[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2739 Introduced in Senate (IS)]
107th CONGRESS
2d Session
S. 2739
To provide for post-conviction DNA testing, to improve competence and
performance of prosecutors, defense counsel, and trial judges handling
State capital criminal cases, to ensure the quality of defense counsel
in Federal capital cases, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 17, 2002
Mr. Hatch (for himself, Mr. DeWine, Mr. Lott, Mr. Domenici, Mr.
Bunning, Mr. Grassley, Mr. Kyl, Mr. McConnell, Mr. Sessions, Mr.
Santorum, Mr. Hutchinson, Mr. Thurmond, and Mr. Helms) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To provide for post-conviction DNA testing, to improve competence and
performance of prosecutors, defense counsel, and trial judges handling
State capital criminal cases, to ensure the quality of defense counsel
in Federal capital cases, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Death Penalty
Integrity Act of 2002''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--POST-CONVICTION DNA TESTING IN FEDERAL COURT
Sec. 101. Federal post-conviction DNA testing.
Sec. 102. State post-conviction DNA testing.
Sec. 103. Repeal.
TITLE II--ENSURING FAIR CAPITAL TRIALS IN STATE AND LOCAL COURTS
Sec. 201. Grants to train prosecutors, defense counsel, and State and
local judges handling State capital cases.
Sec. 202. Ensuring competent counsel in Federal death penalty cases.
Sec. 203. Ensuring competent counsel in noncapital cases.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) In the last decade, deoxyribonucleic acid testing
(referred to in this Act as ``DNA testing'') has emerged as the
most reliable forensic technique for identifying criminals when
biological evidence of the crime is obtained. DNA testing ``has
been acknowledged by the courts as well as the national
scientific community for its extraordinary degree of accuracy
in matching cellular material to individuals''. Commonwealth v.
Brison, 618 A.2d 420 (S. Ct. Pa. 1992).
(2) In many cases, DNA testing of biological evidence can
reveal relevant evidence of a crime, and in a narrow class of
cases, it can conclusively prove the guilt or innocence of a
criminal defendant. In many other cases, however, DNA testing
can provide only inconclusive or irrelevant evidence.
(3) While DNA testing is standard in pretrial
investigations in every State today, it was not widely
available prior to the early 1990's. In addition, new DNA
testing technologies have been developed that can accurately
examine minute samples and obtain more discriminating results
than earlier forms of DNA testing.
(4) DNA testing may be possible on biological evidence that
is more than a decade old. Because biological evidence, such as
semen or hair from a rape, is often preserved by authorities
years after trial, it has become possible to submit preserved
biological evidence to DNA testing. In cases that were tried
before DNA technology existed, and in which biological evidence
was preserved after conviction, post-conviction testing may be
feasible.
(5) Even within this narrow class of cases that occurred
before DNA technology existed, and in which biological evidence
was preserved, post-conviction testing is appropriate only if
the identity of the perpetrator was an issue at trial, and DNA
testing has the potential to exonerate the defendant of the
crime for which he was convicted of beyond a reasonable doubt.
To authorize post-conviction testing in a broader category of
cases would lead to a waste of scarce prosecutorial and
judicial resources without increasing the likelihood of
determining whether an innocent person was wrongfully
convicted.
(6) Twenty-five of 38 States which have capital punishment
have enacted post-conviction DNA testing programs, and 6 States
have pending legislation to implement DNA programs. Several
States, including Illinois, New York, and Arizona, have enacted
statutes that authorize post-conviction DNA testing where such
testing has the potential to exonerate a defendant. For
example, in People v. Savory, 722, N.E.2d 220, 224 (Ill. 1999),
the court, after an exhaustive examination of the Illinois
post-conviction DNA testing statute, concluded that ``the
legislature intended to provide a process of total
vindication...[I]n using the term `actual innocence', the
legislature intended to limit the scope of the [Illinois
statute], allowing for scientific testing only where it has the
potential to exonerate a defendant.''. In Savory, the court
denied post-conviction testing because ``although DNA testing
carries the possibility of weakening the State's original case
against defendant, it does not have the potential to prove him
innocent''.
(7) Because DNA testing is standard in pretrial
investigations in every State today, the issue of post-
conviction DNA testing involves only a narrow class of cases
prosecuted before DNA technology existed. In the near future,
the need for post-conviction DNA testing will cease because of
the availability of pretrial testing with advanced
technologies.
(8) In the last decade, post-conviction DNA testing has
exonerated innocent persons who were wrongly convicted in
trials that occurred before DNA testing existed. In some of
these cases, the post-conviction DNA testing that exonerated a
wrongly convicted person also provided evidence that led to the
apprehension of the actual perpetrator.
(9) Under Federal law, it is difficult to obtain post-
conviction DNA testing because of time limits on introducing
newly discovered evidence. Under Federal law, such a motion
must be made not later than 3 years after the date of
conviction. These time limits are based on the fact that
evidence becomes less reliable after the passage of time and,
as a result, it is difficult to prosecute criminal cases years
after the crime occurred.
(10) The time limits on introducing newly discovered
evidence should not bar post-conviction DNA testing in
appropriate cases because DNA testing can produce accurate results on
biological evidence that is more than a decade old. Unlike other
evidence, the results of DNA testing are not necessarily less reliable
after the passage of time.
(11) Once post-conviction DNA testing is performed, the
results of such testing should be considered as newly
discovered evidence by the courts. If post-conviction testing
produces exculpatory evidence, the defendant should be allowed
to move for a new trial based on newly discovered evidence,
notwithstanding the time limits on such motions applicable to
other forms of newly discovered evidence.
TITLE I--POST-CONVICTION DNA TESTING IN FEDERAL COURT
SEC. 101. FEDERAL POST-CONVICTION DNA TESTING.
(a) Federal Criminal Procedure.--
(1) In general.--Part II of title 18, United States Code,
is amended by inserting after chapter 228 the following:
``CHAPTER 228A--POST-CONVICTION DNA TESTING
``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.
``Sec. 3600. DNA testing
``(a) Motion.--
``(1) In general.--An individual who, after a trial, was
convicted of a Federal crime and is serving a term of
imprisonment as a result of that conviction (referred to in
this section as the `applicant') may file a written motion to
the court that entered the judgment of conviction for the
performance of forensic DNA testing on specified evidence
that--
``(A) was secured in relation to the investigation
or prosecution that resulted in the conviction of the
applicant; and
``(B) was not subject to DNA testing because the
technology for such testing was not available to the
applicant at the time of the trial.
``(2) Contents.--A motion filed under paragraph (1) shall--
``(A) include an assertion by the applicant, under
penalty of perjury, that the applicant was actually
innocent of--
``(i) the offense for which the applicant
was convicted; or
``(ii) evidence introduced at the trial of
the offense of conviction or relied upon by the
court at sentencing, the exoneration of which
would result in a mandatory reduction of the
applicant's sentence;
``(B) identify the specific evidence secured in
relation to the investigation or prosecution that
resulted in the conviction of the applicant for which
DNA testing is requested;
``(C) identify a theory of defense, not
inconsistent with previously asserted theories, which
would establish the actual innocence of the applicant,
and explain how the requested DNA testing would
substantiate that theory of defense;
``(D) make a prima facie showing that the
conditions set forth in this section for issuance of a
testing order are satisfied; and
``(E) certify that the applicant--
``(i) will provide a DNA sample from the
applicant for purposes of comparison; and
``(ii) waives, in all Federal and State
jurisdictions, the right to raise as a defense
any limitation period for prosecution for any
other offense in any subsequent criminal
prosecution which is discovered as a result of
a comparison of the applicant's DNA to any
Federal or State DNA database.
``(3) Purpose.--A motion filed under paragraph (1) must be
filed for the purpose of demonstrating the actual innocence of
the applicant, not to delay the execution of sentence or
administration of justice.
``(b) Time Period for Filing Motion.--A motion filed under
subsection (a) shall be considered timely if it is filed within 60
months after the date of enactment of this section.
``(c) Notice to the Government; Preservation Order; Appointment of
Counsel.--
``(1) Notice.--Upon receipt of a motion filed under
subsection (a), the court shall notify the Government and shall
afford the Government a reasonable time period to respond to
the motion.
``(2) Preservation order.--To the extent necessary to carry
out proceedings under this section, the court may direct the
Government to preserve evidence to which a motion under
subsection (a) relates.
``(3) Appointment of counsel.--The court may appoint
counsel for an indigent applicant under this section in the
same manner as in a proceeding under section 3006A(a)(2)(B).
``(d) Order for DNA Testing.--The court shall order the DNA testing
requested in a motion filed under subsection (a) if, after a review of
the trial record, the court finds that--
``(1) the applicant's motion satisfies the requirements of
subsection (a);
``(2) the identity of the perpetrator was at issue in the
trial that resulted in the conviction of the applicant;
``(3) the evidence to be tested is in the possession of the
Government and has been subject to a chain of custody and
retained under conditions sufficient to ensure that the
evidence has not been substituted, contaminated, tampered with,
replaced, or altered in any respect material to the requested
DNA testing;
``(4)(A) the technology for the requested DNA testing was
not available at the time of trial; or
``(B) if any of the evidence was previously subjected to
DNA testing, the testing now requested uses a newer DNA testing
technique that is reasonably certain to provide results that
are substantially more accurate and probative than any previous
DNA testing of the evidence;
``(5) the proposed DNA testing is reasonable in scope, uses
scientifically sound methods, and is consistent with accepted
forensic practice;
``(6) the applicant would be entitled to either a new trial
under subsection (h)(5) or a reduction of sentence under
subsection (h)(6) where the results of the requested DNA
testing exclude the defendant as the source of the DNA in the
evidence; and
``(7) the applicant's motion is--
``(A) filed in a timely manner; and
``(B) filed for the purpose of demonstrating the
actual innocence of the applicant and not to delay the
execution of sentence or administration of justice.
``(e) Testing Procedures.--
``(1) In general.--The court shall direct that any DNA
testing ordered under this section be carried out by the
Federal Bureau of Investigation (FBI).
``(2) Inability to test dna.--If the FBI is unable to
conduct such DNA testing, the court--
``(A) on motion of the applicant for good cause
shown, may direct that such DNA testing be conducted by
another laboratory; and
``(B) shall make all necessary orders to ensure the
integrity of the evidence and the reliability of the
testing process and test results.
``(3) Costs.--The costs of any DNA testing ordered under
this section shall be paid--
``(A) by the applicant; or
``(B) in the case of an applicant who is indigent,
by the court.
``(f) Time Limitation in Capital Cases.--In any case in which the
applicant is sentenced to death--
``(1) any DNA testing ordered under this section shall be
completed not later than 120 days after the date on which the
Government responds to the motion filed under subsection (a);
and
``(2) not later than 30 days after the date on which the
DNA testing ordered under this section is completed, the court
shall order any post-testing procedures under subsection (h).
``(g) Reporting of Test Results.--
``(1) In general.--The results of any DNA testing ordered
under this section shall be simultaneously disclosed to the
court, the applicant, and the Government.
``(2) CODIS.--The Government shall include any test results
relating to the DNA of the applicant in the Combined DNA Index
System (CODIS).
``(h) Post-Testing Procedures; Filing of Motions for New Trial or
Reduction of Sentence and Court Orders.--
``(1) In general.--If DNA testing results obtained under
this section are inconclusive or show that the applicant was
the source of DNA in the evidence, the court shall deny the
applicant relief.
``(2) Procedures.--Where the testing results show that the
applicant was the source of DNA in the evidence, the court
shall, on motion of the Government--
``(A) make a determination whether the applicant's
assertion of actual innocence was false, and, if the
court makes such a finding, the court may hold the
applicant in contempt;
``(B) assess against the applicant the cost of any
DNA testing carried out under this section;
``(C) forward the finding to the Director of the
Bureau of Prisons, who, upon receipt of such a finding,
may deny, wholly or in part, the good conduct credit
authorized under section 3624 on the basis of that
finding; and
``(D) if the applicant is subject to the
jurisdiction of the United States Parole Commission,
forward the finding to the Commission so that the
Commission may deny parole on the basis of that
finding.
``(3) Sentence.--In any prosecution of an applicant under
chapter 79 for false assertions or other conduct in proceedings
under this section, the court, upon conviction of the
applicant, shall sentence the applicant to a term of
imprisonment of not less than 3 years, which shall run
consecutively with any other term of imprisonment the applicant
is serving.
``(4) Motion for new trial or reduction of sentence.--If
the DNA test results obtained under this section exclude the
applicant as the source of the DNA in the evidence, the
applicant may, within 60 days of notification of the DNA tests
results--
``(A) file a motion for a new trial pursuant to
rule 33 of the Federal Rules of Criminal Procedure,
notwithstanding any provision of law that would bar
such a motion as untimely; or
``(B) file a motion to reduce sentence, if
applicable, pursuant to rule 35 of the Federal Rules of
Criminal Procedure, notwithstanding any provision of
law that would bar such a motion as untimely.
``(5) Procedure for granting of new trial motion.--The
court shall grant the applicant's motion for a new trial,
pursuant to rule 33 of the Federal Rules of Criminal Procedure,
if the DNA testing results, when considered with all other
evidence in the case (whether or not such evidence was
introduced at trial), establish by clear and convincing
evidence that no reasonable factfinder would have found the
applicant guilty of the offense for which the applicant was
convicted.
``(6) Procedure for granting of motion to reduce
sentence.--The court shall grant the applicant's motion for
reduction of sentence, pursuant to rule 35 of the Federal Rules
of Criminal Procedure, if the DNA testing results, when
considered with all other evidence in the case (whether or not
such evidence was introduced at trial), establish that the
applicant is entitled to a mandatory reduction of sentence.
``(i) Final Order.--An order granting or denying DNA testing
requested under subsection (a) or an order granting or denying a motion
for a new trial or motion to reduce sentence under subsection (h) is a
final order for purposes of section 1291 of title 28.
``(j) Time Limits Inapplicable; Other Remedies Unaffected.--
``(1) Time limit for relief.--Notwithstanding any time
limit otherwise applicable to motions for new trials or a
reduction of sentence based on newly discovered evidence, a
court may grant relief to an applicant at any time under
subsection (h).
``(2) Time limit for prosecution.--Notwithstanding any time
limit otherwise applicable to the commencement of prosecution
of a defendant, the Government may commence at any time the
prosecution of an applicant for any offense discovered through
comparison of the DNA of the applicant to a DNA database.
``(3) Other remedies unaffected.--This subsection does not
affect the circumstances under which a person may obtain DNA
testing or post-conviction relief under any other law or rule.
``(k) Applicability to Federal Habeas Corpus.--The denial of post-
conviction DNA testing by a Federal or State court shall not be a
ground for relief in any proceeding under Federal habeas corpus.
``Sec. 3600A. Prohibition on destruction of biological evidence
``(a) In General.--During the 60-month period commencing on the
date of enactment of this section and following the conviction of a
defendant in a criminal case in which the identity of the perpetrator
was at issue in the trial, the Government shall not destroy any
biological evidence that was secured in the investigation or
prosecution of the case and preserved until the time of conviction, if
the defendant is imprisoned for the crime.
``(b) Biological Evidence.--For purposes of this section, the term
`biological evidence' means evidence that the Government knows is--
``(1) a sexual assault forensic examination kit; or
``(2) semen, blood, saliva, hair, skin tissue, or other
identified biological material that derives from the
perpetrator of the crime.
``(c) Applicability.--The prohibition of the destruction of
biological evidence under subsection (a) shall not apply if--
``(1) the biological evidence has been subjected to DNA
testing;
``(2) a court has denied a request or motion for DNA
testing of the biological evidence;
``(3) the biological evidence was disclosed to the
defendant before conviction and the defendant did not seek
available DNA testing; or
``(4) the biological evidence is disclosed to the defendant
after conviction and the defendant does not file a motion under
section 3600 within 180 days of the disclosure.''.
(2) Technical and conforming amendments; amendments to
limitation provisions.--
(A) Chapter analysis.--The chapter analysis for
part II of title 18, United States Code, is amended by
inserting after the item relating to chapter 228 the
following:
``228A. Post-conviction DNA testing......................... 3600''.
(B) Fugitives from justice.--Section 3290 of title
18, United States Code, is amended to read as follows:
``Sec. 3290. Fugitives from justice; persons identified through DNA
matching
``No statute of limitations shall extend to any person fleeing from
justice, or to any person identified by means of a DNA database prior
to such identification.''.
(C) Technical and conforming amendment.--The
analysis for chapter 213 of title 18, United States
Code, is amended by striking the item relating to
section 3290 and inserting the following:
``3290. Fugitives from justice; persons identified through DNA
matching.''.
(b) System for Reporting Motions.--
(1) Establishment.--The Attorney General shall establish a
system for reporting and tracking motions filed in accordance
with section 3600 of title 18, United States Code.
(2) Operation.--In operating the system established under
paragraph (1), the courts shall provide to the Attorney General
any requested assistance in operating such a system and in
ensuring the accuracy and completeness of information included
in that system.
(3) Report.--Not later than 180 days before the expiration
of the time period referenced in section 3600(b) of title 18,
United States Code, as added by this Act, the Attorney General
shall submit a report to Congress that contains--
(A) a list of motions filed under section 3600 of
title 18, United States Code, as added by this Act;
(B) whether DNA testing was ordered pursuant to
such a motion;
(C) whether the applicant obtained relief on the
basis of DNA test results; and
(D) whether further proceedings occurred following
a granting of relief and the outcome of such
proceedings.
(4) Additional information.--The report required to be
submitted under paragraph (3) may include any other information
the Attorney General believes will be useful in assessing the
operation, utility, or costs of section 3600 of title 18,
United States Code, as added by this Act, and any
recommendations the Attorney General may have relating to
future legislative action concerning that section.
(c) Effective Date; Applicability.--This section and the amendments
made by this section shall take effect on the date of enactment of this
Act and shall apply with respect to any offense committed, and to any
judgment of conviction entered, before, on, or after that date of
enactment.
SEC. 102. STATE POST-CONVICTION DNA TESTING.
(a) Coverdell Act Incentive for State Post-Conviction DNA
Testing.--
(1) Authorization of appropriations.--In addition to the
amounts authorized to be appropriated by section 1001(a)(24) of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3793(a)(24)), there are authorized to be
appropriated in each of fiscal years 2003 through 2007,
$10,000,000 for grants to States to be used--
(A) for the purposes set forth in section 2804 of
title I of such Act (42 U.S.C. 3797m); and
(B) to defray the State costs associated with post-
conviction DNA testing.
(2) Grants.--
(A) Application.--To be eligible to receive a grant
under this subsection, a State must submit an
application to the Attorney General at such time, in
such manner, and accompanied by such information as the
Attorney General may reasonably require.
(B) Certification.--An application submitted under
subparagraph (A) shall include a certification that the
State has adopted or will adopt a procedure for post-
conviction DNA testing.
(C) Supplementary funds.--The Attorney General
shall allocate the supplementary funds authorized to be
appropriated under this subsection, for grants under
this paragraph, among qualifying States as nearly as
practicable to the manner provided by section 2803 of
title I of the Omnibus Crime Control and Safe Streets
Act (42 U.S.C. 3797l) for the allocation of funds
appropriated pursuant to section 1001(a)(24) of title I
of such Act (42 U.S.C. 3753(a)(24)).
(D) State.--For purposes of this subsection, the
term ``State'' means a State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, American Samoa, Guam, and the
Commonwealth of the Northern Mariana Islands.
(b) Qualifying Federal Offenses.--Section 3(d) of the DNA Analysis
Backlog Elimination Act of 2000 (42 U.S.C. 14135a(d)) is amended to
read as follows:
``(d) Qualifying Federal Offense.--For purposes of this section,
the term `qualifying Federal offense' means--
``(1) offenses classified as felonies under Federal or any
State law;
``(2) all offenses under chapter 109A of title 18; and
``(3) any crime of violence as defined in section 16 of
title 18.''.
(c) Inclusion of Juveniles in CODIS.--Section 210304(a)(1) of the
Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C.
14132(a)(1)) is amended to read as follows:
``(1) DNA identification records of persons convicted of or
adjudicated delinquent for crimes;''.
SEC. 103. REPEAL.
Effective 60 months after the date of enactment of this Act,
sections 101 and 102(a) are repealed.
TITLE II--ENSURING FAIR CAPITAL TRIALS IN STATE AND LOCAL COURTS
SEC. 201. GRANTS TO TRAIN PROSECUTORS, DEFENSE COUNSEL, AND STATE AND
LOCAL JUDGES HANDLING STATE CAPITAL CASES.
(a) Competent Counsel Grant Program.--The State Justice Institute
Act of 1984 (42 U.S.C. 10701 et seq.) is amended by inserting after
section 207 the following:
``SEC. 207A. GRANT PROGRAM FOR TRAINING DEFENSE COUNSEL.
``(a) Grants Authorized.--The Institute is authorized to award
grants to States to conduct training programs to improve the
performance and competency of defense counsel representing defendants
charged with capital offenses in State and local courts.
``(b) Eligibility.--The Institute is authorized to receive such
grants for the sole purpose of conducting training programs as set
forth in subsection (a). Grants authorized by this section may only be
made for training of defense counsel in a State that has capital
punishment.
``(c) Authorization of Appropriations.--There are authorized to be
appropriated $10,000,000 for fiscal years 2003 and 2007 to carry out
this section.''.
(b) Grants To Train Prosecutors.--
(1) In general.--The Director of the Office of Justice
Programs shall make grants to State and local governments to
train prosecutors in handling capital cases.
(2) Eligibility.--Grants authorized by this subsection may
only be made to a State or local government in a State that has
capital punishment.
(3) Authorization of appropriations.--There are authorized
to be appropriated $10,000,000 for fiscal years 2003 and 2007
to carry out this subsection.
(c) Grants To Train State and Local Judges.--
(1) In general.--The Director of the Office of Justice
Programs shall make grants to State and local courts for
training of trial judges to effectively conduct capital trials.
(2) Eligibility.--Grants authorized by this subsection may
only be made to a State or local court in a State that has
capital punishment.
(3) Authorization of appropriations.--There are authorized
to be appropriated $10,000,000 for fiscal years 2003 and 2007
to carry out this subsection.
SEC. 202. ENSURING COMPETENT COUNSEL IN FEDERAL CAPITAL CASES.
(a) Counsel and Witnesses in Capital Cases.--Section 3005 of title
18, United States Code, is amended by inserting after ``reasonable
hours'' the following: ``but, no attorney shall be eligible to
represent an accused where that attorney has been disciplined by a bar
association or court relating to a criminal case, or where that
attorney has been found to have rendered ineffective assistance of
counsel in another Federal or State criminal case''.
(b) Counsel for Indigent Defendants.--Section 408(q)(4) of the
Controlled Substances Act (21 U.S.C. 848(q)(4)) is amended--
(1) in subparagraph (A), by adding before the period at the
end the following: ``but, no attorney shall be eligible to
represent an accused where that attorney has been disciplined
by a bar association or court relating to a criminal case, or
where that attorney has been found to have rendered ineffective
assistance of counsel in another Federal or State criminal
case''; and
(2) in subparagraph (B), by adding before the period at the
end the following: ``but, no attorney shall be eligible to
represent an accused where that attorney has been disciplined
by a bar association or court relating to a criminal case, or
where that attorney has been found to have rendered ineffective
assistance of counsel in another Federal or State criminal
case''.
SEC. 203. ENSURING COMPETENT COUNSEL IN NONCAPITAL CASES.
Section 3006A(b) of title 18, United States Code, is amended in the
third sentence, by adding after ``shall appoint counsel to represent
him'' the following: ``but, no attorney shall be eligible to represent
an accused where that attorney has been disciplined by a bar
association or court relating to a criminal case, or where that
attorney has been found to have rendered ineffective assistance of
counsel in another Federal or State criminal case''.
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