[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Senate]
[Pages S7819-S7820]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE INNOCENCE PROTECTION ACT OF 2000
Mr. LEAHY. Mr. President, at the beginning of this year, I spoke to
the Senate about the breakdown in the administration of capital
punishment across the country and suggested some solutions. I noted
then that for every 7 people executed, 1 death row inmate has been
shown some time after conviction to be innocent of the crime.
Since then, many more fundamental problems have come to light. More
court-appointed defense lawyers who have slept through trials in which
their client has been convicted and sentenced to death; more cases--43
of the last 131 executions in Texas according to an investigation by
the Chicago Tribune--in which lawyers who were disbarred, suspended or
otherwise being disciplined for ethical violations have been appointed
to represent people on trial for their lives; cases in which
prosecutors have called for the death penalty based on the race of the
victim; and cases in which potentially dispositive evidence has been
destroyed or withheld from death row inmates for years.
We have also heard from the National Committee to Prevent Wrongful
Executions, a blue-ribbon panel 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. That diverse group
of experts has expressed itself to be ``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.''
I have been working with prosecutors, judges and defense counsel,
with death penalty supporters and opponents, and with Democrats and
Republicans, to craft some basic common-sense reforms. I could not be
more pleased that Senators Gordon Smith, Susan Collins, Jim Jeffords,
Carl Levin, Russ Feingold, and others here in the Senate, and
Representatives Ray LaHood, William Delahunt, and over 60 other members
of both parties in the House have joined me in sponsoring the Innocence
Protection Act of 2000.
The two most basic provisions of our bill would encourage the State
to at
[[Page S7820]]
least make DNA testing available in the kind of case in which it can
determine guilt or innocence and at least provide basic minimum
standards for defense counsel so that capital trials have a chance of
determining guilt or innocence by means of the adversarial testing of
evidence that should be the hallmark of American criminal justice.
Our bill will not free the system of all human error, but it will do
much to eliminate errors caused by the willful blindness to the truth
that our capital punishment system has exhibited all too often. That is
the least we should demand of a justice system that puts people's lives
at stake.
I have been greatly heartened by the response of experts in criminal
justice across the political spectrum to our careful work, and I would
like to just highlight one example. A distinguished member of the
Federal judiciary, Second Circuit Judge Jon O. Newman, has suggested
that America's death penalty laws could be improved by requiring the
trial judge to certify that guilt is certain. I welcome Judge Newman's
thoughtful commentary, and I ask unanimous consent that his article,
which appeared in the June 25th edition of the Harford Courant, be
printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. LEAHY. It is my hope that the national debate on the death
penalty will continue, and that people of good conscience--both those
who support the death penalty and those who oppose it--will join in our
effort to make the system more fair and so reduce the risk that
innocent people may be executed.
Exhibit 1
[From the Harford Courant, June 25, 2000]
Require Certainty Before Executing
(By Jon O. Newman)
The execution of Gary Graham demonstrates the need to make
one simple change in America's death penalty laws: a
requirement that no death sentence can be imposed unless the
trial judge certifies that the evidence establishes the
defendant's guilt to a certainty.
Under current law, a death sentence requires first a jury's
finding of guilt of a capital crime and then a jury's
selection of the death penalty. In deciding both guilt and
the death penalty, the jury must be persuaded beyond a
reasonable doubt. That is a high standard, but it is not as
high as a requirement that the trial judge certify that guilt
is certain.
Experience has shown that in some cases juries have been
persuaded beyond a reasonable doubt to convict and vote the
death penalty even though the defendant is innocent. The most
common reason is that one or more eyewitnesses said they saw
the defendant commit the crime, but it later turned out that
they were mistaken, as eyewitnesses sometimes are.
But when even one eyewitness testifies that the defendant
did it, that is sufficient evidence for a jury to find guilt
beyond a reasonable doubt, and neither the trial judge nor
the appellate judges can reject the jury's guilty verdict
even though they have some doubt whether the eyewitness is
correct.
Our system uses the standard of proof beyond a reasonable
doubt, rather than certainty, to determine guilt and thereby
accepts the risk that in rare cases a guilty verdict might be
rendered against an innocent person. Procedures are available
for presenting new and sometimes conclusive evidence of
innocence at a later time.
But with the death penalty, such exonerating evidence
sometimes comes too late. Every effort should therefore be
made to assure that the risk of executing an innocent person
is reduced as low as humanly possible.
Requiring the trial judge to certify that guilt has been
proven to a certainty before a death penalty can be imposed
would limit the death penalty to cases where innocence is not
realistically imaginable, leaving life imprisonment for those
whose guilt is beyond a reasonable doubt but not certain.
Certification of certainty might be withheld, for example,
in cases like Gary Graham's, where the eyewitness had only a
fleeting opportunity to see an assailant whom the witness did
not previously know, or in cases where the principal accusing
witness has previously lied or has a powerful incentive to
lie to gain leniency for himself.
On the other hand, certification would be warranted where
untainted DNA, fingerprint or other forensic evidence
indisputably proved guilt or where the suspect was caught in
the commission of the crime.
In state courts (unlike Connecticut's) where judges are
elected and sometimes succumb to public pressure to impose
death sentences, certification of certainty might be
entrusted to a permanent expert panel or might be made a
required part of the commutation decision of a governor or a
pardons board. In federal courts, the task could
appropriately be given to appointed trial judges.
Even certification of certainty of guilt will not eliminate
all risk of executing an innocent person. But as long as the
death penalty is used this is a safeguard that a civilized
society should require. Adding it to the innocence protection
bill now being considered in Congress would help that act
live up to its name.
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