[Congressional Record Volume 146, Number 6 (Tuesday, February 1, 2000)]
[Senate]
[Pages S198-S200]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     THE GROWING CRISIS IN THE ADMINISTRATION OF CAPITAL PUNISHMENT

  Mr. LEAHY. Mr. President, I wish to call attention to a growing 
national crisis in the administration of capital punishment. People of 
good conscience can and will disagree on the morality of the death 
penalty. But I am confident that we should all be able to agree that a 
system that may sentence one innocent person to death for every seven 
it executes has no place in a civilized society, much less in 21st 
century America. But that is what the American system of capital 
punishment has done for the last 24 years.
  A total of 610 people have been executed since the reinstatement of 
capital punishment in 1976. During the same time, according to the 
Death Penalty Information Center, 85 people have been found innocent 
and were released from death row. These are not reversals of sentences, 
or even convictions on technical legal grounds; these are people whose 
convictions have been overturned after years of confinement on death 
row because it was discovered they were not guilty. Even though in some 
instances they came within hours of being executed, it was eventually 
determined that, whoops, we made a mistake; we have the wrong person.
  What does this mean? It means that for every seven executions, one 
person has been wrongly convicted. It means that we could have more 
than three innocent people sentenced to death each year. The phenomenon 
is not confined to just a few States; the many exonerations since 1976 
span more than 20 different States. And of those who are found 
innocent--not released because of a technicality, but actually found 
innocent--what is the average time they spent on death row, knowing 
they could be executed at any time? What is the average time they spent 
on death row before somebody said, we have the wrong person? Seven and 
a half years.

  This would be disturbing enough if the eventual exonerations of these 
death row inmates were the product of reliable and consistent checks in 
our legal system, if we could say as Americans, all right, you may 
spend 7\1/2\ years on death row, but at least you have the comfort of 
knowing that we are going to find out you are innocent before we 
execute you. It might be comprehensible, though not acceptable, if we 
as a society lacked effective and relatively inexpensive means to make 
capital punishment more reliable. But many of the exonerated owe their 
lives to fortuity and private heroism, having been denied commonsense 
procedural rights and inexpensive modern scientific testing 
opportunities--leaving open the very real possibility that there have 
been a number of innocent people executed over the last few decades who 
were not so fortunate.
  Let me give you a case. Randall Dale Adams. Here is a man who might 
have been routinely executed had his case not attracted the attention 
of a filmmaker, Earl Morris. His movie, ``The Thin Blue Line,'' 
shredded the prosecution's case and cast a national spotlight on Adams' 
innocence.
  Consider the case of Anthony Porter. Porter spent 16 years on death 
row. That is more years than most Members of the Senate have served. He 
spent 16 years on death row. He came within 48 hours of being executed 
in 1998, but he was cleared the following year. Was he cleared by the 
State? No. He was cleared by a class of undergraduate journalism 
students at Northwestern University, who took on his case as a class 
project. That got him out. Then the State acknowledged that it had the 
wrong person, that Porter had been innocent all along. He came within 
48 hours of being executed, and he would have been executed had not 
this journalism class decided to investigate his case instead of doing 
something else. Now consider the cases of the unknown and the unlucky, 
about whom we may never hear.
  Last year, former Florida Supreme Court Justice Gerald Kogan said he 
had ``no question'' that ``we certainly have, in the past, executed . . 
. people who either didn't fit the criteria for execution in the State 
of Florida, or who, in fact, were, factually, not guilty of the crime 
for which they have been executed.'' This is not some pie-in-the-sky 
theory. Justice Kogan was a homicide detective and a prosecutor before 
eventually rising to Chief Justice.
  This crisis has led the American Bar Association and a growing number 
of State legislators to call for a moratorium on executions until the 
death penalty can be administered with less risk to the innocent. This 
week, the Republican Governor of Illinois, George Ryan, announced he 
plans to block executions in that State until an inquiry has been 
conducted into why more death row inmates have been exonerated than 
executed since 1977 when Illinois reinstated capital punishment. Think 
of that. More death row inmates exonerated than executed.
  Governor Ryan is someone who supports the death penalty. But I agree 
with him in bringing this halt. He said: ``There is a flaw in the 
system, without question, and it needs to be studied.'' The Governor is 
absolutely right. I rise to bring to this body the debate over how we 
as a nation can begin to reduce the risk of killing the innocent.
  I hope that nobody of good faith--whether they are for or against the 
death penalty--will deny the existence of a serious crisis. Sentencing 
innocent women and men to death anywhere in our country shatters 
America's image in the international community. At the very least, it 
undermines our leadership in the struggle for human rights. But, more 
importantly, the individual and collective conscience of decent 
Americans is deeply offended and the faith in the working of our 
criminal justice system is severely damaged. So the question we should 
debate is, What should be done?

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  Some will be tempted to rely on the States. The U.S. Supreme Court 
often defers to ``the laboratory of the States'' to figure out how to 
protect criminal defendants. After 24 years, let's take a look at that 
lab report.
  As I already mentioned, Illinois has now had more inmates released 
from death row than executed since the death penalty was reinstated. 
There have been 12 executions, and 13 times they have said: Whoops, 
sorry. Don't pull the switch. We have the wrong person. This has 
happened four times in the last year alone.
  In Texas, the State that leads the Nation in executions, courts have 
upheld death sentences in at least three cases in which the defense 
lawyers slept through substantial portions of the trial. The Texas 
courts said that the defendants in these cases had adequate counsel. 
Adequate counsel? Would any one of us if we were in a taxicab say we 
had an adequate driver who was asleep at the wheel? What we are saying 
is with a person's life at stake the defense lawyer slept through the 
trial, and the Texas courts say that is pretty adequate.
  Meanwhile, in the past few years, the States have followed the 
Federal lead in expanding their defective capital punishment systems, 
curtailing appeal and habeas corpus rights, and slashing funding for 
indigent defense services. The crisis can only get worse.
  The States have had decades to fix their capital punishment systems, 
yet the best they have managed is a system fraught with arbitrariness 
and error--a system where innocent people are sentenced to death on a 
regular basis, and it is left not to the courts, not to the States, not 
to the Federal Government, but to filmmakers and college undergraduates 
to correct the mistakes. History shows that we cannot rely on local 
politics to implement our national conscience on such fundamental 
points as the execution of the innocent.
  What about the Supreme Court? In a 1993 case, it could not even make 
up its mind whether the execution of an innocent person would be 
unconstitutional. Do a referendum on that one throughout the Nation. 
Ask people in this Nation of a quarter billion people whether they 
think executing an innocent person should be considered constitutional 
or unconstitutional. Most in this country have no doubt that it would 
be unconstitutional, but that really does not matter: executing an 
innocent person is abhorrent--it is morally wrong. Whether you support 
the death penalty or not, executing an innocent person is wrong, and we 
in this body have the moral duty to express and implement America's 
conscience. We should be the Nation's conscience. The buck should stop 
in this Chamber where it always stops in times of national crisis.
  How do we begin to stem the crisis? I have been posing this question 
to experts across the country for nearly a year. There is a lot of 
consensus over what must be done. In the next few weeks, I will 
introduce legislation that will address some of the most urgent 
problems in the administration of capital punishment.
  Two problems in particular require our immediate attention. First, we 
need to ensure that defendants in capital cases receive competent legal 
representation at every stage in their case. Second, we have to 
guarantee an effective forum for death row inmates who may be able to 
prove their innocence.
  In our adversarial system of justice, effective assistance of counsel 
is essential to the fair administration of justice. It is the principal 
bulwark against wrongful conviction.
  I know this from my own experience as a prosecutor. It is the best 
way to reduce the risk that a trial will be infected by constitutional 
error, resulting in reversal, retrial, cost, delay, and repeated 
ordeals for the victim's family. Most prosecutors will tell you they 
would much prefer to have good counsel on the other side because there 
is less apt to be mistakes, there is less apt to be reversible error, 
and there is far more of a chance that you end up with the right 
decision.
  Most defendants who face capital charges are represented by court-
appointed lawyers. Unfortunately, the manner in which defense lawyers 
are selected and compensated in death penalty cases frequently fails to 
protect the defendant's rights. Some States relegate these cases to 
grossly unqualified lawyers willing to settle for meager fees. While 
the Federal Government pays defense counsel $125 an hour for death 
penalty work, the hourly rate in many States is $50 or less, and some 
States place an arbitrary and usually unrealistically low cap on the 
total amount a court-appointed attorney can bill.
  New York recently slashed pay for counsel in capital cases by as much 
as 50 percent. They might say they are getting their money's worth if 
they cut out all the money for defense counsel. The conviction rate is 
probably going to shoot up. Let me tell you what else will go up--the 
number of innocent people who will be put to death.
  Congress has done its part to make a bad situation worse. In 1996, 
Congress defunded the death penalty resource centers. This has sharply 
increased the chances that innocent persons will be executed.
  You get what you pay for. Those who are on death row have found their 
lives placed in the hands of lawyers who are drunk during the trial--in 
some instances, lawyers who never bothered to meet their client before 
the trial; lawyers who never bothered to read the State death penalty 
statute; lawyers who were just out of law school and never handled a 
criminal case; and lawyers who were literally asleep on the job.
  Even some of our best lawyers, diligent, experienced litigators, can 
do little when they lack funds for investigators, experts, or 
scientific testing that could establish their client's innocence. 
Attorneys appointed to represent capital defendants often cannot recoup 
even their out-of-pocket expenses. They are effectively required to 
work at minimum wag or below while funding their client's defense out 
of their own pockets.
  Although the States are required to provide criminal defendants with 
qualified legal counsel, those who have been saved from death row and 
found innocent were often convicted because of attorney error. They 
might not have had postconviction review because their lawyer failed to 
meet a filing deadline. An attorney misses a deadline by even 1 day, 
and his death row client may pay the price with his life.
  Let me be clear what I am talking about. I am not suggesting that 
there is a universal right to Johnnie Cochran's services. The O.J. 
Simpson case has absolutely nothing to do with the typical capital 
case, in which one or possibly two underfunded and underprepared 
lawyers try to cobble together a defense with little or no scientific 
or expert evidence and the whole process takes less than a week. These 
are two extremes. You go from the Simpson case, where the judge let the 
whole thing get out of control and we had a year-long spectacle, to the 
typical death penalty case which is rushed through without preparation 
in a matter of days. Somewhere there must be a middle ground.

  Let me give three examples of some of the worst things that have 
happened--but not untypical.
  Ronald Keith Williamson. In 1997, a Federal appeals court overturned 
Williamson's conviction on the basis of ineffectiveness of counsel. The 
court noted that the lawyer, who had been paid a total of $3,200 for 
the defense, had failed to investigate and present a fact to the jury. 
What was that fact? Somebody else confessed to the crime. If I were the 
defense attorney, I think one of the things that I would want to bring 
to the jury is the fact that somebody else confessed to the crime; 
Williamson's lawyer did not bother. Then, two years after the appeals 
court decision, DNA testing ruled out Williamson as the killer and 
implicated another man--a convicted kidnapper who had testified against 
Williamson at trial. Of course, he did. He is the one who committed the 
crime.
  Let's next consider George McFarland. According to the Texas Court of 
Criminal Appeals, McFarland's lawyer slept through much of his 1992 
trial. He objected to hardly anything the prosecution did. Here is how 
the Houston Chronicle described what happened as McFarland stood on 
trial for his life. This is not for shoplifting. He is on trial for his 
life.
  Let me quote from the Houston Chronicle:

       Seated beside his client . . . defense attorney John Benn 
     spent much of Thursday

[[Page S200]]

     afternoon's trial in apparent deep sleep. His mouth kept 
     falling open and his head lolled back on his shoulders, and 
     then he awakened just long enough to catch himself and sit 
     upright. Then it happened again. And again. And again.
       Every time he opened his eyes, a different prosecution 
     witness was on the stand describing another aspect of the 
     Nov. 19, 1991, arrest of George McFarland in the robbery-
     killing of grocer Kenneth Kwan.
       When state District Judge Doug Shaver finally called a 
     recess, Benn was asked if he truly had fallen asleep during a 
     capital murder trial. ``It's boring,''' the 72-year-old 
     longtime Houston lawyer explained. . . . Court observers said 
     Benn seems to have slept his way through virtually the entire 
     trial.
  Unfortunately for McFarland, Texas' highest criminal court, several 
of whose members were coming up for reelection, concluded that this 
constituted effective criminal representation.
  I guess they felt because the lawyer was in the courtroom, even 
though sound asleep, that would be effective representation. If you 
read the decision they probably would have ruled the same way if he had 
been at home sound asleep, so long as he had been appointed at some 
time.
  McFarland is still on death row for a murder he insists he did not 
commit, on the basis of evidence widely reported by independent 
observers to be weak.
  Then we have Reginald Powell, a borderline mentally retarded man who 
was 18 at the time of the crime. Mr. Powell was eventually executed. 
Why? Because he accepted his lawyer's advice to reject a plea bargain 
that would have saved his life.
  There were a number of attorney errors at the trial. The advice he 
received seems to be very bad advice. Some may feel this advice, the 
advice given to this 18-year-old mentally retarded man, was affected by 
the flagrantly unprofessional conduct of the attorney, a woman twice 
Powell's age, who conducted a secret jailhouse sexual relationship with 
him during the trial. Despite this obvious attorney conflict of 
interest, Powell's execution went ahead in Missouri a year ago.
  I ask each Member of the Senate when you go home tonight, or when you 
talk to your constituents, and when you consider the bill I will be 
introducing, to remember these cases and consult your conscience to ask 
whether these examples represent the best of 21st century American 
justice.
  The judge who presided over McFarland's trial summed up the Texas 
court's view of the law quite accurately when he reasoned that, while 
the Constitution requires a defendant to be represented by a lawyer, it 
``doesn't say the lawyer has to be awake.'' If your conscience says 
otherwise, maybe we ought to do something.
  My proposal rests on a simple premise: States that choose to impose 
capital punishment must be prepared to foot the bill. They should not 
be permitted to tip the scales of justice by denying capital defendants 
competent legal services. We have to do everything we can to ensure the 
States are meeting their constitutional obligations with respect to 
capital representation.
  Can miscarriages of justice happen when defendants receive adequate 
representation? Yes, they can still happen. So I think it is critical 
to ensure that death row inmates have a meaningful opportunity--not a 
fanciful opportunity but a meaningful opportunity--to raise claims of 
innocence based on newly discovered evidence, especially if it is 
evidence that is derived from scientific tests not available at the 
time of the trial.
  Perhaps more than any other development, improvements in DNA testing 
have exposed the fallibility of the legal system. In the last decades, 
scores of wrongfully convicted people have been released from prison--
including many from death row--after DNA testing proved they could not 
have committed the crimes for which they were convicted. In some cases 
the same DNA testing that vindicated the innocent helped catch the 
guilty.
  Most recently, DNA testing exonerated Ronald Jones. He spent close to 
8 years on death row for a 1985 rape and murder that he did not commit. 
Illinois prosecutors dropped the charges against Jones on May 18, 1999, 
after DNA evidence from the crime scene excluded him as a possible 
suspect.
  It was also DNA testing that eventually saved Ronald Keith 
Williamson's life, as I discussed earlier. He spent 12 years as an 
innocent man on Oklahoma's death row.
  Can you imagine how any one of us would feel, day after day for 12 
years, never knowing if we were just a few hours or a few days from 
execution, locked up on death row for a crime we did not commit?
  Some of the major hurdles to postconviction DNA testing are laws 
prohibiting introduction of new evidence--laws that have tightened as 
death penalty supporters have tried to speed executions by limiting 
appeals. Only two States, New York and Illinois, require the 
opportunity for inmates to require DNA testing where it could result in 
new evidence of innocence. Elsewhere, inmates may try to get DNA 
evidence for years, only to be shut out by courts and prosecutors.

  What possible reason could there be to deny inmates the opportunity 
to prove their innocence--and perhaps even help identify the real 
culprits--through new technologies? DNA testing is relatively 
inexpensive. But no matter what it costs, it is a tiny price to pay to 
make sure you have the right person.
  The National Commission on the Future of DNA Evidence, a Federal 
panel established by the Justice Department and comprised of law 
enforcement, judicial, and scientific experts, issued a report last 
year urging prosecutors to consent to postconviction DNA testing, or 
retesting, in appropriate cases, especially if the results could 
exonerate the defendant.
  In 1994, we set up a funding program to improve the quality and 
availability of DNA analysis for law enforcement identification 
purposes. The Justice Department has handed out tens of millions of 
dollars to States under this program. Last year alone, we appropriated 
another $30 million for DNA-related grants to States. That is an 
appropriate use of Federal funds. But we should not pass up the promise 
of truth and justice for both sides of our adversarial system that DNA 
evidence holds out. We at least ought to require that both sides have 
it available.
  By reexamining capital punishment in light of recent exonerations, we 
can reduce the risk that people will be executed for crimes they did 
not commit and increase the probability that the guilty will be brought 
to justice. We can also help to make sure the death penalty is not 
imposed out of ignorance or prejudice.
  I learned, first as a defense attorney and then as a prosecutor, that 
the pursuit of justice obliges us not only to convict the guilty, but 
also to exonerate the wrongly accused and convicted. That obligation is 
all the more urgent when the death penalty is involved.
  Let's not have the situation where, today in America, it is better to 
be rich and guilty than poor and innocent. That is not equal justice. 
That is not what our country stands for.
  I was proud to be a defense attorney. I was very proud to be a 
prosecutor. I have often said it was probably the best job I ever had. 
But there was one thought I always had every day that I was a 
prosecutor. I would look at the evidence over and over again and I 
would ask myself, not can I get a conviction on this charge, but will I 
be convicting the right person. I had cases where I knew I could get a 
conviction, but I believed we had the wrong person, and I would not 
bring the charge. I think most prosecutors feel that way. But sometimes 
in the passion of a highly publicized, horrendous murder, we can move 
too fast.
  I urge Senators on both sides of the aisle, both those who support 
the death penalty and those who oppose it, to join in seeking ways to 
reduce the risk of mistaken executions.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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