[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 486 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 486

To reduce the risk that innocent persons may be executed, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 7, 2001

 Mr. Leahy (for himself, Mr. Smith of Oregon, Ms. Collins, Mr. Levin, 
  Mr. Feingold, Mr. Jeffords, Mr. Kennedy, Mr. Chafee, Mr. Akaka, Ms. 
Mikulski, Mr. Dodd, Mr. Lieberman, Mr. Torricelli, Mr. Wellstone, Mrs. 
 Boxer, and Mr. Corzine) introduced the following bill; which was read 
          twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To reduce the risk that innocent persons may be executed, 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 ``Innocence 
Protection Act of 2001''.
    (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. Post-conviction DNA testing in Federal criminal justice 
                            system.
Sec. 103. Post-conviction DNA testing in State criminal justice 
                            systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.
Sec. 105. Grants to prosecutors for DNA testing programs.
      TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

Sec. 201. National Commission on Capital Representation.
Sec. 202. Capital defense incentive grants.
Sec. 203. Amendments to prison grant programs.
Sec. 204. Effect on procedural default rules.
Sec. 205. Capital defense resource grants.
                  TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.
Sec. 303. Certification requirement in Federal death penalty 
                            prosecutions.
Sec. 304. Alternative of life imprisonment without possibility of 
                            release.
Sec. 305. Right to an informed jury.
Sec. 306. Annual reports.
Sec. 307. 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 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 more than 80 cases in the United States, DNA 
        evidence has led to the exoneration of innocent men and women 
        who were wrongfully convicted. This number includes at least 10 
        individuals sentenced to death, some of whom came within days 
        of being executed.
            (6) In more than a dozen cases, post-conviction DNA testing 
        that has exonerated an innocent person has also enhanced public 
        safety by providing evidence that led to the identification of 
        the actual perpetrator.
            (7) Experience has shown that it is not unduly burdensome 
        to make DNA testing available to inmates. The cost of that 
        testing is relatively modest and has decreased in recent years. 
        Moreover, the number of cases in which post-conviction DNA 
        testing is appropriate is small, and will decrease as pretrial 
        testing becomes more common.
            (8) Under current Federal and State law, it is difficult to 
        obtain post-conviction DNA testing because of time limits on 
        introducing newly discovered evidence. Under Federal law, 
        motions for a new trial based on newly discovered evidence must 
        be made within 3 years after conviction. In most States, those 
        motions must be made not later than 2 years after conviction, 
and sometimes much sooner. The result is that laws intended to prevent 
the use of evidence that has become less reliable over time have been 
used to preclude the use of DNA evidence that remains highly reliable 
even decades after trial.
            (9) 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 urged that post-conviction DNA testing be permitted in the 
        relatively small number of cases in which it is appropriate, 
        notwithstanding procedural rules that could be invoked to 
        preclude that testing, and notwithstanding the inability of an 
        inmate to pay for the testing.
            (10) Since New York passed the Nation's first post-
        conviction DNA statute in 1994, only a few States have adopted 
        post-conviction DNA testing procedures, and some of these 
        procedures are unduly restrictive. Moreover, only a handful of 
        States have passed legislation requiring that biological 
        evidence be adequately preserved.
            (11) In 1994, Congress passed the DNA Identification Act, 
        which authorized the construction of the Combined DNA Index 
        System, a national database to facilitate law enforcement 
        exchange of DNA identification information, and authorized 
        funding to improve the quality and availability of DNA testing 
        for law enforcement identification purposes. In 2000, Congress 
        passed the DNA Analysis Backlog Elimination Act and the Paul 
        Coverdell Forensic Sciences Improvement Act, which together 
        authorized an additional $908,000,000 over 6 years in DNA-
        related grants.
            (12) Congress should continue to provide financial 
        assistance to the States to increase the capacity of State and 
        local laboratories to carry out DNA testing for law enforcement 
        identification purposes. At the same time, Congress should 
        insist that States which accept financial assistance make DNA 
        testing available to both sides of the adversarial system in 
        order to enhance the reliability and integrity of that system.
            (13) In Herrera v. Collins, 506 U.S. 390 (1993), a majority 
        of the members of the Court suggested that a persuasive showing 
        of innocence made after trial would render the execution of an 
        inmate unconstitutional.
            (14) It shocks the conscience and offends social standards 
        of fairness and decency to execute innocent persons or to deny 
        inmates the opportunity to present persuasive evidence of their 
        innocence.
            (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 
        executed.
            (16) Given the irremediable constitutional harm that would 
        result from the execution of an innocent person and the failure 
        of many States to ensure that innocent persons are not 
        sentenced to death, a Federal statute assuring the availability 
        of DNA testing and a chance to present the results of testing 
        in court is a congruent and proportional prophylactic measure 
        to prevent constitutional injuries from occurring.
    (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 authorizing 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. POST-CONVICTION 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 evidence.
``Sec. 2291. DNA testing
    ``(a) Application.--Notwithstanding any other provision of law, a 
person convicted of a Federal crime may apply to the appropriate 
Federal court for DNA testing to support a claim that the person did 
not commit--
            ``(1) the Federal crime of which the person was convicted; 
        or
            ``(2) any other offense that a sentencing authority may 
        have relied upon when it sentenced the person with respect to 
        the Federal crime either to death or to an enhanced term of 
        imprisonment as a career offender or armed career criminal.
    ``(b) Notice to Government.--The court shall notify the Government 
of an application made under subsection (a) and shall afford the 
Government an opportunity to respond.
    ``(c) Preservation Order.--The court shall order that all evidence 
secured in relation to the case that could be subjected to DNA testing 
must be preserved during the pendency of the proceeding. The court may 
impose appropriate sanctions, including criminal contempt, for the 
intentional destruction of evidence after such an order.
    ``(d) Order.--
            ``(1) In general.--The court shall order DNA testing 
        pursuant to an application made under subsection (a) upon a 
        determination that--
                    ``(A) the evidence is still in existence, and in 
                such a condition that DNA testing may be conducted;
                    ``(B) the evidence was never previously subjected 
                to DNA testing, or was not subject to the type of DNA 
                testing that is now requested and that may resolve an 
                issue not resolved by previous testing;
                    ``(C) the proposed DNA testing uses a 
                scientifically valid technique; and
                    ``(D) the proposed DNA testing has the scientific 
                potential to produce new, noncumulative evidence 
                material to the claim of the applicant that the 
                applicant did not commit--
                            ``(i) the Federal crime of which the 
                        applicant was convicted; or
                            ``(ii) any other offense that a sentencing 
                        authority may have relied upon when it 
                        sentenced the applicant with respect to the 
                        Federal crime either to death or to an enhanced 
                        term of imprisonment as a career offender or 
                        armed career criminal.
            ``(2) Limitation.--The court shall not order DNA testing 
        under paragraph (1) if the Government proves by a preponderance 
        of the evidence that the application for testing was made to 
        unreasonably delay the execution of sentence or administration 
        of justice, rather than to support a claim described in 
        paragraph (1)(D).
            ``(3) Testing procedures.--If the court orders DNA testing 
        under paragraph (1), the court shall impose reasonable 
        conditions on such testing designed to protect the integrity of 
        the evidence and the testing process and the reliability of the 
        test results.
    ``(e) 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, except that an applicant shall not 
be denied testing because of an inability to pay the cost of testing.
    ``(f) Counsel.--The court may at any time appoint counsel for an 
indigent applicant under this section pursuant to section 
3006A(a)(2)(B) of title 18.
    ``(g) Post-Testing Procedures.--
            ``(1) Inconclusive results.--If the results of DNA testing 
        conducted under this section are inconclusive, the court may 
        order such further testing as may be appropriate or dismiss the 
        application.
            ``(2) Results unfavorable to applicant.--If the results of 
        DNA testing conducted under this section inculpate the 
        applicant, the court shall--
                    ``(A) dismiss the application;
                    ``(B) assess the applicant for the cost of the 
                testing; and
                    ``(C) make such further orders as may be 
                appropriate.
            ``(3) Results favorable to applicant.--If the results of 
        DNA testing conducted under this section are favorable to the 
        applicant, the court shall order a hearing and thereafter make 
        such further orders as may be appropriate under applicable 
        rules and statutes regarding post-conviction proceedings, 
        notwithstanding any provision of law that would bar such 
        hearing or orders as untimely.
    ``(h) Rules of Construction.--
            ``(1) Other post-conviction relief unaffected.--Nothing in 
        this section shall be construed to limit the circumstances 
        under which a person may obtain DNA testing or other post-
        conviction relief under any other provision of law.
            ``(2) Finality rule unaffected.--An application under this 
        section shall not be considered a motion under section 2255 for 
        purposes of determining whether it or any other motion is a 
        second or successive motion under section 2255.
    ``(i) Definitions.--In this section:
            ``(1) Appropriate federal court.--The term `appropriate 
        Federal court' means--
                    ``(A) the United States District Court which 
                imposed the sentence from which the applicant seeks 
                relief; or
                    ``(B) in relation to a crime under the Uniform Code 
                of Military Justice, the United States District Court 
                having jurisdiction over the place where the court 
                martial was convened that imposed the sentence from 
                which the applicant seeks relief, or the United States 
                District Court for the District of Columbia, if no 
                United States District Court has jurisdiction over the 
                place where the court martial was convened.
            ``(2) Federal crime.--The term `Federal crime' includes a 
        crime under the Uniform Code of Military Justice.
``Sec. 2292. Preservation of evidence
    ``(a) In General.--Notwithstanding any other provision of law and 
subject to subsection (b), the Government shall preserve all evidence 
that was secured in relation to the investigation or prosecution of a 
Federal crime (as that term is defined in section 2291(i)), and that 
could be subjected to DNA testing, for not less than the period of time 
that any person remains subject to incarceration in connection with the 
investigation or prosecution.
    ``(b) Exceptions.--The Government may dispose of evidence before 
the expiration of the period of time described in subsection (a) if--
            ``(1) other than subsection (a), no statute, regulation, 
        court order, or other provision of law requires that the 
        evidence be preserved; and
            ``(2)(A)(i) the Government notifies any person who remains 
        incarcerated in connection with the investigation or 
        prosecution and any counsel of record for such person (or, if 
        there is no counsel of record, the public defender for the 
        judicial district in which the conviction for such person was 
        imposed), of the intention of the Government to dispose of the 
        evidence and the provisions of this chapter; and
            ``(ii) the Government affords such person not less than 180 
        days after such notification to make an application under 
        section 2291(a) for DNA testing of the evidence; or
            ``(B)(i) the evidence must be returned to its rightful 
        owner, or is of such a size, bulk, or physical character as to 
        render retention impracticable; and
            ``(ii) the Government takes reasonable measures to remove 
        and preserve portions of the material evidence sufficient to 
        permit future DNA testing.
    ``(c) Remedies for Noncompliance.--
            ``(1) General limitation.--Nothing in this section shall be 
        construed to give rise to a claim for damages against the 
        United States, or any employee of the United States, any court 
        official or officer of the court, or any entity contracting 
        with the United States.
            ``(2) Civil penalty.--
                    ``(A) In general.--Notwithstanding paragraph (1), 
                an individual who knowingly violates a provision of 
                this section or a regulation prescribed under this 
                section shall be liable to the United States for a 
                civil penalty in an amount not to exceed $1,000 for the 
                first violation and $5,000 for each subsequent 
                violation, except that the total amount imposed on the 
                individual for all such violations during a calendar 
                year may not exceed $25,000.
                    ``(B) Procedures.--The provisions of section 405 of 
                the Controlled Substances Act (21 U.S.C. 844a) (other 
                than subsections (a) through (d) and subsection (j)) 
                shall apply to the imposition of a civil penalty under 
                subparagraph (A) in the same manner as such provisions 
                apply to the imposition of a penalty under section 405.
                    ``(C) Prior conviction.--A civil penalty may not be 
                assessed under subparagraph (A) with respect to an act 
                if that act previously resulted in a conviction under 
                chapter 73 of title 18.
            ``(3) Regulations.--
                    ``(A) In general.--The Attorney General shall 
                promulgate regulations to implement and enforce this 
                section.
                    ``(B) Contents.--The regulations shall include the 
                following:
                            ``(i) Disciplinary sanctions, including 
                        suspension or termination from employment, for 
                        employees of the Department of Justice who 
                        knowingly or repeatedly violate a provision of 
                        this section.
                            ``(ii) An administrative procedure through 
                        which parties can file formal complaints with 
                        the Department of Justice alleging violations 
                        of this section.''.
    (b) Criminal Penalty.--Chapter 73 of title 18, United States Code, 
is amended by inserting at the end the following:
``Sec. 1519. Destruction or altering of DNA evidence
    ``Whoever willfully or maliciously destroys, alters, conceals, or 
tampers with evidence that is required to be preserved under section 
2292 of title 28, United States Code, with intent to--
            ``(1) impair the integrity of that evidence;
            ``(2) prevent that evidence from being subjected to DNA 
        testing; or
            ``(3) prevent the production or use of that evidence in an 
        official proceeding,
        shall be fined under this title or imprisoned not more than 5 
        years, or both.''.
    (c) Technical and Conforming Amendments.--
            (1) 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''.
            (2) The table of contents for Chapter 73 of title 18, 
        United States Code, is amended by inserting after the item 
        relating to section 1518 the following:

``1519. Destruction or altering of DNA Evidence.''.

SEC. 103. POST-CONVICTION DNA TESTING IN STATE CRIMINAL JUSTICE 
              SYSTEMS.

    (a) Certification Regarding Post-Conviction Testing and 
Preservation of DNA Evidence.--If any part of funds received from a 
grant made under a program listed in subsection (b) is to be used to 
develop or improve a DNA analysis capability in a forensic laboratory, 
or to collect, analyze, or index DNA samples for law enforcement 
identification purposes, the State applying for that grant must certify 
that it will--
            (1) make post-conviction DNA testing available to any 
        person convicted of a State crime in a manner consistent with 
        section 2291 of title 28, United States Code, and, if the 
        results of such testing are favorable to such person, allow 
        such person to apply for post-conviction relief, 
        notwithstanding any provision of law that would bar such 
        application as untimely; and
            (2) preserve all evidence that was secured in relation to 
        the investigation or prosecution of a State crime, and that 
        could be subjected to DNA testing, for not less than the period 
        of time that such evidence would be required to be preserved 
        under section 2292 of title 28, United States Code, if the 
        evidence were related to a Federal crime.
    (b) Programs Affected.--The certification requirement established 
by subsection (a) shall apply with respect to grants made under the 
following programs:
            (1) DNA analysis backlog elimination grants.--Section 2 of 
        the DNA Analysis Backlog Elimination Act of 2000 (Public Law 
        106-546).
            (2) Paul coverdell national forensic sciences improvement 
        grants.--Part BB of title I of the Omnibus Crime Control and 
        Safe Streets Act of 1968 (as added by Public Law 106-561).
            (3) DNA identification grants.--Part X of title I of the 
        Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
        3796kk et seq.).
            (4) Drug control and system improvement grants.--Subpart 1 
        of part E of title I of the Omnibus Crime Control and Safe 
        Streets Act of 1968 (42 U.S.C. 3751 et seq.).
            (5) Public safety and community policing grants.--Part Q of 
        title I of the Omnibus Crime Control and Safe Streets Act of 
        1968 (42 U.S.C. 3796dd et seq.).
    (c) Effective Date.--This section shall apply with respect to any 
grant made on or after the date that is 1 year after the date of 
enactment of this Act.

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

    (a) Application for DNA Testing.--No State shall deny an 
application for DNA testing made by a prisoner in State custody who is 
under sentence of death, if the proposed DNA testing has the scientific 
potential to produce new, noncumulative evidence material to the claim 
of the prisoner that the prisoner did not commit--
            (1) the offense for which the prisoner was sentenced to 
        death; or
            (2) any other offense that a sentencing authority may have 
        relied upon when it sentenced the prisoner to death.
    (b) Opportunity To Present Results of DNA Testing.--No State shall 
rely upon a time limit or procedural default rule to deny a prisoner in 
State custody who is under sentence of death an opportunity to present 
in an appropriate State court new, noncumulative DNA results that 
establish a reasonable probability that the prisoner did not commit an 
offense described in subsection (a).
    (c) Remedy.--A prisoner in State custody who is under sentence of 
death 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 an executive or judicial officer of the State as defendant.
    (d) Finality Rule Unaffected.--An application under this section 
shall not be considered an application for a writ of habeas corpus 
under section 2254 of title 28, United States Code, for purposes of 
determining whether it or any other application is a second or 
successive application under section 2254.

SEC. 105. GRANTS TO PROSECUTORS FOR DNA TESTING PROGRAMS.

    Section 501(b) of title I of the Omnibus Crime Control and Safe 
Streets Act of 1968 (42 U.S.C. 3751(b)) is amended by--
            (1) striking ``and'' at the end of paragraph (25);
            (2) striking the period at the end of paragraph (26) and 
        inserting ``; and''; and
            (3) adding at the end the following:
            ``(27) prosecutor-initiated programs to conduct a 
        systematic review of convictions to identify cases in which DNA 
        testing is appropriate and to offer DNA testing to inmates in 
        such cases.''.

      TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

SEC. 201. NATIONAL COMMISSION ON CAPITAL REPRESENTATION.

    (a) Establishment.--There is established the National Commission on 
Capital Representation (referred to in this section as the 
``Commission'').
    (b) Duties.--The Commission shall--
            (1) survey existing and proposed systems for appointing 
        counsel in capital cases, and the amounts actually paid by 
        governmental entities for capital defense services; and
            (2) formulate standards specifying the elements of an 
        effective system for providing adequate representation, 
        including counsel and investigative, expert, and other services 
        necessary for adequate representation, to--
                    (A) indigents charged with offenses for which 
                capital punishment is sought;
                    (B) indigents who have been sentenced to death and 
                who seek appellate or collateral review in State court; 
                and
                    (C) indigents who have been sentenced to death and 
                who seek certiorari review in the Supreme Court of the 
                United States.
    (c) Elements.--The elements of an effective system described in 
subsection (b)(2) shall include--
            (1) a centralized and independent appointing authority, 
        which shall--
                    (A) recruit attorneys who are qualified to be 
                appointed in the proceedings specified in subsection 
                (b)(2);
                    (B) draft and annually publish a roster of 
                qualified attorneys;
                    (C) 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;
                    (D) periodically review the roster, monitor the 
                performance of all attorneys appointed, provide a 
                mechanism by which members of the relevant State Bar 
                may comment on the performance of their peers, and 
                delete the name of any attorney who fails to 
                satisfactorily 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;
                    (E) conduct or sponsor specialized training 
                programs for attorneys representing clients in capital 
                cases;
                    (F) appoint lead counsel and co-counsel from the 
                roster to represent a client in a capital case promptly 
                upon receiving notice of the need for an appointment 
                from the relevant State court; and
                    (G) report the appointment, or the failure of the 
                client to accept such appointment, to the court 
                requesting the appointment;
            (2) adequate 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;
            (3) reimbursement of private attorneys and public defender 
        organizations for attorney expenses reasonably incurred in the 
        representation of a client in a capital case; and
            (4) 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 client in 
        a capital case.
    (d) Membership.--
            (1) Number and appointment.--The Commission shall be 
        composed of 9 members, as follows:
                    (A) Four members appointed by the President on the 
                basis of their expertise and eminence within the field 
                of criminal justice, 2 of whom have 10 years or more 
experience in representing defendants in State capital proceedings, 
including trial, direct appeal, or post-conviction proceedings, and 2 
of whom have 10 years or more experience in prosecuting defendants in 
such proceedings.
                    (B) Two members appointed by the Conference of 
                Chief Justices, from among the members of the 
                judiciaries of the several States.
                    (C) Two members appointed by the Chief Justice of 
                the United States, from among the members of the 
                Federal Judiciary.
                    (D) The Chairman of the Committee on Defender 
                Services of the Judicial Conference of the United 
                States, or a designee of the Chairman.
            (2) Ex officio member.--The Executive Director of the State 
        Justice Institute, or a designee of the Executive Director, 
        shall serve as an ex officio nonvoting member of the 
        Commission.
            (3) Political affiliation.--Not more than 2 members 
        appointed under paragraph (1)(A) may be of the same political 
        party.
            (4) Geographic distribution.--The appointment of 
        individuals under paragraph (1) shall, to the maximum extent 
        practicable, be made so as to ensure that different geographic 
        areas of the United States are represented in the membership of 
        the Commission.
            (5) Terms.--Members of the Commission appointed under 
        subparagraphs (A), (B), and (C) of paragraph (1) shall be 
        appointed for the life of the Commission.
            (6) Deadline for appointments.--All appointments to the 
        Commission shall be made not later than 45 days after the date 
        of enactment of this Act.
            (7) Vacancies.--A vacancy in the Commission shall not 
        affect its powers, and shall be filled in the same manner in 
        which the original appointment was made.
            (8) No compensation.--Members of the Commission shall serve 
        without compensation for their service.
            (9) Travel expenses.--Members of the Commission shall 
        receive travel expenses, including per diem in lieu of 
        subsistence, in accordance with sections 5702 and 5703 of title 
        5, United States Code.
            (10) Quorum.--A majority of the members of the Commission 
        shall constitute a quorum, but a lesser number may hold 
        hearings.
            (11) Initial meeting.--The initial meeting of the 
        Commission shall occur not later than 30 days after the date on 
        which all initial members of the Commission have been 
        appointed.
            (12) Chairperson.--At the initial meeting of the 
        Commission, a majority of the members of the Commission present 
        and voting shall elect a Chairperson from among the members of 
        the Commission appointed under paragraph (1).
    (e) Staff.--
            (1) In general.--The Commission may appoint and fix the pay 
        of such personnel as the Commission considers appropriate.
            (2) Experts and consultants.--The Commission may procure 
        temporary and intermittent services under section 3109(b) of 
        title 5, United States Code.
    (f) Powers.--
            (1) Information-gathering activities.--The Commission may, 
        for the purpose of carrying out this section, hold hearings, 
        receive public comment and testimony, initiate surveys, and 
        undertake such other activities to gather information as the 
        Commission may find advisable.
            (2) Obtaining official information.--The Commission may 
        secure directly from any department or agency of the United 
        States such information as the Commission considers necessary 
        to carry out this section. Upon request of the chairperson of 
        the Commission, the head of that department or agency shall 
        provide such information, except to the extent prohibited by 
        law.
            (3) Administrative support services.--Upon the request of 
        the Commission, the Administrator of General Services shall 
        provide to the Commission, on a reimbursable basis, the 
        administrative support services necessary for the Commission to 
        carry out its responsibilities under this section.
            (4) Postal services.--The Commission may use the United 
        States mails in the same manner and under the same conditions 
        as other departments and agencies of the United States.
    (g) Report.--
            (1) In general.--The Commission shall submit a report to 
        the President and the Congress before the end of the 1-year 
        period beginning after the first meeting of all members of the 
        Commission.
            (2) Contents.--The report submitted under paragraph (1) 
        shall contain--
                    (A) a comparative analysis of existing and proposed 
                systems for appointing counsel in capital cases, and 
                the amounts actually paid by governmental entities for 
capital defense services; and
                    (B) such standards as are formulated by the 
                Commission pursuant to subsection (b)(2), together with 
                such commentary and recommendations as the Commission 
                considers appropriate.
    (h) Termination.--The Commission shall terminate 90 days after 
submitting the report under subsection (g).
    (i) Expenses of Commission.--There are authorized to be 
appropriated to pay any expenses of the Commission such sums as may be 
necessary not to exceed $1,000,000. Any sums appropriated for such 
purposes are authorized to remain available until expended, or until 
the termination of the Commission pursuant to subsection (h), whichever 
occurs first.

SEC. 202. CAPITAL DEFENSE INCENTIVE GRANTS.

    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. CAPITAL DEFENSE INCENTIVE GRANTS.

    ``(a) Program Authorized.--The State Justice Institute (referred to 
in this section as the `Institute') may make grants to State agencies 
and organizations responsible for the administration of standards of 
legal competence for counsel in capital cases, for the purposes of--
            ``(1) implementing new mechanisms or supporting existing 
        mechanisms for providing representation in capital cases that 
        comply with the standards promulgated by the National 
        Commission on Capital Representation pursuant to section 201(b) 
        of the Innocence Protection Act of 2001; and
            ``(2) otherwise improving the quality of legal 
        representation in capital cases.
    ``(b) Use of Funds.--Funds made available under this section may be 
used for any purpose that the Institute determines is likely to achieve 
the purposes described in subsection (a), including--
            ``(1) training and development of training capacity to 
        ensure that attorneys assigned to capital cases meet such 
        standards;
            ``(2) augmentation of attorney, paralegal, investigator, 
        expert witness, and other staff and services necessary for 
        capital defense; and
            ``(3) development of new mechanisms for addressing 
        complaints about attorney competence and performance in capital 
        cases.
    ``(c) Applications.--
            ``(1) In general.--No grant may be made under this section 
        unless an application has been submitted to, and approved by, 
        the Institute.
            ``(2) Application.--An application for a grant under this 
        section shall be submitted in such form, and contain such 
        information, as the Institute may prescribe by regulation or 
        guideline.
            ``(3) Contents.--In accordance with the regulations or 
        guidelines established by the Institute, each application for a 
        grant under this section shall--
                    ``(A) include a long-term strategy and detailed 
                implementation program that reflects consultation with 
                the organized bar of the State, the highest court of 
                the State, and the Attorney General of the State, and 
                reflects consideration of a statewide strategy; and
                    ``(B) specify plans for obtaining necessary support 
                and continuing the proposed program following the 
                termination of Federal support.
    ``(d) Rules and Regulations.--The Institute may issue rules, 
regulations, guidelines, and instructions, as necessary, to carry out 
the purposes of this section.
    ``(e) Technical Assistance and Training.--To assist and measure the 
effectiveness and performance of programs funded under this section, 
the Institute may provide technical assistance and training, as 
required.
    ``(f) Grant Period.--A grant under this section shall be made for a 
period not longer than 3 years, but may be renewed on such terms as the 
Institute may require.
    ``(g) Limitations on Use of Funds.--
            ``(1) Nonsupplanting requirement.--Funds made available 
        under this section shall not be used to supplant State or local 
        funds, but shall be used to supplement the amount of funds that 
        would, in the absence of Federal funds received under this 
        section, be made available from States or local sources.
            ``(2) Federal share.--The Federal share of a grant made 
        under this part may not exceed--
                    ``(A) for the first fiscal year for which a program 
                receives assistance, 75 percent of the total costs of 
                such program; and
                    ``(B) for subsequent fiscal years for which a 
                program receives assistance, 50 percent of the total 
                costs of such program.
            ``(3) Administrative costs.--A State agency or organization 
        may not use more than 5 percent of the funds it receives from 
        this section for administrative expenses, including expenses 
        incurred in preparing reports under subsection (h).
    ``(h) Report.--Each State agency or organization that receives a 
grant under this section shall submit to the Institute, at such times 
and in such format as the Institute may require, a report that 
contains--
            ``(1) a summary of the activities carried out under the 
        grant and an assessment of the effectiveness of such activities 
        in achieving ongoing compliance with the standards formulated 
        pursuant to section 201(b) of the Innocence Protection Act of 
        2001 and improving the quality of representation in capital 
        cases; and
            ``(2) such other information as the Institute may require.
    ``(i) Report to Congress.--Not later than 90 days after the end of 
each fiscal year for which grants are made under this section, the 
Institute shall submit to Congress a report that includes--
            ``(1) the aggregate amount of grants made under this part 
        to each State agency or organization for such fiscal year;
            ``(2) a summary of the information provided in compliance 
        with subsection (h); and
            ``(3) an independent evaluation of the effectiveness of the 
        programs that received funding under this section in achieving 
        ongoing compliance with the standards formulated pursuant to 
        section 201(b) of the Innocence Protection Act of 2001 and 
        improving the quality of representation in capital cases.
    ``(j) Definitions.--In this section--
            ``(1) the term `capital case'--
                    ``(A) 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
                    ``(B) includes all proceedings filed in connection 
                with the case, up to and including direct appellate 
                review and post-conviction review in State court; and
            ``(2) the term `representation' includes counsel and 
        investigative, expert, and other services necessary for 
        adequate representation.
    ``(k) Authorization of Appropriations.--
            ``(1) In general.--There are authorized to be appropriated 
        to carry out this section, in addition to other amounts 
        authorized by this Act, to remain available until expended, 
        $50,000,000 for fiscal year 2002, and such sums as may be 
        necessary for fiscal years 2003 and 2004.
            ``(2) Technical assistance and training.--Not more than 3 
        percent of the amount made available under paragraph (1) for a 
        fiscal year shall be available for technical assistance and 
        training activities by the Institute under subsection (e).
            ``(3) Evaluations.--Up to 5 percent of the amount 
        authorized to be appropriated under paragraph (1) in any fiscal 
        year may be used for administrative expenses, including 
        expenses incurred in preparing reports under subsection (i).''.

SEC. 203. AMENDMENTS TO PRISON GRANT PROGRAMS.

    (a) In General.--Subtitle A of title II of the Violent Crime 
Control and Law Enforcement Act of 1994 (42 U.S.C. 13701 et seq.) is 
amended by adding at the end the following:

``SEC. 20110. STANDARDS FOR CAPITAL REPRESENTATION.

    ``(a) Withholding of Funds for Noncompliance With Standards for 
Capital Representation.--
            ``(1) In general.--The Attorney General shall withhold a 
        portion of any grant funds awarded to a State or unit of local 
        government under this subtitle on the first day of each fiscal 
        year after the second fiscal year beginning after September 30, 
        2001, if such State, or the State to which such unit of local 
        government appertains--
                    ``(A) prescribes, authorizes, or permits the 
                penalty of death for any offense, and sought, imposed, 
                or administered such penalty at any time during the 
                preceding 5 fiscal years; and
                    ``(B) has not established or does not maintain an 
                effective system for providing adequate representation 
                for indigent persons in capital cases, in compliance 
                with the standards formulated by the National 
                Commission on Capital Representation pursuant to 
                section 201(b) of the Innocence Protection Act of 2001.
            ``(2) Withholding formula.--The amount to be withheld under 
        paragraph (1) shall be, in the first fiscal year that a State 
        is not in compliance, 10 percent of any grant funds awarded 
        under this subtitle to such State and any unit of local 
        government appertaining thereto, and shall increase by 10 
        percent for each year of noncompliance thereafter, up to a 
        maximum of 60 percent.
            ``(3) Disposition of withheld funds.--Funds withheld under 
        this subsection from apportionment to any State or unit of 
        local government shall be allotted by the Attorney General and 
        paid to the States and units of local government receiving a 
        grant under this subtitle, other than any State referred to in 
        paragraph (1), and any unit of local government appertaining 
        thereto, in a manner equivalent to the manner in which the 
        allotment under this subtitle was determined.
    ``(b) Waiver of Withholding Requirement.--
            ``(1) In general.--The Attorney General may waive in whole 
        or in part the application of the requirement of subsection (a) 
        for any 1-year period with respect to any State, where 
        immediately preceding such 1-year period the Attorney General 
        finds that such State has made and continues to make a good 
        faith effort to comply with the standards formulated by the 
        National Commission on Capital Representation pursuant to 
        section 201(b) of the Innocence Protection Act of 2001.
            ``(2) Limitation on waiver authority.--The Attorney General 
        may not grant a waiver under paragraph (1) with respect to any 
        State for 2 consecutive 1-year periods.
            ``(3) Limitation on use of funds.--If the Attorney General 
        grants a waiver under paragraph (1), the State shall be 
        required to use the total amount of grant funds awarded to such 
        State or any unit of local government appertaining thereto 
        under this subtitle that would have been withheld under 
        subsection (a) but for the waiver to improve the capability of 
        such State to provide adequate representation in capital cases.
    ``(c) Report to Congress.--Not later than 180 days after the end of 
each fiscal year for which grants are made under this subtitle, the 
Attorney General shall submit to Congress a report that includes, with 
respect to each State that prescribes, authorizes, or permits the 
penalty of death for any offense--
            ``(1) a detailed description of such State's system for 
        providing representation to indigent persons in capital cases;
            ``(2) the amount of any grant funds withheld under 
        subsection (a) for such fiscal year from such State or any unit 
        of local government appertaining thereto, and an explanation of 
        why such funds were withheld; and
            ``(3) the amount of any grant funds released to such State 
        for such fiscal year pursuant to a waiver by the Attorney 
        General under subsection (b), and an explanation of why waiver 
        was granted.''.
    (b) Technical and Conforming Amendment.--The table of contents in 
section 2 of the Violent Crime Control and Law Enforcement Act of 1994 
is amended by inserting after the item relating to section 20109 the 
following:

``Sec. 20110. Standards for capital representation.''.

SEC. 204. EFFECT ON PROCEDURAL DEFAULT RULES.

    (a) In General.--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 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, if--
                    ``(A) the applicant was financially unable to 
                obtain adequate representation 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 the applicant did not waive representation 
                by counsel; and
                    ``(B) the State did not provide representation to 
                the applicant under a State system for providing 
                representation that satisfied the standards formulated 
                by the National Commission on Capital Representation 
                pursuant to section 201(b) of the Innocence Protection 
                Act of 2001.''.
    (b) No Retroactive Effect.--The amendments made by this section 
shall not apply to any case in which the relevant State court 
proceeding occurred before the end of the first fiscal year following 
the formulation of standards by the National Commission on Capital 
Representation pursuant to section 201(b) of the Innocence Protection 
Act of 2001.

SEC. 205. CAPITAL DEFENSE RESOURCE 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 Defense Resource 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; and
                            ``(iii) legal and administrative support 
                        and assistance to counsel; 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) 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, and shall ensure 
        coordination with grants administered by the State Justice 
        Institute pursuant to section 207A of the State Justice 
        Institute Act of 1984.''.

                  TITLE III--MISCELLANEOUS PROVISIONS

SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

    Section 2513(e) of title 28, United States Code, is amended by 
striking ``$5,000'' and inserting ``$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.''.

SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.

    Section 20105(b)(1) of the Violent Crime Control and Law 
Enforcement Act of 1994 (42 U.S.C. 13705(b)(1)) is amended by--
            (1) striking ``and'' at the end of subparagraph (A);
            (2) striking the period at the end of subparagraph (B) and 
        inserting ``; and''; and
            (3) adding at the end the following:
                    ``(C) provide assurances to the Attorney General 
                that the State, if it prescribes, authorizes, or 
                permits the penalty of death for any offense, has 
                established or will establish not later than 18 months 
                after the enactment of the Innocence Protection Act of 
                2001, effective procedures for--
                            ``(i) reasonably compensating persons found 
                        to have been unjustly convicted of an offense 
                        against the State and sentenced to death; and
                            ``(ii) investigating the causes of such 
                        unjust convictions, publishing the results of 
                        such investigations, and taking steps to 
                        prevent such errors in future cases.''.

SEC. 303. CERTIFICATION REQUIREMENT IN FEDERAL DEATH PENALTY 
              PROSECUTIONS.

    (a) In General.--Chapter 228 of title 28, United States Code, is 
amended by adding at the end the following:
``Sec. 3599. Certification requirement
    ``(a) Certification by Attorney General.--The Government shall not 
seek a sentence of death in any case brought before a court of the 
United States except upon the certification in writing of the Attorney 
General, which function of certification may not be delegated, that the 
Federal interest in the prosecution is more substantial than the 
interests of the State or local authorities.
    ``(b) Requirements.--A certification under subsection (a) shall 
state the basis on which the certification was made and the reasons for 
the certification.
    ``(c) State Interest.--In States where the imposition of a sentence 
of death is not authorized by law, the fact that the maximum Federal 
sentence is death does not constitute a more substantial interest in 
Federal prosecution.
    ``(d) Definition of State.--For purposes of this section, the term 
`State' includes a State of the United States, the District of 
Columbia, and any commonwealth, territory, or possession of the United 
States.
    ``(e) Rule of Construction.--This section does not create any 
rights, substantive or procedural, enforceable at law by any party in 
any matter civil or criminal.''.
    (b) Technical and Conforming Amendment.--The analysis for chapter 
228 of title 28, United States Code, is amended by adding at the end 
the following:

``3599. Certification requirement.''.

SEC. 304. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT POSSIBILITY OF 
              RELEASE.

    (a) Purpose.--The purpose of this section is to clarify that juries 
in death penalty prosecutions brought under the drug kingpin statute--
like juries in all other Federal death penalty prosecutions--have the 
option of recommending life imprisonment without possibility of 
release.
    (b) Clarification.--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. 305. RIGHT TO AN INFORMED JURY.

    Section 20105(b)(1) of the Violent Crime Control and Law 
Enforcement Act of 1994 (42 U.S.C. 13705(b)(1)), as amended by section 
302 of this Act, is amended by--
            (1) striking ``and'' at the end of subparagraph (B);
            (2) striking the period at the end of subparagraph (C) and 
        inserting ``; and''; and
            (3) adding at the end the following:
                    ``(D) provide assurances to the Attorney General 
                that in any capital sentencing proceeding occurring 
                after the date of enactment of the Innocence Protection 
                Act of 2001 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.''.

SEC. 306. 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 1999'' (December 2000, NCJ 184795), and shall also 
include the following additional categories of information, if such 
information can practicably be obtained:
            (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) The percentage of capital cases in which counsel is 
        retained by the defendant, and the percentage in which counsel 
        is appointed by the court.
            (4) 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.
            (5) 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.
            (6) The frequency with which various statutory aggravating 
        factors are invoked by the prosecution.
            (7) The percentage of cases in which a death sentence or a 
        conviction underlying a death sentence is vacated, reversed, or 
        set aside, and a short statement of the reasons therefore.
    (c) Request for Assistance.--In compiling the information referred 
to in subsection (b), the Attorney General shall, when necessary, 
request assistance from State and local prosecutors, defense attorneys, 
and courts, as appropriate. Requested assistance, whether provided or 
denied by a State or local official or entity, shall be noted in the 
reports referred to in subsection (a).
    (d) 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. 307. 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.
                                 <all>