[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2442 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2442

   To ensure that indigent death penalty defendants in State courts 
     receive adequate legal representation, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 2, 2002

  Mr. Specter introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To ensure that indigent death penalty defendants in State courts 
     receive adequate legal representation, and for other purposes.

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

SECTION 1. SHORT TITLE.

    (a) Short Title.--This Act may be cited as the ``Capital Defense 
Counsel Standards Act of 2002''.

SEC. 2. RIGHT TO LEGAL REPRESENTATION FOR INDIGENT DEFENDANTS.

    (a) Preconviction Representation.--Notwithstanding any other 
provision of law, a defendant in a criminal action in a State court, 
which may result in punishment by death, who is or becomes financially 
unable to obtain adequate representation or investigative, expert, or 
other reasonably necessary services at any time--
            (1) before judgment; or
            (2) after the entry of a judgment imposing a sentence of 
        death, but before the execution of that judgment;
shall be entitled to the appointment of 1 or more attorneys and the 
furnishing of such other services in accordance with the provisions of 
this Act.
    (b) Postconviction Representation.--In a postconviction proceeding 
in which a defendant seeks to vacate or set aside a death sentence, a 
defendant who is or becomes financially unable to obtain adequate 
representation or investigative, expert, or other reasonably necessary 
services shall be entitled to the appointment of 1 or more attorneys 
and the furnishing of such other services in accordance with the 
provisions of this Act.

SEC. 3. MINIMUM EXPERIENCE REQUIRED FOR DEFENSE COUNSEL.

    (a) Prejudgment Appointment.--
            (1) In general.--If the appointment of legal counsel under 
        this Act is made before judgment, at least 1 attorney so 
        appointed--
                    (A) must have been admitted to practice for not 
                less than 5 years in the court in which the prosecution 
                is to be tried; and
                    (B) must have not less than 3 years experience in 
                the actual trial of felony prosecutions in that court.
            (2) Judicial appointment.--The court before which the 
        defendant is to be tried, or a judge thereof, shall promptly, 
        upon the request of the defendant, assign 2 attorneys to the 
        case.
            (3) Expertise; accessibility.--At least 1 of the attorneys 
        assigned under paragraph (2)--
                    (A) shall be learned in the law applicable to 
                capital cases; and
                    (B) shall have free access to the accused at all 
                reasonable hours.
            (4) Recommendation.--In assigning counsel under this 
        section, the court shall consider--
                    (A) the recommendation of the State public defender 
                organization, community defender organization, or 
                equivalent organization; or
                    (B) if no such organization exists in the relevant 
                jurisdiction, the administrative office of the local 
                court or any governmental entity, bar association, or 
                organization with knowledge regarding the skills and 
                qualifications of local defense counsel.
            (5) Witnesses.--The court shall allow a defendant, under 
        this Act, to produce lawful witnesses to testify in support of 
        the defendant, and shall compel such witnesses to appear at 
        trial in the same manner that witnesses are compelled to appear 
        on behalf of the prosecution.
    (b) Postjudgment Appointment.--If the appointment is made after 
judgment, at least 1 attorney appointed shall--
            (1) have been admitted to practice for not less than 5 
        years in the appropriate State appellate court;
            (2) have not less than 3 years experience in the handling 
        of felony appeals in that court; and
            (3) be learned in the law applicable to capital cases.
    (c) Learned Standard.--In determining whether an attorney is 
learned in the law of capital cases under this section, the State court 
shall apply the standard used in the courts of the United States.

SEC. 4. ADEQUATE REPRESENTATION.

    (a) Appointment of Substitute Counsel.--With respect to this 
section, the court, for good cause, may appoint another attorney whose 
background, knowledge, or experience would otherwise enable the 
attorney to properly represent the defendant, with due consideration to 
the seriousness of the possible penalty and to the unique and complex 
nature of the litigation.
    (b) Scope of Legal Representation.--Unless replaced by similarly 
qualified counsel upon the motion of the attorney or the defendant, 
each attorney appointed under this Act shall represent the defendant 
throughout every stage of available judicial proceedings, including--
            (1) pretrial motions and procedures;
            (2) competency proceedings;
            (3) trial;
            (4) sentencing;
            (5) executive and other clemency proceedings;
            (6) motions for new trial;
            (7) appeals;
            (8) applications for stays of execution; and
            (9) applications for writ of certiorari to the Supreme 
        Court of the United States.
    (c) Additional Services.--
            (1) In general.--Upon a finding that investigative, expert, 
        or other services are reasonably necessary for the 
        representation of the defendant, whether in connection with 
        issues relating to guilt or the sentence, the court may 
        authorize the attorneys for the defendant to obtain such 
        services on behalf of the defendant and, if so authorized, 
        shall order the payment of fees and expenses for such services 
        pursuant to section 5.
            (2) Ex parte communications.--No ex parte proceeding, 
        communication, or request may be considered under this section 
        unless a proper showing is made concerning the need for 
        confidentiality. Any such proceeding, communication, or request 
        shall be transcribed and made a part of the record available 
        for appellate review.

SEC. 5. ATTORNEY FEES AND COSTS.

    (a) Attorney Fees.--Compensation shall be paid to attorneys 
appointed under this Act at a rate equivalent to that of attorneys 
representing defendants in Federal capital cases under section 
408(q)(10)(A) of the Controlled Substances Act (21 U.S.C. 
848(q)(10)(A)).
    (b) Additional Expenses.--Fees and expenses paid for investigative, 
expert, and other reasonably necessary services authorized under this 
section shall be equivalent to fees paid in Federal capital cases under 
section 408(q)(10)(B) of the Controlled Substances Act (21 U.S.C. 
848(q)(10)(B)).
    (c) Public Disclosure.--The amounts paid for services under this 
section shall be disclosed to the public, after the disposition of the 
petition.

SEC. 6. IRREBUTTABLE PRESUMPTION OF DEFICIENT PERFORMANCE.

    (a) In General.--In a proceeding in Federal court under section 
2254 of title 28, United States Code, the failure to comply with the 
procedures of this Act shall create an irrebuttable presumption that 
the performance of the counsel for the petitioner was deficient.
    (b) Entitlement to Relief; Burden of Proof; Standard of Review.--A 
petitioner is not entitled to relief unless the petitioner shows that 
the result of the proceeding would have been different if the 
performance of the counsel for the petitioner had not been deficient. 
The party opposing the petition has the burden of establishing that the 
standards in this section have been met. The court shall conduct a de 
novo review to settle this issue.
    (c) Other Remedies.--The provisions of this section are not 
intended to limit any other Federal or State court from enforcing this 
section by any other appropriate remedy.
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