[Congressional Record Volume 146, Number 132 (Thursday, October 19, 2000)]
[Senate]
[Pages S10793-S10795]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE INNOCENCE PROTECTION ACT

  Mr. LEAHY. Mr. President, I have come to the floor several times this 
year to focus attention on the national crisis in the administration of 
the death penalty. I rise today, in what I hope are the closing days of 
the 106th Congress, to report on how far we have come on this issue in 
Congress and across the country, and to discuss the important work that 
is yet to be done.
  In recent years, many grave flaws in the capital punishment system 
nationwide have come to light. Time and again, across the nation, we 
have heard about racial disparities, incompetent counsel who make a 
mockery of our adversarial process, testimony and scientific evidence 
that is hidden from the court, and the ultimate injustice, the 
conviction and sentencing to death of innocent people.
  In the last quarter century, some 88 people have been released from 
death row, not on technicalities, but because they were innocent. Those 
people were the ``lucky'' ones; we simply do not know how many innocent 
people remain on death row, and how many have been executed.
  Earlier this year, after it came to light that his State had sent 
more innocent people to death row than it had executed guilty people, 
Governor Ryan announced a moratorium on executions in Illinois and 
launched a systematic inquiry into the crisis and to consider possible 
reforms.
  At around the same time, along with colleagues from both sides of the 
aisle, from the Senate and from the House, I introduced the Innocence 
Protection Act as a first step to stimulate a national debate and 
inquiry and begin work on national reforms on what is a nationwide 
problem.
  Almost a year later, our informal national public inquiry has yielded 
a wealth of evidence. The American people have reached some compelling 
findings. And our reform effort has gained the endorsement, and--more 
important--the wisdom and insight, of Republicans and Democrats, of 
judges, law enforcers and defense attorneys, and of scholars and 
ordinary people who have experienced the system first hand.
  The evidence has shown that the system is broken, and the American 
people are demanding that it be fixed or scrapped. We have meaningful, 
carefully considered reforms ready to be put into place. It is now time 
for Congress to act.
  Let me first review just a few highlights of the evidence that has 
mounted since we first introduced the bill.
  On June 12, Professor James Liebman of the Columbia Law School 
released the most comprehensive statistical study ever undertaken of 
modern American capital appeals. This rigorous study, which was nine 
years in the making, revealed a death penalty system fraught with error 
reaching crisis proportions. It revealed a system that routinely makes 
grave errors, and then hopes haphazardly and belatedly to correct them 
years later by a mixture of state court review, federal court review 
and a large dose of luck.
  During the 23-year study period, courts across the country threw out 
nearly seven out of every ten capital sentences because of serious 
errors that undermined the reliability of the outcome. The single most 
common error, the study showed, was egregiously incompetent defense 
lawyering.

[[Page S10794]]

  Before the Columbia study came out, there was speculation that the 
problems in the administration of the death penalty were confined to a 
few atypical States with lax procedures. That is clearly not the case. 
The study documented high error rates across the country, in nearly 
every death penalty State. It left no room for doubt: This is not a 
local problem, this is a national problem, and it requires a national 
response.
  Shortly after the Columbia study issued, the Senate and House 
Judiciary Committees held hearings to consider some of the issues 
raised by the Innocence Protection Act. I had hoped that these hearings 
would be the first in a series of hearings that would help focus the 
Congress' attention on steps we can take to help restore public 
confidence in our death penalty system.
  The Committees heard from judges, prosecutors, and defense attorneys 
about when and how post-conviction DNA testing should be required by 
law, and about the overwhelming importance of providing the accused 
with qualified and adequately funded defense counsel.
  We also heard from two men who between them spent over 20 years in 
prison for crimes they did not commit before being cleared by DNA 
evidence and freed. One of these men, Dennis Fritz, was represented at 
trial by a civil liability lawyer who had never handled any type of 
criminal case, much less a capital murder case. When Mr. Fritz finally 
got access to the crime scene evidence for DNA testing, the results not 
only cleared him, they also cleared his codefendant, who had come 
within five days of being executed. The tests also established the 
identity of the real killer.
  Now, hardly a month goes by that we do not hear about more wrongfully 
convicted people who owe their freedom to DNA testing.
  Most recently, on October 2, 2000, the Governor of Virginia finally 
pardoned Earl Washington, after new DNA tests confirmed what earlier 
DNA tests had shown: He was the wrong guy. Earl Washington's case only 
goes to show that we cannot sit back and assume that prosecutors and 
courts will do the right thing when it comes to DNA. It took Earl 
Washington years to convince prosecutors to do the very simple tests 
that would prove his innocence, and more time still to win a pardon. 
And he is still in prison today.

  Several other recent reports have provided additional evidence of a 
system in crisis. The Justice Department released a report in September 
concerning the administration of the Federal death penalty. The report 
revealed dramatic racial and geographic disparities in the Federal 
death penalty system. Of the 682 cases submitted to the Justice 
Department in the last five years for approval to seek the death 
penalty, 80 percent involved defendants who were black, Hispanic, or 
another racial minority, and five jurisdictions accounted for about 40 
percent of the submissions.
  Also in September, the Charlotte Observer published a study of 
capital cases in the Carolinas, which found that those who are on trial 
for their lives are often represented by the legal profession's worst 
attorneys. The high stress and low pay of capital trials limits the 
pool of lawyers willing to take them on. Some lawyers abuse drugs and 
alcohol, some fail to investigate evidence that could clear their 
client. Judges in the Carolinas have overturned at least 15 death 
verdicts because of serious errors made by defense lawyers, and another 
16 death row inmates were represented at trial by lawyers who were 
later disbarred or disciplined for unethical conduct.
  Much has been written about the appalling state of affairs in the 
State of Texas. The Dallas Morning News reported on September 10 that 
more than 100 prisoners awaiting execution in Texas as of May 1--about 
one in four convicts on Texas's death row--has been defended by court-
appointed lawyers who have been reprimanded, placed on probation, 
suspended, or banned from practicing law by the State Bar of Texas.
  The infractions that triggered the extraordinary step of bar 
discipline included failing to appear in court, falsifying documents, 
failing to present key witnesses, and allowing clients to lie. In about 
half of these instances, the misconduct occurred before the attorney 
was appointed to handle the capital case.
  Just this week, a comprehensive new report by the Texas Defender 
Service described that State's death penalty system as thoroughly 
flawed and in dire need of change because of problems like racial bias, 
prosecutorial misconduct and incompetent defense counsel. The report, 
which reviews hundreds of cases and appeals, confirmed that indigent 
defendants in Texas are routinely represented in trials and during 
appeals by underpaid court-appointed lawyers who are inexperienced, 
inept, or uninterested.
  These lawyers spend little time on the cases and present inadequate 
arguments and flawed defenses. In several notorious cases, defense 
lawyers slept in court, drank heavily, or used illegal drugs during a 
death penalty case.
  Time and again, we hear defenders of the status quo say that as long 
as an accused person has access to the courts, the system is working 
properly. Statements of this sort reflect either ignorance or worse. 
The question we must ask is whether the promise of access to the courts 
is real, or just a cruel joke. Does access mean meaningful access, with 
qualified defense counsel who know what they are doing and have the 
resources to do the job properly, or does it mean merely token access. 
The evidence shows that it is too often the latter.
  The evidence is overwhelming that the capital punishment system is 
broken--not just in Illinois, where the high error rate has prompted a 
moratorium on executions--not just in Texas, with its sleeping lawyers 
and racial biases--but across the Nation.
  The people have heard this evidence, and they know this. A recent 
poll conducted by Peter D. Hart Research, a Democratic research firm, 
and American Viewpoint, a Republican research firm, shows that the 
public discourse on the death penalty has matured from a debate over 
whether the death penalty system is broken into a constructive dialogue 
on how broken it is, and about how much reform we need to fix it--if 
indeed it can be fixed at all.
  New developments in DNA technology have helped expose some of the 
flaws in the system, and they have been invaluable in freeing innocent 
Americans like Dennis Fritz. But the public knows that the injustices 
revealed by DNA testing are just the tip of the iceberg. The central 
theme running through the vast majority of the tragedies we have seen 
has been incompetent, under-funded trial counsel making a mockery of 
our adversarial system.
  Any reform that does not deal with the counsel issue is inadequate. 
The American people understand this. When it comes to matters of life 
and death, most Americans--55 percent of those surveyed--believe that 
it is not enough to ensure access to DNA testing without also ensuring 
access to competent and experienced defense counsel.
  There is one more key lesson to be learned from listening to the 
American people. We are a nation founded on tolerance, but not 
tolerance of incompetence and failure. When there's a broken product 
out there endangering innocent lives, Americans rightly demand that it 
be fixed or recalled. Some irresponsible corporations are currently 
learning what comes of those who continue to put more and more broken, 
dangerous products into circulation.
  As conservatives like George Will have pointed out, there is a 
parallel American tradition that we here in Washington know well of 
demanding that incompetent officials and broken government programs 
shape up or face the scrap heap.
  Now that they have heard the evidence, Americans are ready to apply 
that same common sense to the government program known as the death 
penalty. Americans may be divided on whether the capital punishment 
system needs to be recalled, but there is a clear and growing consensus 
that the system needs to be reformed. An overwhelming majority--some 80 
percent of those surveyed--want to see concrete measures to ensure 
competent and adequately funded counsel.
  An even larger majority--nearly 90 percent of those surveyed--want to 
ensure that death row inmates can obtain DNA testing.
  When a government program has a record of incompetence, failure, and

[[Page S10795]]

harming innocent lives, ordinary Americans say fix it or scrap it; do 
not under any circumstances expand it. In the past few years, as the 
defects of our capital punishment system have become more and more 
obvious, the States have largely ignored the problem, while they have 
expanded the program, executing more and more people. Neither history, 
nor the American people, will be kind to a Congress that stands by and 
does nothing while this trend continues.
  The evidence has shown that the death penalty is broken; the American 
people know the death penalty is broken; and they are calling upon us, 
their elected representatives, to fix it or scrap it.
  The bipartisan Innocence Protection Act is a real, practical response 
to that demand. Of critical importance, it meaningfully addresses not 
just the tip of the iceberg--DNA testing--but also the bulk of the 
problem--ineffective and under-funded defense counsel.
  Our bill does not go as far as some Americans would like. It does not 
scrap the death penalty; it does not place a moratorium on executions; 
and it does not tackle all the injustices inflicted upon racial 
minorities and the mentally retarded by the present capital punishment 
system. Rather, it embodies a consensus approach, informed by the 
wisdom of Democrats and Republicans in the Senate and House, the 
Department of Justice and experts and ordinary Americans on all sides 
of our criminal justice system.
  Because of this, it has been gaining ground. We now have 14 
cosponsors in the Senate, and about 80 in the House. We have Democratic 
and Republican cosponsors, supporters of the death penalty and 
opponents. President Clinton, Vice-President Gore, and Attorney General 
Reno have all expressed support for the bill.
  I had hoped that my colleagues would heed the American people's call 
for practical, bipartisan reform and expedite passage of this important 
legislation. Unfortunately, every opportunity for progress has been 
squandered. Even with respect to post-conviction DNA testing, where 
there is strong bipartisan consensus that federal legislation is 
appropriate and necessary, we could not even manage to report a bill 
out of committee.
  While our lack of progress on Federal legislation is regrettable, 
there have been some positive developments that may facilitate broader 
access to post-conviction DNA testing. On September 29, a federal 
district judge in Virginia held that State prisoners may file federal 
civil rights suits seeking DNA testing, reasoning that the denial of 
possibly exculpatory evidence states a claim of denial of due process. 
If this decision is upheld, it could go a long way toward persuading 
State prosecutors and courts to stop stonewalling on requests for 
postconviction DNA testing.
  I was also greatly heartened this week to read that the Virginia 
Supreme Court has moved to eliminate that State's shortest-in-the-
nation deadline for death row inmates to introduce new evidence of 
their innocence. Currently, inmates in Virginia have only 21 days after 
their sentencing to ask for a new trial based on new information. The 
proposed rule change would re-open Virginia's courts to inmates like 
Earl Washington, who had to wait six years for a Governor to order 
additional DNA tests and grant a pardon.
  Outside of Virginia, some State legislatures have begun considering 
the need for criminal justice reforms. Since the initial introduction 
of the Innocence Protection Act early this year, Arizona, California, 
Oklahoma, Tennessee, and Washington have passed laws providing 
prisoners greater access to post-conviction DNA testing, and other 
States are considering similar measures. I am especially pleased that 
California's legislators saw fit to model their law in part on the 
Innocence Protection Act.
  By contrast, Tennessee's statute allows post-conviction DNA testing 
only to prisoners under sentence of death, leaving the vast majority of 
prisoners without access to what could be the only means of 
demonstrating their innocence. And neither of these laws addresses the 
larger and more urgent problem of ensuring that capital defendants 
receive competent legal representation. There is still much to do.
  There can no longer be any doubt that our nation's capital punishment 
system is in crisis. I urge my colleagues on both sides of the aisle, 
those who support the death penalty, and those who oppose it, let us 
work together to find solutions.

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