[Congressional Record Volume 146, Number 69 (Wednesday, June 7, 2000)]
[Senate]
[Pages S4673-S4684]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Smith of Oregon, Ms. Collins, Mr. 
        Levin, Mr. Jeffords, Mr. Feingold, Mr. Moynihan, Mr. Akaka, Mr. 
        Kerrey, and Mr. Wellstone):
  S. 2690. A bill to reduce the risk that innocent persons may be 
executed, and for other purposes; to the Committee on the Judiciary.


                  THE INNOCENCE PROTECTION ACT OF 2000

 Mr. LEAHY. Mr. President, a few months ago, I came to this 
floor to draw attention to a growing national crisis in the 
administration of capital punishment and to suggest some solutions. You 
will recall some of the shocking facts I described:

       For every 7 people executed, 1 death row inmate is shown 
     some time after conviction to be innocent of the crime.
       Many of those exonerated have come within hours of being 
     executed, and many have spent a decade or more in jail before 
     they were given a fair opportunity to establish their 
     innocence.
       Capital defendants are frequently represented by lawyers 
     who lack the funds or the competence to do the job, or who 
     have been disbarred or suspended for misconduct, and, from 
     time to time, by lawyers who sleep through the trial, but the 
     courts turn a blind eye.
       Inexpensive and practically foolproof means of proving 
     innocence are often denied to defendants.

  The saddest fact of all, to me, is that the society facing this 
crisis is not a medieval one; it is America, today, in the 21st 
Century. As the Governor of Illinois told us when he placed a 
moratorium on the death penalty in his State earlier this year, 
something urgently needs to be done to remedy this situation. That is 
why I have been talking with Senators on both sides of the aisle and 
all sides of the capital punishment debate. That is why I have been 
searching for ways to reduce the risk of mistaken executions.
  That is why I am so pleased that today, with my good friend, the 
junior

[[Page S4674]]

Senator from Oregon (Senator Gordon Smith), we are introducing the 
bipartisan Innocence Protection Act of 2000. This bill is a carefully 
crafted package of criminal justice reforms designed to protect the 
innocent and to ensure that if the death penalty is imposed, it is the 
result of informed and reasoned deliberation, not politics, luck, bias 
or guesswork.
  Every American child is taught that justice is blind. It is important 
to remember what justice is supposed to be blind to. Justice should 
never be blind to the truth, it should never be blind to the evidence, 
and it should never be blind to the teachings of modern science. What 
justice should be blind to is ideology, politics, race and money.
  Too often in this chamber, we find ourselves dividing along party or 
ideological lines. The bill that Senator Smith and I are introducing 
today is not about that, and it is not about whether in the abstract, 
you favor or disfavor the death penalty. It is about what kind of 
society we want America to be in the 21st Century.
  I am optimistic about America's future. I have become all the more 
optimistic in the past few months as I have seen an outpouring of 
support across the political spectrum and across the country for 
common-sense measures to reduce the risk of executing the innocent.
  Today, Senator Smith and I are joined by Senators from both sides of 
the aisle, by some who support capital punishment and by others who 
oppose it. On the Republican side, I want to thank my friend Senator 
Susan Collins of Maine and my fellow Vermonter, Senator Jim Jeffords. 
On the Democratic side, Senators Levin, Feingold, Moynihan, Akaka, 
Kerrey, and Wellstone. I also want to thank our House sponsors William 
Delahunt and Ray LaHood, along with their 39 cosponsors, both 
Democratic and Republican. Here on Capitol Hill it is our job to 
represent Americans. The scores of legislators who have sponsored this 
legislation clearly do represent Americans, both in their diversity and 
in their readiness to work together for common-sense solutions.
  The outpouring of bipartisan support we have seen in Congress 
reflects an emerging public consensus. Opinion polls show Americans 
divided on the death penalty in the abstract. But they show 
overwhelmingly that Americans will not tolerate the execution of 
innocent people, and that Americans expect their justice system to 
provide everyone with a fair trial and a competent lawyer. A recent 
Gallup Poll found that 92 percent of Americans believe that people 
convicted before modern advances in DNA technology should be given the 
opportunity to obtain DNA testing if such tests might show their 
innocence.
  I am also encouraged by the growing chorus of calls for reform of our 
capital punishment system by criminal justice experts and respected 
opinion leaders nationwide. George Will wrote in a April 6th column 
that ``skepticism is in order'' when it comes to capital punishment. 
Another conservative columnist, Bruce Fein, wrote in The Washington 
Times on April 25th:

       A decent respect for life . . . demands scrupulous concern 
     for the reliability of verdicts in capital punishment trials. 
     Otherwise, the death penalty game is not worth the gamble of 
     executing the innocent--a shameful stain on any system of 
     justice--and life sentences (perhaps in solitary confinement) 
     should be the maximum.

       Mr. Fein writes as one who served as a senior Justice 
     Department official in the Reagan Administration.
  More recently, on May 11th, the Constitution Project at Georgetown 
University Law Center established a blue-ribbon National Committee to 
Prevent Wrongful Executions, comprised of supporters and opponents of 
the death penalty, Democrats and Republicans, including six former 
State and Federal judges, a former U.S. Attorney, two former State 
Attorneys General, and a former Director of the FBI. According to its 
mission statement, this Committee is ``united in [its] profound concern 
that, in recent years, and around the country, procedural safeguards 
and other assurances of fundamental fairness in the administration of 
capital punishment have been significantly diminished.'' Many of the 
concerns that the Committee has raised are addressed in the legislation 
that Senator Smith and I are introducing today.

  Just yesterday, the editors of The Washington Times noted that ``the 
increased use of DNA analysis has in fact revealed some serious flaws 
in the way the justice system exacts the supreme penalty,'' and 
succinctly expressed the common sense view of nine out of ten Americans 
and the basic point that underlies our legislation: ``Surely no one 
could reasonably object to making sure we execute only the guilty.''
  I ask unanimous consent that The Washington Times editorial be 
included in the Record at this point, together with the articles by 
George Will and Bruce Fein, and editorials dated February 19 and 28 
from the New York Times and The Washington Post, both praising the 
Innocence Protection Act.
  As I describe some of the major reforms proposed by our legislation, 
I ask you to consider these issues from the perspective of a capital 
juror, an ordinary citizen who is asked by his government to do one of 
the toughest things a citizen can do: sit in judgment on another 
person's life. You would not want to make the wrong decision. You would 
want the process to work so that you could make the right decision.
  We need to enact real reforms to combat the very real risk in America 
today that an innocent person is being executed. I will now describe 
some of the major reforms proposed by our legislation.
  More than any other development, improvements in DNA testing have 
provided the critical evidence to exonerate innocent people. In the 
last decade, 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 crime for which they were convicted. 
In some cases the same DNA testing that vindicated the innocent helped 
catch the guilty.
  As I already mentioned, 92 percent of Americans agree that we need to 
make DNA testing available in every appropriate case. But this 
legislation is not about public opinion polls--it is about saving 
innocent lives.
  A few months ago, I met Kirk Bloodsworth, a former Marine who was 
convicted and sentenced to death in Maryland for a crime that he did 
not commit. Nine years later, DNA testing conclusively established his 
innocence.
  On the same day, I met Clyde Charles. He spent 9 years pleading with 
the State of Louisiana for the DNA testing that eventually exonerated 
him. He missed the childhood of his daughter, he contracted diabetes 
and tuberculosis while in prison, and both of his parents died before 
his release.
  Just last Wednesday, the Governor of Texas pardoned A.B. Butler, who 
served 17 years of a 99-year sentence for a sexual assault that he did 
not commit before he was finally cleared by DNA testing. Butler spent 
10 years trying to have DNA testing done in his case.
  One day later, the Governor of Virginia ordered new DNA testing for 
Earl Washington, a retarded man convicted of a rape-murder in 1982.
  There are still significant numbers of convicted men and women in 
prisons throughout the country whose trials preceded modern DNA 
testing. If history is any guide, then some of these individuals are 
innocent of any crime.
  If DNA testing can help establish innocence, there is no reason to 
deny testing, and every reason to grant it. This is not about guilty 
people trying to get off on legal technicalities. This is about 
innocent people trying to prove their innocence--and being thwarted by 
legal technicalities. Our bill will allow retroactive tests for people 
tried before DNA technology was available to them, and eliminate the 
procedural bars that may prevent the introduction of new, exculpatory 
DNA evidence. Our bill will also ensure that inmates are notified 
before a State destroys a rape kit or other biological evidence that 
may, through DNA testing, prove that an inmate was wrongfully 
convicted.
  What possible reason could there be to deny people access to the 
evidence--often the only evidence--that could prove their innocence? 
Now that we have DNA fingerprinting that can prove a person's 
innocence, why should we as a society be willfully blind to the truth?
  The sole argument I have heard advanced against the Leahy-Smith 
proposal is that it is somehow overly broad. As best I can understand 
this objection, the point seems to be that in

[[Page S4675]]

some cases, DNA evidence will only confirm the jury's guilty verdict. 
That is the point that Virginia prosecutors have advanced in opposing 
DNA testing for death row inmate Derek Barnabei. But as the Washington 
Post pointed out in a March 20th editorial about the Barnabei case, the 
possibility that DNA testing will confirm an inmate's guilt is no 
reason to deny testing:

       It is hard to see why a state, before putting someone to 
     death, would be unwilling to demonstrate a jury verdict's 
     consistency with all of the evidence. Indeed, this is 
     precisely the type of case in which the state should have no 
     choice. Under [the Innocence Protection Act], states would be 
     obligated in such circumstances to allow post-conviction DNA 
     testing. Such a law would not merely offer a layer of 
     protection to innocent people but would increase public 
     confidence in the convictions of guilty people.

  I am grateful for the Post's endorsement.
  As the Post has pointed out, this is a common sense reform. As 
opinion polls have shown, the idea of ensuring DNA testing is available 
in appropriate cases enjoys the support of the vast majority of 
Americans. And as the recent cases that I have discussed make clear, 
this is a matter of national urgency. I hope we can move forward 
expeditiously.
  Post-conviction DNA testing is an essential safeguard that can save 
innocent lives when the trial process has failed to uncover the truth. 
As the Governor of New York has recognized, DNA testing also serves as 
a window into the systemic flaws of our capital punishment apparatus. 
In May, Governor Pataki proposed the creation of a panel to investigate 
the facts behind DNA exonerations and to determine what went wrong.
  When DNA uncovers one miscarriage of justice after another, it is 
neither just nor sensible to stop at making post-conviction DNA testing 
more available. It is unjust because innocent people should not have to 
wait for years after trial to be exonerated and freed. It is not 
sensible because society should not have to wait for years to know the 
truth. When dozens of innocent people are being sentenced to death, and 
dozens of guilty people are working free because the State has 
convicted the wrong person, we must ask ourselves what went wrong in 
the trial process, and we must take what steps we can to make sure it 
does not happen again.
  There is a recurring theme in wrongful conviction cases--incompetent 
and grossly underpaid defense counsel. That theme is well illustrated 
by the case of Federico Macias. He spent nine years on Texas's death 
row and came within two days of execution because his trial lawyer did 
almost nothing to prepare for trial. No doubt, being paid less than $12 
an hour was a disincentive for the lawyer to conduct a more thorough 
investigation.
  This lawyer failed to call available witnesses who could have refuted 
the State's case, and based his trial decisions on a fundamental 
misunderstanding of Texas law. The lawyer also admitted he did no 
investigation at all for the sentencing phase. His only preparation was 
to speak to his client and his client's wife during the lunch break of 
the sentencing proceeding.
  Macias was eventually cleared of all charges and released from 
prison, thanks to volunteer work by a Washington lawyer who intervened 
just before the scheduled execution. Here is what the Federal Court of 
Appeals had to say when it overturned Macias's conviction:

       We are left with the firm conviction that Macias was denied 
     his constitutional right to adequate counsel in a capital 
     case in which actual innocence was a close question. The 
     state paid defense counsel $11.84 per hour. Unfortunately, 
     the justice system got only what it paid for.

  Federico Macias's case was not unique. In the Texas criminal justice 
system, there is a whole category of capital cases known as the 
sleeping lawyer cases, to which the majority of the Texas Court of 
Criminal Appeals has responded with apathy. This attitude was 
chillingly conveyed by one Texas judge who reasoned that, while the 
Constitution requires a defendant to be represented by a lawyer, it 
``doesn't say the lawyer has to be awake.''
  But this is not just a Texas problem, this is a nationwide problem. 
In case after case across the country, capital defendants have found 
their lives placed in the hands of lawyers who are hopelessly 
incompetent--lawyers who were drunk during the trial; lawyers who never 
bothered to investigate the case or even meet with their client before 
trial; and lawyers who were suspended or disbarred.
  Oklahoma spent all of $3,200 on the defense of Ronald Keith 
Williamson; it got what it paid for when Williamson's lawyer failed to 
investigate and present to the jury a simple fact--the fact that 
another man had confessed to the murder. Both Williamson and his 
codefendant were eventually cleared of any crime.
  In Illinois, Dennis Williams was defended by a lawyer who was 
simultaneously defending himself in disbarment proceedings. Williams 
was eventually exonerated in 1996, after 18 years on death row, with 
the help of three journalism students from Northwestern University.
  That is not how the American adversarial system of criminal justice 
is meant to work. Americans on trial for their lives should not be 
condemned to rely on sleeping lawyers, drunk lawyers, disbarred 
lawyers, or lawyers who do not have the resources to do the job. In our 
society, lawyers and journalists both serve important fact-finding 
functions. But, as one of the Northwestern University journalism 
students so aptly said after proving the innocence of yet another death 
row inmate, Anthony Porter, ``Twenty-one-year-olds are not supposed to 
be responsible for finding the innocent people on death row.''
  The need for competent and adequately funded lawyers to make our 
adversarial system work is not a novel insight, and the lack of such 
lawyers and funding is not a novel discovery. In 1991, Retired Chief 
Justice Harold Clarke of Georgia told the Georgia State Bar that:

       Providing lawyers for poor people accused of crimes is a 
     state obligation. The Constitution teaches us that. But more 
     important, common sense and human decency tell us that. Yet 
     we haven't listened to those voices.

  In repeated resolutions dating back to the 1980s, the Conference of 
Chief Justices has urged States to do more to ensure that capital 
defendants are provided quality representation. In 1995, for example, 
the Chief Justices resolved that each State should ``establish 
standards and a process that will assure the timely appointment of 
competent counsel, with adequate resources, to represent defendants in 
capital cases at each stage of such proceedings.''
  As we enter the 21st century, a few States have heeded this advice. 
But many are still not listening to the voices of the people who know 
first hand what a mockery incompetent and underfunded defense lawyers 
can make of our criminal justice system. I have described two cases, 
from Texas and Oklahoma, in which the State grossly underfunded 
appointed counsel and got what it paid for. There are many more 
examples, including an Alabama case within the past year in which the 
court, after a full trial, limited the fee for investigating and 
defending against a charge of capital murder to about $4,000. After 
paying his investigator and paralegal, the lawyer pocketed $1,212, 
which worked out to $5.05 an hour--less than the minimum wage.

  We should not sit back and rely on 21-year-old journalism students to 
save innocent people from execution. And a quarter of a century of 
experience with the death penalty since the Supreme Court restored it 
in 1976 teaches us that we cannot sit back and rely on the States to 
provide adequate counsel to those whom they seek to execute.
  We in Congress can never guarantee that the innocent will not be 
convicted. But we have a responsibility, at a minimum, to ensure that 
when people in this country are on trial for their lives, they will be 
defended by lawyers who meet reasonable minimum standards of competence 
and who have sufficient funds to investigate the facts and prepare 
thoroughly for trial. That goal can be achieved by cooperation between 
the States and the Federal Government whereby we give the States money 
to fund their criminal justice systems conditioned on their meeting a 
floor of minimum standards, and leave the States free to improve on 
those standards if they are so inclined. That is what our bill seeks to 
achieve.
  What do we owe to the innocent people who are able to win their 
release

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from prison? How do we compensate them for all the years they spent 
behind bars, sometimes on death row, for all the lost wages, for all 
the pain and suffering. In most cases, there is no compensation, or at 
least not much. Federal law provides a miserly $5,000 in cases of 
unjust imprisonment, regardless of the time served. In the case of 
Clyde Charles, who spent 18 years in Louisiana's Angola prison, that 
would come out to about 75 cents a day. Is that what society owes to 
Clyde Charles, for the walls placed between him and his family for 18 
years, for missing his daughter's childhood, and for the diabetes and 
tuberculosis he contracted in prison? Does that seem about right--75 
cents a day?
  How about nothing at all? In 36 States, people who have been unjustly 
convicted and incarcerated for crimes they did not commit are barred 
from recovering any damages against the State. Louisiana, which 
destroyed the life of Clyde Charles, has no compensation statute. The 
States that have compensation statutes generally put a cap on payments, 
although none sets the cap as low as the current Federal cap of $5,000.
  Let us step back and put this situation in perspective. A few years 
ago, a Maryland jury found that three young men had been falsely 
imprisoned by a security guard at an Eddie Bauer clothing store. The 
guard detained these men for about 10 minutes on suspicion of 
shoplifting, and forced one of them to remove his shirt. How much did 
the jury award for those 10 minutes of false imprisonment? $1 million.
  Now compare what happened to Walter McMillian. In 1986, in a small 
town in Alabama, an 18-year-old white woman was shot to death. Walter 
McMillian was a black man who lived in the next town. From the day of 
his arrest, McMillian was placed on death row. No physical evidence 
linked him to the crime, and several people testified at the trial that 
he could not have committed the murder because he was with them all 
day. All three witnesses who connected McMillian with the murder later 
recanted their testimony. The one supposed ``eyewitness'' said that 
prosecutors had pressured him to implicate McMillian in the crime.
  The jury in the trial recommended a life sentence, but the judge 
overruled this recommendation and sentenced McMillian to death. His 
case went through four rounds of appeal, all of which were denied. New 
attorneys, not paid by the State of Alabama, voluntarily took over the 
case and eventually found that the prosecutors had illegally withheld 
exculpatory evidence. A story about the case appeared on 60 Minutes in 
November 1992. Finally, the State agreed to investigate its earlier 
handling of the case and admitted that a grave mistake had been made. 
McMillian was freed into the welcoming arms of his family and friends 
on March 3, 1993.
  Despite many years of litigation, McMillian has never been given any 
recompense for the years he was unjustly held on death row. His 
attorney has taken the issue of just compensation all the way to the 
U.S. Supreme Court, but to no avail.
  Let us take another example in another State. In Oklahoma, 4 inmates 
have been exonerated by DNA testing over the past few years. When you 
add it up, they spent about 40 years in prison. Two of them were on 
death row. One came within 5 days of execution. None has received 
compensation--not a dime.
  Putting one's life back together after such an experience is 
difficult enough, even with financial support. Without such support, a 
wrongly convicted person might never be able to establish roots that 
would allow him to contribute to society.
  We need to do more to help repair the lives that are shattered by 
wrongful convictions. The Innocence Protection Act does this by raising 
the Federal cap on compensation, and by pushing the States to provide 
meaningful compensation to any person who is unjustly convicted and 
sentenced to death.
  Money damages will never compensate for the mental anguish of being 
falsely convicted, for the lost years, or for the day-to-day brutality 
and deprivations of prison. But we must do what we can. Society owes a 
moral debt to the wrongfully imprisoned; that debt should be paid.
  Finally, we as a Nation need to go back to first principles when it 
comes to deciding who is eligible for the death penalty. The United 
States stands alongside Iran, Nigeria, Pakistan, and Saudi Arabia as 
the only nations still executing people for crimes committed as 
juveniles. Is this the company that we want to keep?
  The execution of juvenile offenders is also barred by several major 
human rights treaties, including the U.N. Convention on the Rights of 
the Child, the American Convention on Human Rights, and the 
International Covenant on Civil and Political Rights--perhaps the most 
important human rights documents in the world today. As a leader in the 
human rights community, it would be fitting if the United States agreed 
to respect the precepts of international humans rights law and comply 
with the terms of these treaties.
  This country should also stop executing the mentally retarded. People 
with mental retardation have a diminished capacity to understand right 
from wrong. They are more prone to confess to crimes they did not 
commit simply to please their interrogators, and they are often unable 
to assist their lawyer in preparing a defense. Executing them is wrong; 
it is immoral. In addition, the execution of the mentally retarded, 
like the execution of juvenile offenders, severely damages U.S. 
standing in the international community.
  Today, 13 States with capital punishment forbid the execution of 
defendants with mental retardation. The State Senator who sponsored the 
Nebraska bill in 1998 later said that it should not have been necessary 
because ``no civilized, mature society would ever entertain the 
possibility of executing anybody who was mentally retarded.''
  The legislation that I introduce today proposes that the United 
States Congress speak as the conscience of the Nation in condemning the 
continued execution of juvenile offenders and the mentally retarded.
  There can be no longer be any question that our capital punishment 
system is in crisis. The Innocence Protection Act is the absolute 
minimum we must do to prevent and catch these mistakes and to restore 
the public's confidence in our criminal justice system.
  I ask unanimous consent that the bill, a summary of the bill, and 
additional material be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2690

       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 2000''.
       (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. DNA testing in Federal criminal justice system.
Sec. 103. DNA testing in State criminal justice systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.

      TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

Sec. 201. Amendments to Byrne grant programs.
Sec. 202. Effect on procedural default rules.
Sec. 203. Capital representation grants.

             TITLE III--COMPENSATING THE UNJUSTLY CONDEMNED

Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.

                   TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Accommodation of State interests in Federal death penalty 
              prosecutions.
Sec. 402. Alternative of life imprisonment without possibility of 
              release.
Sec. 403. Right to an informed jury.
Sec. 404. Annual reports.
Sec. 405. Discretionary appellate review.
Sec. 406. 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

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     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 the past decade, there have been more than 65 post-
     conviction exonerations in the United States and Canada based 
     upon DNA testing. At least 8 individuals sentenced to death 
     have been exonerated through post-conviction DNA testing, 
     some of whom came within days of being executed.
       (6) The 2 States that have established statutory processes 
     for post-conviction DNA testing, Illinois and New York, have 
     the most post-conviction DNA exonerations, 14 and 7, 
     respectively.
       (7) The advent of DNA testing raises serious concerns 
     regarding the prevalence of wrongful convictions, especially 
     wrongful convictions arising out of mistaken eyewitness 
     identification testimony. According to a 1996 Department of 
     Justice study entitled ``Convicted by Juries, Exonerated by 
     Science: Case Studies of Post-Conviction DNA Exonerations'', 
     in approximately 20 to 30 percent of the cases referred for 
     DNA testing, the results excluded the primary suspect. 
     Without DNA testing, many of these individuals might have 
     been wrongfully convicted.
       (8) Laws in more than 30 States require that a motion for a 
     new trial based on newly discovered evidence of innocence be 
     filed within 6 months or less. These laws are premised on the 
     belief--inapplicable to DNA testing--that evidence becomes 
     less reliable over time. Such time limits have been used to 
     deny inmates access to DNA testing, even when guilt or 
     innocence could be conclusively established by such testing. 
     For example, in Dedge v. Florida, 723 So.2d 322 (Fla. Dist. 
     Ct. App. 1998), the court without opinion affirmed the denial 
     of a motion to release trial evidence for the purpose of DNA 
     testing. The trial court denied the motion as procedurally 
     barred under the 2-year limitation on claims of newly 
     discovered evidence established by the State of Florida, 
     which has since adopted a 6-month limitation on such claims.
       (9) Even when DNA testing has been done and has 
     persuasively demonstrated the actual innocence of an inmate, 
     States have sometimes relied on time limits and other 
     procedural barriers to deny release.
       (10) 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 issued a report entitled ``Recommendations For 
     Handling Post-Conviction DNA Applications'' that urges post-
     conviction DNA testing in 2 carefully defined categories of 
     cases, notwithstanding procedural rules that could be invoked 
     to preclude such testing, and notwithstanding the inability 
     of the inmate to pay for the testing.
       (11) The number of cases in which post-conviction DNA 
     testing is appropriate is relatively small and will decrease 
     as pretrial testing becomes more common and accessible.
       (12) The cost of DNA testing has also decreased in recent 
     years. The typical case, involving the analysis of 8 samples, 
     currently costs between $2,400 and $5,000, depending upon 
     jurisdictional differences in personnel costs.
       (13) In 1994, Congress authorized funding to improve the 
     quality and availability of DNA analysis for law enforcement 
     identification purposes. Since then, States have been awarded 
     over $50,000,000 in DNA-related grants.
       (14) Although the Supreme Court has never announced a 
     standard for addressing constitutional claims of innocence, 
     in Herrera v. Collins, 506 U.S. 390 (1993), a majority of the 
     Court expressed the view that, ``a truly persuasive 
     demonstration of `actual innocence' '' made after trial would 
     render imposition of punishment by a State unconstitutional.
       (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 
     incarcerated or executed.
       (16) To prevent violations of the Constitution of the 
     United States that the Supreme Court anticipated in Herrera 
     v. Collins, it is necessary and proper to enact national 
     legislation that ensures that the Federal Government and the 
     States will permit DNA testing in appropriate cases.
       (17) There is also a compelling need to ensure the 
     preservation of biological material for post-conviction DNA 
     testing. Since 1992, the Innocence Project at the Benjamin N. 
     Cardozo School of Law has received thousands of letters from 
     inmates who claim that DNA testing could prove them innocent. 
     In over 70 percent of those cases in which DNA testing could 
     have been dispositive of guilt or innocence if the biological 
     material were available, the material had been destroyed or 
     lost. In two-thirds of the cases in which the evidence was 
     found, and DNA testing conducted, the results have exonerated 
     the inmate.
       (18) In at least 14 cases, post-conviction DNA testing that 
     has exonerated a wrongly convicted person has also provided 
     evidence leading to the apprehension of the actual 
     perpetrator, thereby enhancing public safety. This would not 
     have been possible if the biological evidence had been 
     destroyed.
       (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 ensuring the availability 
     of 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. 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 biological material.

     ``Sec. 2291. DNA testing

       ``(a) Application.--Notwithstanding any other provision of 
     law, a person in custody pursuant to the judgment of a court 
     established by an Act of Congress may, at any time after 
     conviction, apply to the court that entered the judgment for 
     forensic DNA testing of any biological material that--
       ``(1) is related to the investigation or prosecution that 
     resulted in the judgment;
       ``(2) is in the actual or constructive possession of the 
     Government; and
       ``(3) was not previously subjected to DNA testing, or can 
     be subjected to retesting with new DNA techniques that 
     provide a reasonable likelihood of more accurate and 
     probative results.
       ``(b) Notice to Government.--
       ``(1) In general.--The court shall notify the Government of 
     an application made under subsection (a) and shall afford the 
     Government an opportunity to respond.
       ``(2) Preservation of remaining biological material.--Upon 
     receiving notice of an application made under subsection (a), 
     the Government shall take such steps as are necessary to 
     ensure that any remaining biological material that was 
     secured in connection with the case is preserved pending the 
     completion of proceedings under this section.
       ``(c) Order.--The court shall order DNA testing pursuant to 
     an application made under subsection (a) upon a determination 
     that testing may produce noncumulative, exculpatory evidence 
     relevant to the claim of the applicant that the applicant was 
     wrongfully convicted or sentenced.
       ``(d) 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, if it is shown that the applicant is not indigent 
     and possesses the means to pay.
       ``(e) Counsel.--The court may at any time appoint counsel 
     for an indigent applicant under this section.
       ``(f) Post-Testing Procedures.--
       ``(1) Procedures following results unfavorable to 
     applicant.--If the results of DNA testing conducted under 
     this section are unfavorable to the applicant, the court--
       ``(A) shall dismiss the application; and
       ``(B) in the case of an applicant who is not indigent, may 
     assess the applicant for the cost of such testing.
       ``(2) Procedures following results favorable to 
     applicant.--If the results of DNA testing conducted under 
     this section are favorable to the applicant, the court 
     shall--
       ``(A) order a hearing, notwithstanding any provision of law 
     that would bar such a hearing; and
       ``(B) enter any order that serves the interests of justice, 
     including an order--
       ``(i) vacating and setting aside the judgment;
       ``(ii) discharging the applicant if the applicant is in 
     custody;
       ``(iii) resentencing the applicant; or
       ``(iv) granting a new trial.
       ``(g) Rule of Construction.--Nothing in this section shall 
     be construed to limit the

[[Page S4678]]

     circumstances under which a person may obtain DNA testing or 
     other post-conviction relief under any other provision of 
     law.

     ``Sec. 2292. Preservation of biological material

       ``(a) In General.--Notwithstanding any other provision of 
     law and subject to subsection (b), the Government shall 
     preserve any biological material secured in connection with a 
     criminal case for such period of time as any person remains 
     incarcerated in connection with that case.
       ``(b) Exception.--The Government may destroy biological 
     material before the expiration of the period of time 
     described in subsection (a) if--
       ``(1) the Government notifies any person who remains 
     incarcerated in connection with the case, and any counsel of 
     record or public defender organization for the judicial 
     district in which the judgment of conviction for such person 
     was entered, of--
       ``(A) the intention of the Government to destroy the 
     material; and
       ``(B) the provisions of this chapter;
       ``(2) no person makes an application under section 2291(a) 
     within 90 days of receiving notice under paragraph (1) of 
     this subsection; and
       ``(3) no other provision of law requires that such 
     biological material be preserved.''.
       (b) Technical and Conforming Amendment.--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''.....

     SEC. 103. DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS.

       (a) DNA Identification Grant Program.--Section 2403 of 
     title I of the Omnibus Crime Control and Safe Streets Act of 
     1968 (42 U.S.C. 3796kk-2) is amended--
       (1) in paragraph (2)--
       (A) in the matter preceding subparagraph (A), by striking 
     ``shall'' and inserting ``will'';
       (B) in subparagraph (C), by striking ``is charged'' and 
     inserting ``was charged or convicted''; and
       (C) in subparagraph (D), by striking ``and'' at the end;
       (2) in paragraph (3)--
       (A) by striking ``shall'' and inserting ``will''; and
       (B) by striking the period at the end and inserting ``; 
     and''; and
       (3) by adding at the end the following:
       ``(4) the State will--
       ``(A) preserve all biological material secured in 
     connection with a State criminal case for not less than the 
     period of time that biological material is required to be 
     preserved under section 2292 of title 28, United States Code, 
     in the case of a person incarcerated in connection with a 
     Federal criminal case; and
       ``(B) make DNA testing available to any person convicted in 
     State court to the same extent, and under the same 
     conditions, that DNA testing is available under section 2291 
     of title 28, United States Code, to any person convicted in a 
     court established by an Act of Congress.''.
       (b) Drug Control and System Improvement Grant Program.--
     Section 503(a)(12) of title I of the Omnibus Crime Control 
     and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)) is 
     amended--
       (1) in subparagraph (B)--
       (A) in clause (iii), by striking ``is charged'' and 
     inserting ``was charged or convicted''; and
       (B) in clause (iv), by striking ``and'' at the end;
       (2) in subparagraph (C), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(D) the State will--
       ``(i) preserve all biological material secured in 
     connection with a State criminal case for not less than the 
     period of time that biological material is required to be 
     preserved under section 2292 of title 28, United States Code, 
     in the case of a person incarcerated in connection with a 
     Federal criminal case; and
       ``(ii) make DNA testing available to a person convicted in 
     State court to the same extent, and under the same 
     conditions, that DNA testing is available under section 2291 
     of title 28, United States Code, to a person convicted in a 
     court established by an Act of Congress.''.
       (c) Public Safety and Community Policing Grant Program.--
     Section 1702(c) of title I of the Omnibus Crime Control and 
     Safe Streets Act of 1968 (42 U.S.C. 3796dd-1(c)) is amended--
       (1) in paragraph (10), by striking ``and'' at the end;
       (2) in paragraph (11), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(12) if any part of funds received from a grant made 
     under this subchapter is to be used to develop or improve a 
     DNA analysis capability in a forensic laboratory, or to 
     obtain or analyze DNA samples for inclusion in the Combined 
     DNA Index System (CODIS), certify that--
       ``(A) DNA analyses performed at such laboratory will 
     satisfy or exceed the current standards for a quality 
     assurance program for DNA analysis, issued by the Director of 
     the Federal Bureau of Investigation under section 210303 of 
     the DNA Identification Act of 1994 (42 U.S.C. 14131);
       ``(B) DNA samples and analyses obtained and performed by 
     such laboratory will be accessible only--
       ``(i) to criminal justice agencies for law enforcement 
     purposes;
       ``(ii) in judicial proceedings, if otherwise admissible 
     under applicable statutes and rules;
       ``(iii) for criminal defense purposes, to a defendant, who 
     shall have access to samples and analyses performed in 
     connection with the case in which the defendant was charged 
     or convicted; or
       ``(iv) if personally identifiable information is removed, 
     for a population statistics database, for identification 
     research and protocol development purposes, or for quality 
     control purposes;
       ``(C) the laboratory and each analyst performing DNA 
     analyses at the laboratory will undergo, at regular intervals 
     not exceeding 180 days, external proficiency testing by a DNA 
     proficiency testing program that meets the standards issued 
     under section 210303 of the DNA Identification Act of 1994 
     (42 U.S.C. 14131); and
       ``(D) the State will--
       ``(i) preserve all biological material secured in 
     connection with a State criminal case for not less than the 
     period of time that biological material is required to be 
     preserved under section 2292 of title 28, United States Code, 
     in the case of a person incarcerated in connection with a 
     Federal criminal case; and
       ``(ii) make DNA testing available to any person convicted 
     in State court to the same extent, and under the same 
     conditions, that DNA testing is available under section 2291 
     of title 28, United States Code, to a person convicted in a 
     court established by an Act of Congress.''.

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

       (a) Request for DNA Testing.--
       (1) In general.--No State shall deny a request, made by a 
     person in custody resulting from a State court judgment, for 
     DNA testing of biological material that--
       (A) is related to the investigation or prosecution that 
     resulted in the conviction of the person or the sentence 
     imposed on the person;
       (B) is in the actual or constructive possession of the 
     State; and
       (C) was not previously subjected to DNA testing, or can be 
     subjected to retesting with new DNA techniques that provide a 
     reasonable likelihood of more accurate and probative results.
       (2) Exception.--A State may deny a request under paragraph 
     (1) upon a judicial determination that testing could not 
     produce noncumulative evidence establishing a reasonable 
     probability that the person was wrongfully convicted or 
     sentenced.
       (b) Opportunity To Present Results of DNA Testing.--No 
     State shall rely upon a time limit or procedural default rule 
     to deny a person an opportunity to present noncumulative, 
     exculpatory DNA results in court, or in an executive or 
     administrative forum in which a decision is made in 
     accordance with procedural due process.
       (c) Remedy.--A person 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 either the State 
     or an executive or judicial officer of the State as 
     defendant. No State or State executive or judicial officer 
     shall have immunity from actions under this subsection.

      TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

     SEC. 201. AMENDMENTS TO BYRNE GRANT PROGRAMS.

       (a) Certification Requirement; Formula Grants.--Section 503 
     of title I of the Omnibus Crime Control and Safe Streets Act 
     of 1968 (42 U.S.C. 3753) is amended--
       (1) in subsection (a), by adding at the end the following:
       ``(13) If the State prescribes, authorizes, or permits the 
     penalty of death for any offense, a certification that the 
     State has established and maintains an effective system for 
     providing competent legal services to indigents at every 
     phase of a State criminal prosecution in which a death 
     sentence is sought or has been imposed, up to and including 
     direct appellate review and post-conviction review in State 
     court.''; and
       (2) in subsection (b)--
       (A) by striking ``(b) Within 30 days after the date of 
     enactment of this part, the'' and inserting the following:
       ``(b) Regulations.--
       ``(1) In general.--The''; and
       (B) by adding at the end the following:
       ``(2) Certification regulations.--The Director of the 
     Administrative Office of the United States Courts, after 
     notice and an opportunity for comment, shall promulgate 
     regulations specifying the elements of an effective system 
     within the meaning of subsection (a)(13), which elements 
     shall include--
       ``(A) a centralized and independent appointing authority, 
     which shall have authority and responsibility to--
       ``(i) recruit attorneys who are qualified to represent 
     indigents in the capital proceedings specified in subsection 
     (a)(13);
       ``(ii) draft and annually publish a roster of qualified 
     attorneys;
       ``(iii) 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;
       ``(iv) periodically review the roster, monitor the 
     performance of all attorneys appointed, provide a mechanism 
     by which members of the Bar may comment on the

[[Page S4679]]

     performance of their peers, and delete the name of any 
     attorney who fails to 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;
       ``(v) conduct or sponsor specialized training programs for 
     attorneys representing clients in capital cases;
       ``(vi) appoint lead counsel and co-counsel from the roster 
     to represent a defendant in a capital case promptly upon 
     receiving notice of the need for an appointment from the 
     relevant State court; and
       ``(vii) report the appointment, or the failure of the 
     defendant to accept such appointment, to the court requesting 
     the appointment;
       ``(B) 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;
       ``(C) reimbursement of private attorneys and public 
     defender organizations for attorney expenses reasonably 
     incurred in the representation of a client in a capital case, 
     computed on an hourly basis reflecting the local market for 
     such services; and
       ``(D) 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 defendant in a capital case, computed on an hourly basis 
     reflecting the local market for such services.''.
       (b) Certification Requirement; Discretionary Grants.--
     Section 517(a) of title I of the Omnibus Crime Control and 
     Safe Streets Act of 1968 (42 U.S.C. 3763(a)) is amended--
       (1) in paragraph (3), by striking ``and'' at the end;
       (2) in paragraph (4), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(5) satisfies the certification requirement established 
     by section 503(a)(13).''.
       (c) Director's Reports to Congress.--Section 522(b) of 
     title I of the Omnibus Crime Control and Safe Streets Act of 
     1968 (42 U.S.C. 3766b(b)) is amended--
       (1) in paragraph (4), by striking ``and'' at the end;
       (2) by redesignating paragraph (5) as paragraph (6); and
       (3) by inserting after paragraph (4) the following:
       ``(5) descriptions and a comparative analysis of the 
     systems established by each State in order to satisfy the 
     certification requirement established by section 503(a)(13), 
     except that the descriptions and the comparative analysis 
     shall include--
       ``(A) the qualifications and performance standards 
     established pursuant to section 503(b)(2)(A)(iii);
       ``(B) the rates of compensation paid under section 
     503(b)(2)(B); and
       ``(C) the rates of reimbursement paid under subparagraphs 
     (C) and (D) of section 503(b)(2); and''.
       (d) Effective Date.--
       (1) In general.--Subject to paragraph (2), the amendments 
     made by this section shall apply with respect to any 
     application submitted on or after the date that is 1 year 
     after the date of enactment of this Act.
       (2) Exception.--The amendments made by this section shall 
     not take effect until the amount made available for a fiscal 
     year to carry out part E of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 equals or exceeds an 
     amount that is $50,000,000 greater than the amount made 
     available to carry out that part for fiscal year 2000.
       (e) Regulations.--The Director of the Administrative Office 
     of the United States Courts shall issue all regulations 
     necessary to carry out the amendments made by this section 
     not later than 180 days before the effective date of those 
     regulations.

     SEC. 202. EFFECT ON PROCEDURAL DEFAULT RULES.

       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 indigent 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, unless--
       ``(A) the State provided the applicant with legal services 
     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
       ``(B) the legal services the State provided satisfied the 
     regulations promulgated by the Director of the Administrative 
     Office of the United States Courts pursuant to section 
     503(b)(2) of title I of the Omnibus Crime Control and Safe 
     Streets Act of 1968.''.

     SEC. 203. CAPITAL REPRESENTATION 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 Representation 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;
       ``(iii) legal and administrative support and assistance to 
     counsel;
       ``(iv) direct representation of defendants, if the 
     availability of other qualified counsel is inadequate to meet 
     the need in the jurisdiction served by the grant recipient; 
     and
       ``(v) investigative, expert, or other services necessary 
     for adequate representation; 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) Decreasing the cost of providing qualified counsel.
       ``(D) 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.''.

             TITLE III--COMPENSATING THE UNJUSTLY CONDEMNED

     SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

       Section 2513 of title 28, United States Code, is amended by 
     striking subsection (e) and inserting the following:
       ``(e) Damages.--
       ``(1) In general.--The amount of damages awarded in an 
     action described in subsection (a) shall not exceed $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.
       ``(2) Factors for consideration in assessing damages.--In 
     assessing damages in an action described in subsection (a), 
     the court shall consider--
       ``(A) the circumstances surrounding the unjust conviction 
     of the plaintiff, including any misconduct by officers or 
     employees of the Federal Government;
       ``(B) the length and conditions of the unjust incarceration 
     of the plaintiff; and
       ``(C) the family circumstances, loss of wages, and pain and 
     suffering of the plaintiff.''.

     SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.

       (a) Criminal Justice Facility Construction Grant Program.--
     Section 603(a) of title I of the Omnibus Crime Control and 
     Safe Streets Act of 1968 (42 U.S.C. 3769b(a)) is amended--
       (1) in paragraph (5), by striking ``and'' at the end;
       (2) in paragraph (6), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(7) reasonable assurance that the applicant, or the State 
     in which the applicant is located--
       ``(A) does not prescribe, authorize, or permit the penalty 
     of death for any offense; or
       ``(B)(i) has established and maintains an effective 
     procedure by which any person unjustly convicted of an 
     offense against the State and sentenced to death may be 
     awarded reasonable damages upon substantial proof that the 
     person did not commit any of the acts with which the person 
     was charged; and
       ``(ii)(I) the conviction of that person was reversed or set 
     aside on the ground that the person was not guilty of the 
     offense or offenses of which the person was convicted;
       ``(II) the person was found not guilty of such offense or 
     offenses on new trial or rehearing; or
       ``(III) the person was pardoned upon the stated ground of 
     innocence and unjust conviction.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply with respect to any application submitted on or 
     after the date that is 1 year after the date of enactment of 
     this Act.

[[Page S4680]]

                   TITLE IV--MISCELLANEOUS PROVISIONS

     SEC. 401. ACCOMMODATION OF STATE INTERESTS IN FEDERAL DEATH 
                   PENALTY PROSECUTIONS.

       (a) Recognition of State Interests.--Chapter 228 of title 
     18, United States Code, is amended by adding at the end the 
     following:

     ``Sec. 3599. Accommodation of State interests; certification 
       requirement

       ``(a) In General.--Notwithstanding any other provision of 
     law, the Government shall not seek the death penalty in any 
     case initially brought before a district court of the United 
     States that sits in a State that does not prescribe, 
     authorize, or permit the imposition of such penalty for the 
     alleged conduct, except upon the certification in writing of 
     the Attorney General or the designee of the Attorney General 
     that--
       ``(1) the State does not have jurisdiction or refuses to 
     assume jurisdiction over the defendant with respect to the 
     alleged conduct;
       ``(2) the State has requested that the Federal Government 
     assume jurisdiction; or
       ``(3) the offense charged is an offense described in 
     section 32, 229, 351, 794, 1091, 1114, 1118, 1203, 1751, 
     1992, 2340A, or 2381, or chapter 113B.
       ``(b) ``State Defined.--In this section, the term `State' 
     means each of the several States of the United States, the 
     District of Columbia, and the territories and possessions of 
     the United States.''.
       (b) Technical and Conforming Amendment.--The analysis for 
     chapter 228 of title 18, United States Code, is amended by 
     adding at the end the following:

``3599. Accommodation of State interests; certification requirement.''.

     SEC. 402. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT 
                   POSSIBILITY OF RELEASE.

       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. 403. RIGHT TO AN INFORMED JURY.

       (a) Additional Requirements.--Section 20105 of the Violent 
     Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 
     13705) is amended by striking subsection (b) and inserting 
     the following:
       ``(b) Additional Requirements.--To be eligible to receive a 
     grant under section 20103 or 20104, a State shall provide 
     assurances to the Attorney General that--
       ``(1) the State has implemented policies that provide for 
     the recognition of the rights and needs of crime victims; and
       ``(2) in any capital case 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.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply with respect to any application for a grant under 
     section 20103 or 20104 of the Violent Crime Control and Law 
     Enforcement Act of 1994 (42 U.S.C. 13703; 13704) that is 
     submitted on or after the date that is 1 year after the date 
     of enactment of this Act.

     SEC. 404. 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 1998'' 
     (December 1999, NCJ 179012), and the following additional 
     categories of information:
       (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) An analysis of the effect of Witherspoon v. Illinois, 
     391 U.S. 510 (1968), and its progeny, on the composition of 
     juries in capital cases, including the racial composition of 
     such juries, and on the exclusion of otherwise eligible and 
     available jurors from such cases.
       (4) An analysis of the effect of peremptory challenges, by 
     the prosecution and defense respectively, on the composition 
     of juries in capital cases, including the racial composition 
     of such juries, and on the exclusion of otherwise eligible 
     and available jurors from such cases.
       (5) 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.
       (6) 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.
       (7) The percentage of capital cases in which counsel is 
     retained by the defendant, and the percentage in which 
     counsel is appointed by the court.
       (8) A comparative analysis of systems for appointing 
     counsel in capital cases in different States.
       (9) A State-by-State analysis of the rates of compensation 
     paid in capital cases to appointed counsel and their support 
     staffs.
       (10) The percentage of cases in which a death sentence or a 
     conviction underlying a death sentence is vacated, reversed, 
     or set aside, and the reasons therefore.
       (c) 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. 405. DISCRETIONARY APPELLATE REVIEW.

       Section 2254(c) of title 28, United States Code, is 
     amended--
       (1) by inserting ``(1)'' after ``(c)''; and
       (2) by adding at the end the following:
       ``(2) For purposes of paragraph (1), if the highest court 
     of a State has discretion to decline appellate review of a 
     case or a claim, a petition asking that court to entertain a 
     case or a claim is not an available State court procedure.''.

     SEC. 406. 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.
                                  ____


      Innocence Protection Act of 2000--Section-by-Section Summary


                                overview

       The Innocence Protection Act of 2000 is a comprehensive 
     package of criminal justice reforms aimed at reducing the 
     risk that innocent persons may be executed. Most urgently, 
     the bill would (1) ensure that convicted offenders are 
     afforded an opportunity to prove their innocence through DNA 
     testing; (2) help States to provide competent legal services 
     at every stage of a death penalty prosecution; (3) enable 
     those who can prove their innocence to recover some measure 
     of compensation for their unjust incarceration; and (4) 
     provide the public with more reliable and detailed 
     information regarding the administration of the nation's 
     capital punishment laws.


   title I--exonerating the innocent through federal post-conviction 
                                 review

       Sec. 101. Findings and purposes. Legislative findings and 
     purposes in support of this title.
       Sec. 102. DNA testing in Federal criminal justice system. 
     Establishes rules and procedures governing applications for 
     DNA testing by convicted offenders in the Federal system. An 
     applicant must allege that evidence to be tested (1) is 
     related to the investigation or prosecution that resulted in 
     the applicant's conviction; (2) is in the government's actual 
     or constructive possession; and (3) was not previously 
     subjected to DNA testing, or to the form of DNA testing now 
     requested. The court may, in its discretion, appoint counsel 
     for an indigent applicant.
       Because access to DNA testing is of no value unless 
     evidence containing DNA has been preserved, this section also 
     prohibits the government from destroying any biological 
     material in a criminal case while any person remains 
     incarcerated in connection with that case, unless such person 
     is notified of the government's intent to destroy the 
     material, and afforded at least 90 days to request DNA 
     testing under this title.
       Sec. 103. DNA testing in State criminal justice system. 
     Conditions receipt of Federal grants for DNA-related programs 
     on an assurance that the State will adopt adequate procedures 
     for preserving biological material and making DNA testing 
     available to its inmates.
       Sec. 104. Prohibition pursuant to section 5 of the 14th 
     amendment. Prohibits States from (1) denying requests for DNA 
     testing that could produce new exculpatory evidence or (2) 
     denying inmates a meaningful opportunity to prove their 
     innocence using the results of DNA testing. Creates an 
     authority to sue for declaratory or injunctive relief to 
     enforce these prohibitions.


      title ii--ensuring competent legal services in capital cases

       Sec. 201. Amendments to Byrne grant programs. Conditions 
     Federal funding under the Byrne grant programs--when such 
     funding equals or exceeds an amount that is $50 million 
     greater than the amount appropriated for such programs in FY 
     2000--on certification that the State has established and 
     maintains an ``effective system'' for providing competent 
     legal services to indigent defendants at every stage of death 
     penalty prosecution, from pre-trial proceedings through post-
     conviction review. The Director of the Administrative Office 
     of the United States Courts is charged with specifying the 
     elements of an ``effective system,'' which must include a 
     centralized and independent authority for appointing 
     attorneys in capital cases, and adequate compensation and 
     reimbursement of such attorneys.
       Sec. 202. Effect on procedural default rules. Provides that 
     certain procedural barriers to Federal habeas corpus review 
     shall not apply if the State failed to provide the petitioner 
     with adequate legal services.
       Sec. 203. Capital representation grants. Amends the 
     Criminal Justice Act, 18 U.S.C. Sec. 3006A, to make more 
     Federal funding available to public agencies and private non-
     profit organizations for purposes of enhancing

[[Page S4681]]

     the availability and competence of counsel in capital cases, 
     encouraging the continuity of representation in such cases, 
     decreasing the cost of providing qualified death penalty 
     counsel, and increasing the efficiency with which capital 
     cases are resolved.


             title iii--compensating the unjustly condemned

       Sec. 301. Increased compensation in Federal cases. Raises 
     the total amount of damages that may be awarded against the 
     United States in cases of unjust imprisonment from $5,000 to 
     $50,000 a year in a non-death penalty case, or $100,000 a 
     year in a death penalty case. Identifies factors for court to 
     consider in assessing damages.
       Sec. 302. Compensation in State death cases. Encourages 
     States to permit any person who was unjustly convicted and 
     sentenced to death to be awarded reasonable damages, upon 
     substantial proof of innocence and formal exoneration, by 
     adding a new condition for Federal funding to assist in 
     construction of correctional facility projects.


                        title iv--miscellaneous

       Sec. 401. Accommodation of State interests in Federal 
     death-penalty prosecutions. Protects the interests of States 
     (including the District of Columbia and any commonwealth, 
     territory or possession of the United States) by limiting the 
     Federal government's authority to seek the death penalty in 
     States that do not permit the imposition of such penalty. 
     Department of Justice guidelines provide that in cases of 
     concurrent jurisdiction, ``a Federal indictment for an 
     offense subject to the death penalty will be obtained only 
     when the Federal interest in the prosecution is more 
     substantial than the interests of the State or local 
     authorities.'' Section 401 builds on that principle by 
     requiring the Attorney General or her designee to certify 
     that (1) the State does not have jurisdiction or refuses to 
     assume jurisdiction over the defendant; (2) the State has 
     requested that the Federal government assume jurisdiction; or 
     (3) the offense charged involves genocide; terrorism; use of 
     chemical weapons or weapons of mass-destruction; destruction 
     of aircraft, trains, or other instrumentalities or facilities 
     of interstate commerce; hostage taking; torture; espionage; 
     treason; the killing of certain high public officials; or 
     murder by a Federal prisoner.
       Sec. 402. Alternative of life imprisonment without 
     possibility of release. Provides juries in Federal death 
     penalty prosecutions brought under the drug kingpin statute, 
     21 U.S.C. Sec. 848(l), the option of recommending life 
     imprisonment without possibility of release. This amendment 
     brings the drug kingpin statute into conformity with the more 
     recently-enacted death penalty procedures in title 18, which 
     govern most Federal death penalty prosecutions. See 18 U.S.C. 
     Sec. 3594.
       Sec. 403. Right to an informed jury. Conditions Federal 
     truth-in-sentencing grants upon certification that, in any 
     capital case in which the jury has a role in determining the 
     defendant's sentence, the defendant has the right to have the 
     jury informed of all statutorily-authorized sentencing 
     options in the particular case, including applicable parole 
     eligibility rules and terms. The purpose is to give full 
     effect to the due process principles underlying the Supreme 
     Court's decision in Simmons v. South Carolina, 512 U.S. 154 
     (1994), which held that a defendant who has been convicted of 
     a capital offense is entitled to an instruction informing the 
     sentencing jury that he is ineligible for parole under State 
     law.
       Sec. 404. Annual reports. Directs the Justice Department to 
     prepare an annual report regarding the administration of the 
     nation's capital punishment laws. The report must be 
     submitted to Congress, distributed to the press and posted on 
     the Internet.
       Sec. 405. Discretionary appellate review. Respects State 
     procedural rules by allowing Federal habeas corpus 
     petitioners to raise claims that State courts discouraged 
     them from raising when seeking discretionary review in the 
     State's highest court. Responds to the Supreme Court's 
     decision in O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999), 
     which held that a State prisoner must present his claims to a 
     State supreme court in a petition for discretionary review in 
     order to satisfy the exhaustion requirement of 28 U.S.C. 
     Sec. 2254(b)(1), (c).
       Sec. 406. Sense of the Congress regarding the execution of 
     juvenile offenders and the mentally retarded. Expresses the 
     sense of the Congress that the death penalty is 
     disproportionate and offends contemporary standards of 
     decency when applied to juvenile offenders and the mentally 
     retarded.
                                  ____


               [From the Washington Times, June 6, 2000]

                         Thoughts on Executions

       In his decision to halt Thursday evening's execution of a 
     convicted killer for a period of 30 days, Texas Gov. George 
     W. Bush did what had to be done. Where there is no shadow of 
     a doubt, the death penalty can sometimes be the right course 
     of action. Yet, where doubt, any doubt, remains, the 
     consequences are awesome. In the case of Ricky Nolan McGinn, 
     who was sentenced to death for raping and murdering his 13-
     year-old stepdaughter in 1993, there seems to be some 
     uncertainty, in which case every means should be used to 
     establish the truth. When you take a man's life, you take 
     everything he's got. There simply is no way to make up for a 
     mistake made in the execution chamber.
       Mr. Bush cannot be accused of being soft on criminals. 
     During his five and a half years in office, Mr. Bush has 
     presided over more executions than any other governor in the 
     country: 131, all told. Most famously, Mr. Bush refused to 
     reduce the sentence of Karla Faye Tucker in 1998. She had 
     been convicted of the particularly horrible execution-style 
     murder of two persons during a gas station robbery, and while 
     in prison had become a born-again Christian. Though religious 
     leaders such as Pat Robertson pleaded for her life, Mr. Bush 
     allowed the execution to go forward. The fact that he has 
     chosen to grant a 30-day reprieve in this one case can hardly 
     be said to indicate a change of heart on the death penalty.
       Nevertheless, in the partisan heat of a presidential 
     election year, Mr. Bush has been accused of playing politics 
     with the death penalty. If this is the case, he is doing so 
     on the side of giving someone on death row a final chance. 
     This contrasts with Gov. Bill Clinton's decision to proceed 
     with the execution of a severely retarded Arkansas man during 
     the 1992 presidential election campaign, which was meant to 
     establish his tough-on-crime credentials.
       But beyond the question of politics, there's science. Mr. 
     Bush is catching a nationwide movement, based on advances 
     that are making DNA testing increasingly sophisticated. The 
     increased use of DNA analysis has in fact revealed serious 
     flaws in the way the justice system exacts the supreme 
     penalty. The trend towards state moratoria on executions has 
     been led by Gov. George Ryan of Illinois, a Republican. In 
     Illinois, during the course of the 23 years since the death 
     penalty was reinstated, a dozen persons have been put to 
     death--but 13 have been cleared of capital murder charges 
     through DNA testing after having been sentenced to death. 
     This is a stunning and sobering fact. Unless Illinois is 
     vastly different from the rest of the United States, that 
     statistic ought to produce second thoughts for everyone. (One 
     of those second thoughts might be that for every innocent man 
     executed, a guilty man is still out there, unpunished.)
       We do not suggest here that the United States should stop 
     punishing the guilty to the fullest extent of the law, even 
     if that means death. However, if this country is to have the 
     death penalty, we must be as certain as is humanly possible 
     that executions are restricted to the guilty. States should 
     be encouraged to make sure that is the case. Even if 66 
     percent of Americans support the death penalty, it is no 
     argument to say (as some conservatives have done) that the 
     death of an innocent person here or there is not enough to 
     reconsider what we are doing. This argument has been put 
     forward by the Rev. Jerry Falwell. Some have even argued that 
     this may be the price of the death penalty's deterrent 
     effect; Rep. Bill McCollum, Florida Republican, suggested as 
     much in an article for the Atlantic Monthly last year.
       Perhaps the most cogent argument against the death penalty 
     is that it degrades the sensibilities of otherwise good and 
     reasonable men and women, who have come to believe in it so 
     obsessively that they would impose it on the innocent if that 
     is the only way to keep the death penalty in the law.
       During a moratorium, the state would keep its electricity 
     and gas bills paid and its stockpiles of potassium chloride 
     intact against the day when the moratorium ends and 
     executions resume--presumably following improvements in the 
     way convictions are produced. Surely no one could reasonably 
     object to making sure we execute only the guilty.
                                  ____


                [From the Washington Post, Apr. 6, 2000]

                         Innocent On Death Row

                          (By George F. Will)

       ``Don't you worry about it,'' said the Oklahoma prosecutor 
     to the defense attorney. ``We're gonna needle your client. 
     You know, lethal injection, the needle. We're going to needle 
     Robert.''
       Oklahoma almost did. Robert Miller spent nine years on 
     death row, during six of which the state had DNA test results 
     proving his sperm was not that of the man who raped and 
     killed the 92-year-old woman. The prosecutor said the tests 
     only proved that another man had been with Miller during the 
     crime. Finally, the weight of scientific evidence, wielded by 
     an implacable defense attorney, got Miller released and 
     another man indicted.
       You could fill a book with such hair-curling true stories 
     of blighted lives and justice traduced. Three authors have 
     filled one. It should change the argument about capital 
     punishment and other aspects of the criminal justice system. 
     Conservatives, especially, should draw this lesson from the 
     book: Capital punishment, like the rest of the criminal 
     justice system, is a government program, so skepticism is in 
     order.
       Horror, too, is a reasonable response to what Barry Scheck, 
     Peter Neufeld and Jim Dwyer demonstrate in ``Actual 
     Innocence: Five Days to Execution and Other Dispatches From 
     the Wrongly Convicted.'' You will not soon read a more 
     frightening book. It is a catalog of appalling miscarriages 
     of justice, some of them nearly lethal. Their cumulative 
     weight compels the conclusion that many innocent people are 
     in prison, and some innocent people have been executed.
       Scheck and Neufeld (both members of O.J. Simpson's ``dream 
     team'' of defense attorneys) founded the pro-bono Innocence 
     Project at the Benjamin N. Cardozo School of Law in New York 
     to aid persons who convincingly claim to have been wrongly 
     convicted. Dwyer, winner of two Pulitzer Prizes,

[[Page S4682]]

     is a columnist for the New York Daily News. Their book is a 
     heartbreaking and infuriating compendium of stories of lives 
     ruined by:
       Forensic fraud, such as that by the medical examiner who, 
     in one death report, included the weight of the gallbladder 
     and spleen of a man from whom both organs had been surgically 
     removed long ago.
       Mistaken identifications by eyewitnesses or victims, which 
     contributed to 84 percent of the convictions overturned by 
     the Innocence Project's DNA exonerations.
       Criminal investigations, especially of the most heinous 
     crimes, that become ``echo chambers'' in which, because of 
     the normal human craving for retribution, the perceptions of 
     prosecutors and jurors are shaped by what they want to be 
     true. (The authors cite evidence that most juries will 
     convict even when admissions have been repudiated by the 
     defendant and contradicted by physical evidence.)
       The sinnister culture of jailhouse snitches, who earn 
     reduced sentences by fabricating ``admissions'' by fellow 
     inmates to unsolved crimes.
       Incompetent defense representation, such as that by the 
     Kentucky attorney in a capital case who gave his business 
     address as Kelly's Keg tavern.
       The list of ways the criminal justice system misfires could 
     be extended, but some numbers tell the most serious story: In 
     the 24 years since the resumption of executions under Supreme 
     Court guidelines, about 620 have occurred, but 87 condemned 
     persons--one for every seven executed--had their convictions 
     vacated by exonerating evidence. In eight of these cases, and 
     in many more exonerations not involving death row inmates, 
     the evidence was from DNA.
       One inescapable inference from these numbers is that some 
     of the 620 persons executed were innocent. Which is why, 
     after the exoneration of 13 prisoners on Illinois' death row 
     since 1987, for reasons including exculpatory DNA evidence, 
     Gov. George Ryan, a Republican, has imposed a moratorium on 
     executions.
       Scheck, Neufeld and Dwyer note that when a plane crashes, 
     an intensive investigation is undertaken to locate the cause 
     and prevent recurrences. Why is there no comparable urgency 
     about demonstrable, multiplying failures in the criminal 
     justice system? They recommend many reforms, especially 
     pertaining to the use of DNA and the prevention of forensic 
     incompetence and fraud. Sen. Patrick Leahy's Innocence 
     Protection Act would enable inmates to get DNA testing 
     pertinent to a conviction or death sentence, and ensure that 
     courts will hear resulting evidence.
       The good news is that science can increasingly serve the 
     defense of innocence. But there is other news.
       Two powerful arguments for capital punishment are that it 
     saves lives, if its deterrence effect is not vitiated by 
     sporadic implementation, and it heightens society's valuation 
     of life by expressing proportionate anger at the taking of 
     life. But that valuation is lowered by careless or corrupt 
     administration of capital punishment, which ``Actual 
     Innocence'' powerfully suggests is intolerably common.
                                  ____


               [From the Washington Times, Apr. 25, 2000]

                    Death Edict For the Guilty Only

                             (By Bruce Fein)

       Can reasonable people dispute that the government should 
     confine the death penalty to persons guilty of the crime 
     charged? And can reasonable people deny that the climbing 
     number of exonerations of death row inmates on the ground of 
     actual innocence creates chilling worries on that scores?
       Those questions make both urgent and compelling enactment 
     of the cool-headed bill (S. 2071) by Sen. Patrick Leahy, 
     Vermont Democrat, to upgrade the reliability of verdicts in 
     capital cases.
       Manifold reasons justify the death penalty (which the U.S. 
     Supreme Court has restricted to crimes of homicide): 
     retribution against offenders whose killings are earmarked by 
     shocking and barbaric wickedness, something akin to the Adolf 
     Eichmann example; to control prison inmates already laboring 
     under life sentences with no parole possibilities; to deter 
     the murder of police or crime witnesses in the hope of 
     escaping punishment of a lesser crime; and encouraging guilty 
     pleas contingent on cooperation with prosecutors in murder 
     conspiracy cases in exchange for a non-capital sentence.
       Whether death sentences in general deter crime is hotly 
     disputed. but if they do, their effects would not even begin 
     to dent the crime problem.
       A decent respect for life also demands scrupulous concern 
     for the reliability of verdicts in capital punishment trials. 
     Otherwise, the death penalty game is not worth the gamble of 
     executing the innocent--a shameful stain on any system of 
     Justice--and life sentences (perhaps in solitary confinement) 
     without parole should be the maximum.
       The Leahy bill laudably aims to preserve the death penalty 
     by slashing the prevailing and highly worrisome risk of 
     executing the innocent through greater DNA testing and 
     competent defense counsel.
       Unzip you ears to these facts. Since the Supreme Court in 
     1976 affirmed the constitutionality of the death penalty for 
     heinous and aggravated murders, 610 death sentences have been 
     implemented. Concurrently, 85 death row prisoners have been 
     released not for technical procedural flukes but because of 
     exculpatory evidence establishing their innocence. In other 
     words, for every seven executions approximately one capital 
     sentence has been levied on an innocent defendant.
       Moreover, the detections of these grim injustices has been 
     more haphazard than systematic. The case Randall Dale Adams 
     and Antony Porter are emblematic.
       The former was released after attracting the attention of 
     cinematic genius, Earl Morris. His gripping movie, ``The Thin 
     Blue Line,'' discredited the prosecution's case to a 
     nationally awakened audience.
       Mr. Porter had lived with the Sword of Damocles for 16 
     years, and in 1998 his hourglass fell to 48 hours. He was 
     saved from wrongful execution by the plucky work of 
     Northwestern University undergraduate journalism students, 
     who proved Mr. Antony's innocence, a verdict that the 
     State of Illinois conceded.
       Quirks and citizen altruism, however, are woefully 
     inadequate safeguards against executing the innocent. While 
     nothing in life is absolutely certain but death and taxes, 
     the Leahy bill would add two muscular measures to make the 
     truth-finding process in capital cases as reliable as is 
     reasonably feasible.
       First, post-conviction DNA testing of biological material 
     would be available to an inmate through court order upon a 
     demonstration that the test could provide noncumulative 
     exculpatory evidence; that the material is actually or 
     constructively possessed by the government; and that no 
     previous DNA test had been conducted or that new DNA 
     techniques might reasonably yield more accurate and probative 
     evidence. Jurisdictions also would be directed to preserve 
     biological material gathered in the course of an 
     investigation during the period of the criminal's 
     incarceration for the purpose of possible DNA testing.
       Of vastly greater importance to reliable death penalty 
     verdicts, however, is securing competent defense counsel in 
     lieu of incompetence or worse. The U.S. Supreme Court has 
     repeatedly celebrated the indispensability of reasonably 
     skilled lawyers to reliable verdicts. In the infamous 
     Scottsboro, Ala., criminal justice farce, Powell vs. Alabama 
     (1932), Justice George Sutherland, speaking for a unanimous 
     court, lectured: ``Left without the aid of counsel [the 
     accused] may be put on trial without a proper charge, and 
     convicted on incompetent evidence, or evidence irrelevant to 
     the issue or otherwise inadmissible. He lacks both the skill 
     and knowledge to prepare his defense, even though he has a 
     perfect one. He requires the guiding hand of counsel at every 
     step of the proceedings against him. Without it, though he be 
     not guilty, he faces the danger of conviction because he does 
     not know how to establish his innocence.''
       Capital cases generally feature indigent defendants. And 
     their court-appointed lawyers are frequently deficient 
     because of austere rates of reimbursement or plain laziness.
       For instance, the lawyer appointed to represent Ronald 
     Keith Williamson was uncurious about the fact that another 
     had confessed to the crime. He neglected to raise the 
     exculpatory confession at trial, Williamson was convicted, 
     and was later proven innocent through DNA testing after a 
     1997 federal appeals court decision overturned the trial 
     verdict because of inert or anemic lawyering.
       The Leahy legislation would end this blight in death 
     penalty prosecutions by instructing the director of the 
     Administrative Office of the United States Courts to creating 
     a scheme for credentialing attorneys and providing reasonable 
     pay in capital prosecutions against indigent defendants.
       Aren't executions too definitive to be left to chancy 
     discoveries of innocence? If the government does not want to 
     pay the price of turning square corners in capital cases, 
     shouldn't the prosecution accept a lesser maximum punishment?
                                  ____


               [From the Washington Post, Feb. 28, 2000]

                         Innocent on Death Row

       Sen. Patrick Leahy (D-Vt.) has introduced a bill that seeks 
     to strengthen safeguards against wrongful executions. Those 
     who support capital punishment should be as determined as its 
     opponents to ensure that innocent people are not executed. By 
     that logic, this legislation should enjoy wide support.
       The bill would require both state and federal courts to 
     permit post-conviction DNA testing in cases in which there is 
     a significant question of innocence. It also would encourage 
     states to retain biological evidence, thereby ensuring that 
     there is a material to test when innocence questions arise. 
     Perhaps more important, the bill would make federal criminal 
     justice funds to the states contingent on their improving 
     legal representation for the accused in all stages of death-
     penalty litigation.
       This is a critical reform, as the absence of competent 
     counsel is a pervasive theme in wrongful convictions. The 
     bill would raise the insultingly low limit for damages 
     against the federal government--$5,000 per year in jail--for 
     those wrongly convicted of federal crimes. And it would 
     encourage states to offer reasonable compensation as well.
       These are common-sense improvements to the basic 
     infrastructure of the death penalty. For those who favor the 
     abolition of capital punishment, they may seem inadequate. 
     But by focusing only on protecting the innocent--not on a 
     broader agenda of halting all executions--Mr. Leahy places 
     the spotlight on what should be bedrock principle for all

[[Page S4683]]

     who believe in due process. To support these reforms, one 
     need only believe that people accused of capital crimes 
     should have reasonably able counsel and that--when 
     substantial questions arise about the rightness of their 
     convictions--they should have the ability to prove their 
     innocence.
                                  ____


                [From the New York Times, Feb. 19, 2000]

                     New Looks at the Death Penalty

       America is at last beginning to grapple honestly with the 
     profound flaws of the death penalty system. Late last month 
     Gov. George Ryan of Illinois, a Republican, became the first 
     governor in a death penalty state to declare a moratorium on 
     executions, citing well-founded concerns about his state's 
     ``shameful record of convicting innocent people and putting 
     them on death row.'' That has now been followed by moves in 
     Congress and the executive branch to review death penalty 
     policies from a national perspective.
       Senator Russell Feingold of Wisconsin has urged President 
     Clinton to suspend all federal executions pending a review of 
     death penalty procedures similar to the one Governor Ryan has 
     initiated in Illinois. Problems of inadequate legal 
     representation, lack of access to DNA testing, police 
     misconduct, racial bias and even simple errors are not unique 
     to Illinois, Mr. Feingold noted.
       The Justice Department has also initiated its own review to 
     determine whether the federal death penalty system unfairly 
     discriminates against racial minorities. At his news 
     conference this week, Mr. Clinton praised the death penalty 
     moratorium in Illinois, but indicated he thought a federal 
     moratorium was unnecessary. Mr. Feingold has urged him to 
     reconsider. Given his lame-duck status, the president can 
     afford to call a halt without worrying about being falsely 
     labeled soft on crime. Moreover, the fact that a Republican 
     governor was first to announce a moratorium should minimize 
     any concern about Vice President Al Gore being so labeled.
       Congress need not wait for the administration to act. Last 
     week Senator Patrick Leahy, Democrat of Vermont, introduced 
     legislation to address ``the growing national crisis'' in how 
     capital punishment is administered. This promising measure, 
     the Innocence Protection Act of 2000, stops short of 
     abolishing the death penalty, the course we hope the nation 
     will eventually follow. But key provisions would lessen the 
     chance of unfairness and deadly error by making DNA testing 
     available to both state and federal inmates, and by setting 
     national standards to ensure that competent lawyers are 
     appointed for capital defendants.
       Without such protections, there is a grave possibility of 
     judicial error. Nationally, 612 people have been executed 
     since the Supreme Court reinstated capital punishment in 
     1976. During the same period, 81 people in 21 states have 
     been found innocent and released from death row--some within 
     hours of being executed. That suggests that many who were 
     executed might also have been innocent.
       Neither the states nor the courts are providing adequate 
     protection against awful miscarriages of justice. In Texas, 
     the nation's leader in executions, courts have upheld death 
     sentences in cases where defense lawyers slept during big 
     portions of the trial. Lately, Congress and the Supreme Court 
     have exacerbated the danger of mistaken executions by 
     curtailing appeal and habeas corpus rights. They have also 
     ignored the festering problem of inadequate legal 
     representation that caused the American Bar Association to 
     call for a death penalty moratorium three years ago. Even 
     death penalty supporters have to be troubled by a system 
     shown to have a high risk of executing the innocent.
                                  ____


               [From the Washington Post, Mar. 20, 2000]

                        On Virginia's Death Row

       Derek Barnabei evokes no sympathy. He is on death row in 
     Virginia for the rape and murder of his girlfriend, Sarah 
     Wisnosky, in 1993. The evidence of his guilt seems strong. 
     But that strong probability of guilt makes Virginia's 
     unwillingness to permit DNA testing of potentially key 
     evidence all the more puzzling. Mr. Barnabei has maintained 
     his innocence, and the case has a few troubling aspects. In 
     light of this, it only makes sense to test bloodstained 
     physical evidence retained but never tested by investigators. 
     Yet Virginia balks on the grounds that Mr. Barnabei's guilt 
     is so clear.
       The likelihood is that the blood is Ms. Wisnosky's, which 
     would neither bolster nor undermine the jury's verdict in the 
     case. It also could be Mr. Barnabei's, which would reinforce 
     the integrity of the verdict. But the presence of someone 
     else's blood would make Mr. Barnabei's claims more credible.
       It is hard to see why a state, before putting someone to 
     death, would be unwilling to demonstrate a jury verdict's 
     consistency with all of the evidence. Indeed, this is 
     precisely the type of case in which the state should have no 
     choice. Under a bill being pushed by Sen. Patrick Leahy (D-
     Vt.), states would be obligated in such circumstances to 
     allow post-conviction DNA testing. Such a law would not 
     merely offer a lawyer of protection to innocent people but 
     would increase public confidence in the convictions of guilty 
     people.

  Mr. SMITH of Oregon. Mr. President, I am a supporter of the death 
penalty. I believe there are some times when humankind can act in a 
manner so odious so heinous, and so depraved that the right to life is 
forfeited. Notwithstanding this belief--indeed, because of this 
belief--I rise today to talk about the importance of protecting 
innocent people in this country from wrongful imprisonment and 
execution. Today, Senator Leahy and I are introducing the Innocence 
Protection Act of 2000 that will use the technological advances of the 
21st century to ensure that justice is served swiftly and fairly.
  It has been difficult to open a newspaper in recent months without 
finding discussion of the death penalty and possible miscarriages of 
justice. You have almost certainly seen or heard reports of inmates 
being freed from death row based on results of new genetic tests that 
were unavailable at the time of trial. There have been a number of 
cases where this has, in fact, occurred.
  This is a cause for concern for a number of cases. First and 
foremost, of course, is the possibility that an innocent person could 
lose his or her life if wrongfully convicted. In such cases, this also 
leads to the double tragedy that the true guilty party remains free to 
roam the country in search of future victims. Clearly, capturing and 
convicting the true perpetrator of a crime is in everyone's best 
interests.
  The Innocence Protection Act of 2000 would provide a national 
standard for post-conviction DNA testing of inmates who believe they 
have been wrongly incarcerated. Although many inmates were convicted 
before modern methods of genetic fingerprinting were available, not all 
states routinely allow post-conviction DNA testing.
  This does not make sense. If we are to have a system that is just, 
transparent, and defensible, we must make absolutely certain that every 
person who is behind bars deserves to be there. One of the best ways to 
do this is to make the most advanced technology available for cases in 
which physical evidence could have an influence on the verdict.
  Making DNA testing available will result in some convictions being 
overturned. In such cases, people who have been unjustly incarcerated 
must be afforded fair compensation for the lost years of their lives. 
The Leahy-Smith Innocence Protection Act of 2000 has a provision that 
would do this. Sometimes a person who has been wrongly imprisoned is 
released from prison with bus fare and the clothes on his or her back. 
This practice simply heaps one wrong upon another.
  While officers of America's courts and law enforcement work extremely 
hard to ensure that the true perpetrators of heinous crimes are caught 
and convicted, there have been instances where defendants have been 
represented by overworked, underpaid, or even unqualified counsel, and 
this situation cannot be tolerated in a system of criminal justice. The 
Leahy-Smith Innocence Protection Act of 2000 would ensure that 
defendants who are put on trial for their lives receive competent legal 
representation at every stage in their cases.
  The Innocence Protection Act of 2000 will allow us, as a nation, to 
continue our confidence in the American judicial system and in the fair 
and just application of the death penalty. We must have confidence in 
the integrity of justice, that it will both protect the innocent and 
punish the guilty. This legislation will not prevent true criminals 
from being executed; rather, it will increase support for the death 
penalty by providing added assurances that American justice is 
administered fairly across the country.
  Therefore, I urge my colleagues on both sides of the aisle, whether 
you support or oppose capital punishment, to join Senator Leahy and me 
in backing the Innocence Protection Act of 2000, which will put the 
fingerprint of the 21st century on our criminal justice system, 
ensuring that innocent lives are not unjustly taken in this country.
  Ms. COLLINS Mr. President, I am pleased to join as a cosponsor of the 
``Innocence Protection Act.''
  Since the reinstatement of capital punishment in 1976, 610 people 
have been executed in our nation. In that same period of time, an 
astounding 87 people who were sentenced to die have been found innocent 
and released from death row. Each of these individuals has lived the 
Kafkaesque nightmare of condemnation and imprisonment for crimes they 
have not committed. It is

[[Page S4684]]

difficult to imagine the despair and betrayal these individuals must 
have felt as they were accused, tried, convicted and sentenced, all the 
time knowing they were not guilty. And during all those years they 
remained in prison, the real perpetrators remained at large.
  I am an opponent of the death penalty, and I am proud to be from the 
State of Maine which outlawed the death penalty in 1887. The 
legislation we introduce today is, however, not an anti-death penalty 
measure.
  The legislation we introduce today simply requires logical safeguards 
to be put in place to prevent wrongful convictions. Its two most 
important provisions compel DNA testing where it can yield evidence of 
innocence, and puts in place a new process to ensure defendants receive 
competent counsel in death penalty cases.
  The ``Innocence Protection Act'' calls on the federal government and 
the states to make DNA testing available in circumstances where it 
could yield new evidence of innocence. The incidents in which DNA 
testing has exonerated individuals are not isolated--64 people have 
been released from prison or death row due to DNA testing.
  Linus Pauling once said that ``science is the search for truth.'' 
Through DNA testing, science provides a tool that can uncover the 
truth, and lend certainty to our moral obligation in a civilized 
society--proper administration of our criminal justice system.
  The legislation we introduce today assists the wrongfully convicted, 
and will help prevent the miscarriages of justices that have seemed 
sadly common. It will also serve the interests of justice and protect 
crime victims. Justice is never served until the true perpetrator of a 
crime is identified, convicted and punished. We owe it to the victims 
and their families to pursue every avenue to find and hold accountable 
the true criminals who have injured them.
  Our American ideals and sense of justice simply cannot tolerate the 
current risk for mistaken executions. The case of Mr. Anthony Porter 
should shock the conscience of America. Mr. Porter spent over 16 years 
on death row, and at one point he was only two days short of receiving 
a lethal injection, having been convicted of two murders. A determined 
group of journalism students investigated his case and uncovered 
evidence that exonerated Mr. Porter. It was only through their efforts 
that the identity of the real murderer was determined, a review of the 
case compelled, and Mr. Porter ultimately freed. The peculiar good 
fortune that lead to the release of Mr. Porter undeniably highlights a 
weakness in our system of justice that cries out for remedy.
  Nothing that we can do here today can restore those years to Mr. 
Porter, or others who have been wrongly convicted, but we can demand 
safeguards be put in place to protect the innocent from conviction, and 
protect society from real criminals who may remain loose on our 
streets. Regardless of one's views about the death penalty, I hope we 
all can agree to needed safeguards to help ensure that justice is 
served.
  Thank you, Mr. President, I yield the floor.
 Mr. FEINGOLD. Mr. President, I am extremely pleased to join my 
distinguished colleague from Vermont and ranking member of the 
Judiciary Committee, Senator Leahy, as a cosponsor of the Innocence 
Protection Act of 2000. I commend him for his leadership on this 
important legislation. The insight and unique experience that he brings 
to this issue as a former federal prosecutor is invaluable. I have no 
doubt that because of his leadership and diligence, Americans have 
recently become more aware of the important role that the certainty of 
science can have in our criminal justice system. Improvements in DNA 
testing have allowed us to determine with greater accuracy whether 
certain offenders committed the crime that sent them to prison, 
including, very importantly, of course, those who have been condemned 
to death row.
  Since the 1970s, 87 people sentenced to die were later proven 
innocent. Some of those innocent death row inmates were able to prove 
their innocence based on modern DNA testing of biological evidence. 
But, Mr. President, this is not just about ensuring that we not condemn 
the innocent. DNA testing can also ensure that the guilty person not go 
free. DNA testing can be a tool for the prosecution to determine 
whether they have the right person.
  Over the last several months, I have spoken often on the floor about 
the serious flaws in the administration of capital punishment across 
the nation. I strongly support Senator Leahy's bill. It is a much over-
due package of reforms that goes after some of the worst failings in 
our nation's administration of capital punishment--those that are 
unfair, unjust and plain just un-American.
  Very simply, Senator Leahy's bill can help save lives. His bill would 
make it less likely for an innocent man or woman to be sent to death 
row, where biological evidence is central to the issue of guilt or 
innocence. The bill also would make it more likely that a poor person 
receive adequate defense representation and less likely that a poor 
person gets stuck with a lawyer that sleeps through trial. Yesterday, I 
spoke on the floor about specific examples of such cases of egregious 
failings of defense counsel.
  We must ensure the utmost fairness in the administration of this 
ultimate punishment. I hope our colleagues--both those who support the 
death penalty in principle and those who oppose it--will join together 
in fixing this broken system and restoring fairness and justice. All 
Americans demand and deserve no less.
  Mr. President, I think it is very significant that this important 
bill now has bipartisan support. I want to thank and commend my 
colleagues, Senators Gordon Smith, Susan Collins and James Jeffords, 
for recognizing that flaws exist in our system of justice and 
acknowledging that something has to be done about it. I hope this is a 
sign that we can work together with the very real goal of passing this 
bill this year. Until we do so, the lives of innocent people literally 
hang in the balance.
                                 ______