attorney General, to improve the quality of legal
representation provided to indigent defendants in State capital cases.
Grants shall be used to establish, implement, or improve an effective
system for providing competent legal representation in capital cases,
but may not be used to fund representation in specific cases.
In earlier versions of the Innocence Protection Act, I had proposed
to condition certain State defenses in habeas corpus actions on the
State's establishment of an effective system for appointing capital
counsel. In this manner, all capital States would have a strong
incentive to improve their appointment systems, not merely those States
that choose to apply for Federal funds. While this more ambitious
proposal was not adopted, it is my intention that the grant program be
administered in a manner that ensures meaningful improvements in this
vital State function. Congress did not create this program to support
existing death penalty systems in the States but rather to leverage
needed improvements.
Under the new law, an effective system is one in which a public
defender program or other entity establishes qualifications for
attorneys who may be appointed to represent indigents in capital cases;
establishes and maintains a roster of qualified attorneys and assigns
attorneys from the roster; trains and monitors the performance of such
attorneys; and ensures funding for the full cost of competent legal
representation by the defense team and any outside experts.
The Act's definition of an effective system evolved from standards
developed by the American Bar Association and adopted by other
standard-setting bodies and commissions, such as the Constitution
Project's blue-ribbon commission on capital punishment. Ideally, the
entity that identifies and appoints defense lawyers will be independent
of the political branches of State government, as are the authorities
in North Carolina and New York. For example, the Act explicitly states
that sitting prosecutors may not serve on the appointing entity. The
underlying purpose of the scheme is to help insulate the appointment
process from the political pressures that make it difficult for
individual trial judges to appoint competent lawyers in individual
cases.
In the course of negotiations to pass the bill in the House last
year, I and other sponsors of the bill reluctantly agreed to accept an
amendment, now section 421(e)(1)(C) of the Act, that has come to be
described as ``the Texas carve-out.'' Under this provision, a State may
qualify for a capital representation improvement grant if it has
adopted and substantially complies with a State statutory procedure
enacted before this Act under which the trial judge is required to
appoint qualified attorneys from a roster maintained by a State or
regional selection committee or similar entity.
In fact, the ``Texas carve-out'' is not a carve-out at all. It simply
acknowledges that Texas is in the process of implementing a recent
statewide reform law, the Fair Defense Act of 2001, and should be
permitted to continue that process. If Texas is awarded a Federal grant
it will still be required to improve its capital counsel appointment
system, but Federal authorities will measure those improvements against
standards in the 2001 Texas law.
Texas is not yet living up to the promise of the Fair Defense Act. A
November 2003 report by the Equal Justice Center and the Texas Defender
Service demonstrates that many Texas counties have failed to establish
effective roster systems for identifying qualified lawyers and fail to
provide reasonable compensation to capital counsel. If Texas accepts
Federal funds under this new program, it will be required to live up to
its own State standards, including the all-important requirement of
reasonable compensation. The TDS report should be a guidepost for
needed improvements.
It is conceivable that other States will qualify for consideration
under section 421(e)(1)(C) but the provision should be strictly
interpreted by grant administrators. The State law must have been
enacted prior to enactment of the Innocence Protection Act, the trial
judge must be required to make appointments from a roster of qualified
lawyers, and the roster must be maintained by the State, a regional
selection committee or a similar agency that is independent of the
trial court. Congress was aware that the trial courts in many States
maintain rosters from which lawyers may be chosen, but that is not the
sort of rigorous quality control mechanism that section 421(e)(1)(C)
requires.
States that establish an effective system under section 421(e)(1)(A)
or (B) must compensate lawyers in accordance with section
421(e)(2)(F)(ii). That provision requires, among other things, that
public defenders be compensated
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according to a salary scale commensurate with the salary scale of the
prosecutor's office in the jurisdiction. This requirement parallels the
requirement that capital representation improvement grants are to be
divided evenly between the defense and prosecution functions. In
enacting the IPA, Congress generally approved of the concept of
resource parity between the defense and the prosecution, a concept that
is essential to ensuring fair trials in our adversarial system of
justice.
Another important requirement concerning attorney compensation
appears in section 421(e)(2)(F)(ii)(II) which states that appointed
attorneys be compensated ``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.'' Again, this concept is drawn from
the American Bar Association standards, which should be consulted by
grant administrators in implementing the program. This new statutory
requirement would clearly preclude a participating State from
compensating attorneys under a flat fee or capped fee system, because
such a system would not compensate the attorney for ``actual time and
services, computed on an hourly basis.''
Moreover, the term ``reasonable hourly rate'' must be taken seriously
by those who administer the new program. For example, there is general
agreement among experts that the Federal compensation rate of $125 per
hour is reasonable in most parts of the country.
In my view, a State rate comparable to the Federal rate should be
considered ``reasonable,'' taking into account differences in the cost
of living in various parts of the country. Capital cases are among the
most complex, high stakes cases tried in any courthouse, and the
lawyers who represent defendants in such cases should be paid at a rate
comparable to that earned by other lawyers engaged in similarly
important litigation.
One recent modification of section 421 would make clear that sitting
prosecutors may not be members of the appointing authority established
under section 421(e)(1)(B), although others with expertise in capital
cases may participate. I agree that under this new language members of
the judiciary may be members of the authority. On the other hand it
would be impermissible for the appointing authority to delegate its
authority to trial judges or to a group of trial judges. Such a
delegation would defeat one of the central goals of the Act, which was
to insulate the appointment power from the political and administrative
pressures on trial judges.
As part of the same program established in section 421, section 422
authorizes grants to improve the representation of the public in State
capital cases. Grants shall be used to design and implement training
programs for capital prosecutors; develop, implement, and enforce
appropriate standards and qualifications for such prosecutors and
assess their performance; establish programs under which prosecutors
conduct a systematic review of cases in which a defendant is sentenced
to death in order to identify cases in which post-conviction DNA
testing is appropriate; and assist the families of murder victims.
A key limitation on these prosecution grants is that they may not be
used ``to fund, directly or indirectly, the prosecution of specific
capital cases.'' Consistent with the IPA's overarching goal of ensuring
that capital punishment is carried out in a fair and reliable manner,
these grants should be used to establish and improve systems within
prosecutor offices to minimize errors and abuses that may lead to
wrongful convictions. They may not be used to hire additional capital
prosecutors.
Section 423 establishes requirements for States applying for grants
under this subtitle, including a long-term strategy and detailed
implementation plan that reflects consultation with the judiciary, the
organized bar, and State and local prosecutor and defender
organizations, and establishes as a priority improvement in the quality
of trial-level representation of indigents charged with capital crimes
and trial-level prosecution of capital crimes in order to enhance the
reliability of capital trial verdicts.
In the case of a State that relies on a statutory procedure described
in section 421(e)(1)(C), the Texas-related provision I have previously
discussed, a State officer must certify that the State is in compliance
with State law. But such a certification should not be considered
dispositive--Federal grant administrators must still assess the State's
compliance with State law. Thus, the certification does not obviate the
need for the Inspector General to carry out an independent assessment
of the State's compliance under section 425(a)(3).
Section 424 requires States receiving funds under this subtitle to
submit an annual report to the Attorney General identifying the
activities carried out with the funds and explaining how each activity
complies with the terms and conditions of the grant.
Section 425 directs the Inspector General of the Department of
Justice to submit periodic reports to the Attorney General evaluating
the compliance of each State receiving funds under this subtitle with
the terms and conditions of the grant. In conducting such evaluations,
the Inspector General shall give priority to States at the highest risk
of noncompliance. If, after receiving a report from the Inspector
General, the Attorney General finds that a State is not in compliance,
the Attorney General shall take a series of steps to bring the State
into compliance and report to Congress on the results.
Section 425(a)(4) provides an opportunity for public comment during
the Inspector General's review. This provision is not intended to
preclude a member of the public from seeking any other available legal
remedy after the Attorney General has made a final determination of
whether a State is in compliance with the requirements of the statute.
A special rule is provided in section 425(f) to ensure that any State
relying on the Texas-related provision in section 421 is, in fact,
complying with its own State law. Under the special rule, if the
Inspector General determines that the State is not in compliance,
Federal funds that would have otherwise been available to the
prosecution function shall be used solely for the defense function. A
separate determination by the Attorney General is not required to
trigger this special rule.
Section 426 authorizes $75 million a year for 5years to carry out
this subtitle. States receiving grants under this subtitle shall
allocate the funds equally between the programs established in sections
421 and 422, subject to the special rule in section 425(f) that I just
described.
The Justice For All Act is the most significant step we have taken in
many years to improve the quality of justice in this country. The
reforms it enacts will create a fairer system of justice, where the
problems that have sent innocent people to death row are less likely to
occur, where the American people can be more certain that violent
criminals are caught and convicted instead of the innocent people who
have been wrongly put behind bars for their crimes, and where victims
and their families can be more certain of the accuracy, and finality,
of the results. Once again, I thank my colleagues in both bodies who
worked hard to resolve conflicts and congratulate them on this
legislative achievement.
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