[Congressional Record Volume 147, Number 29 (Wednesday, March 7, 2001)]
[Senate]
[Pages S1999-S2006]
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. Feingold, Mr. Jeffords, Mr. Kennedy, Mr. Chafee, Mr. 
        Akaka, Ms. Mikulski, Mr. Dodd, Mr. Lieberman, Mr. Torricelli, 
        Mr. Wellstone, Mrs. Boxer, and Mr. Corzine):
  S. 486. A bill to reduce the risk that innocent persons may be 
executed, and for other purposes; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, a little over one year ago, I came to this 
floor to draw attention to the growing crisis in the administration of 
capital punishment. I noted the startling number of cases, 85, in which 
death row inmates had been exonerated after long stays in prison. In 
some of those cases, the inmate had come within days of being executed.
  A lot has happened in a year. For one thing, a lot more death row 
inmates have been exonerated. The number jumped in a single year from 
85 all the way to 95. There are now 95 people in 22 States who have 
been cleared of the crime that sent them to death row, according to the 
Death Penalty Information Center. The appalling number of exonerations, 
and the fact that they span so many States, a substantial majority of 
the States that have the death penalty, makes it clearer than ever that 
the crisis I spoke of last year is real, and that it is national in its 
scope. This is not an ``Illinois problem'' or a ``Texas problem.'' Nor, 
with Earl Washington's release last month from prison, is it a 
``Virginia problem.'' There are death penalty problems across the 
nation, and as a nation we need to pay attention to what is happening.
  It seems like every time you pick up a paper these days, there is 
another story about another person who was sentenced to death for a 
crime that he did not commit. The most horrifying miscarriages of 
justice are becoming commonplace: ``Yet Another Innocent Person Cleared 
By DNA, Walks Off Death Row,'' story on page 10. We should never forget 
that behind each of these headlines is a person whose life was 
completely shattered and nearly extinguished by a wrongful conviction.
  And those were the ``lucky'' ones. We simply do not know how many 
innocent people remain on death row, and how many may already have been 
executed.
  People of good conscience can and will disagree on the morality of 
the death penalty. I have always opposed it. I did when I was a 
prosecutor, and I do today. But no matter what you believe about the 
death penalty, no one wants to see innocent people sentenced to death. 
It is completely unacceptable.
  A year ago, along with several of my colleagues, I introduced the 
Innocence Protection Act of 2000. I hoped this bill would stimulate a 
national debate and begin work on national reforms on what is, as I 
said, a national problem. A year later, the national debate is well 
under way, but the need for real, concrete reforms is more urgent than 
ever.
  Today, my friend Gordon Smith and I are introducing the Innocence 
Protection Act of 2001. We 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 Senators Susan 
Collins and Lincoln Chafee, and my fellow Vermonter Jim Jeffords. On 
the Democratic side, my thanks to Senators Levin, Feingold, Kennedy, 
Akaka, Mikulski, Dodd, Lieberman, Torricelli, Wellstone, Boxer and 
Corzine. I also want to thank our House sponsors William Delahunt, and 
Ray LaHood, along with their 117 additional cosponsors, both Democratic 
and Republican.
  Over the last year we have turned the corner in showing that the 
death process is broken. Now we will push forward to our goal of acting 
on reforms that address these problems.
  Here on Capitol Hill it is our job to represent the public. The 
scores of legislators who have sponsored this legislation clearly do 
represent the American public, both in their diversity and in their 
readiness to work together in a bipartisan manner for common-sense 
solutions.
  Too often in this chamber, we find ourselves dividing along party or 
ideological lines. The Innocence Protection Act 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.
  The goal of our bill is simple, but profoundly important: to reduce 
the risk of mistaken executions. The Innocence Protection Act proposes 
basic, common-sense reforms to our criminal justice system that are 
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. We have listened 
to a lot of good advice and made some refinements to the bill since the 
last Congress, but it is still structured around

[[Page S2000]]

two principal reforms: improving the availability of DNA testing, and 
ensuring reasonable minimum standards and funding for court-appointed 
counsel.
  The need to make DNA testing more available is obvious. DNA is the 
fingerpint of the 21st Century. Prosecutors across the country use it, 
and rightly so, to prove guilt. By the same token, it should be used to 
do what it is equally scientifically reliable to do, prove innocence. 
Our bill would provide broader access to DNA testing by convicted 
offenders. It would also prevent the premature destruction of 
biological evidence that could hold the key to clearing an innocent 
person or identifying the real culprit.
  I am gratified that our bill has served as a catalyst for reforms in 
the States with respect to post-conviction DNA testing. In just one 
year, several States have passed some form of DNA legislation. Others 
have DNA bills under consideration. Much of this legislation is modeled 
on the DNA provisions proposed in the Innocence Protection Act, and we 
can be proud about this.
  But there are still many States that have not moved on this issue, 
even though it has been more than six years since New York passed the 
Nation's first post-conviction DNA statute. And some of the States that 
have acted have done so in ways that will leave the vast majority of 
prisoners without access to DNA testing. Moreover, none of these new 
laws addresses the larger and more urgent problem of ensuring that 
people facing the death penalty have adequate legal representation. The 
Innocence Protection Act does address this problem.

  In our adversarial system of justice, effective assistance of counsel 
is essential to the fair administration of justice. Unfortunately, the 
manner in which defense lawyers are selected and compensated in death 
penalty cases too often results in fundamental unfairness and 
unreliable verdicts. More than two-thirds of all death sentences are 
overturned on appeal or after post-conviction review because of errors 
in the trial; such errors are minimized when the defendant has a 
competent counsel.
  It is a sobering fact that in some areas of the Nation it is often 
better to be rich and guilty than poor and innocent. All too often, 
lawyers defending people whose lives are at stake are inexperienced, 
inept, or just plain incompetent. All too often, they fail to take the 
time to review the evidence and understand the basic facts of the case 
before the trial is under way.
  The reasons for this inadequacy of representation are well know: lack 
of standards for choosing defense counsel, and lack of funding for this 
type of legal service. The Innocence Protection Act addresses these 
problems head on. It calls for the creation of a temporary Commission 
on Capital Representation, which would consist of distinguished 
American legal experts who have experienced the criminal justice system 
first hand, prosecutors, defense lawyers, and judges. The Commission 
would be tasked with formulating standards that specify the elements of 
an effective system for providing adequate representation in capital 
cases. The bill also authorizes more than $50,000,000 in grants to help 
put the new standards into effect.
  We have consulted a great many legal experts in the course of 
formulating these provisions. They have all provided valuable insights, 
but as a former prosecutor myself, I have been particularly pleased 
with the encouragement and assistance we have received from prosecutors 
across the nation.
  Good prosecutors have two things in common. First, good prosecutors 
want to convict the person, not to get a conviction that may be a 
mistake, and that may leave the real culprit in the clear. Second, good 
prosecutors want defendants to be represented by good defense lawyers. 
Lawyers who investigate their client's cases thoroughly before trial, 
and represent their clients vigorously in court, are essential in 
getting at the truth in our adversarial system.
  Given some leadership from the people's representatives in Congress, 
some fair and objective standards, and some funding, America's 
prosecutors will be ready, willing and able to help fix the system. We 
owe them, and the American people, that leadership.
  On August 3, 1995, more than five years ago, the Conference of Chief 
Justices urged the judicial leadership in each State in which the death 
penalty is authorized by law to ``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.'' The States' top jurists, the people who 
run our justice system, called for reform. But not much came of their 
initiative. Although a few States have established effective standards 
and sound administrative systems for the appointment and compensation 
of counsel in capital cases, most have not. The do-nothing politics of 
gridlock got in the way of sensible, consensus-based reform.
  We have made a commitment to the American people to do better than 
that. At the end of the last Congress, members on both sides of the 
aisle joined together to pass the Paul Coverdell National Forensic 
Sciences Improvement Act and the DNA Analysis Backlog Elimination Act. 
I strongly supported both bills, which will give States the help they 
desperately need to reduce the backlogs of untested DNA evidence in 
their crime labs, and to improve the quality and capacity of these 
facilities. Both bills passed unanimously in both houses. And in both 
bills, all of us here in Congress committed ourselves to working with 
the States to ensure access to post-conviction DNA testing in 
appropriate cases, and to improve the quality of legal representation 
in capital cases through the establishment of counsel standards. 
Congress has already gone on record in recognizing what has to be done. 
Now it is time to actually do it.
  If we had a series of close calls in airline traffic, we would be 
rushing to fix the problem. These close calls on death row should 
concentrate our minds, and focus our will, to act.
  This new Congress is, as our new President has said, a time for 
leadership. It is a time for fulfilling the commitments we have made to 
the American people. And it is a time for action. The Innocence 
Protection Act is a bipartisan effort to move beyond the politics of 
gridlock. By passing it, we can work cooperatively with the States to 
ensure that defendants who are put on trial for their lives have 
competent legal representation at every stage of their cases. By 
passing it, we can send a message about the values of fundamental 
justice that unite all Americans. And by passing it, we can 
substantially reduce the risk of executing innocent people. We have had 
a constructive debate, and we have made a noble commitment. It is now 
time to act.
  I ask unanimous consent that the text of the bill and a summary of 
the bill be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 486

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Innocence 
     Protection Act of 2001''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

         TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

Sec. 101. Findings and purposes.
Sec. 102. Post-conviction DNA testing in Federal criminal justice 
              system.
Sec. 103. Post-conviction DNA testing in State criminal justice 
              systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.
Sec. 105. Grants to prosecutors for DNA testing programs.

      TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

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

                  TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.
Sec. 303. Certification requirement in Federal death penalty 
              prosecutions.
Sec. 304. Alternative of life imprisonment without possibility of 
              release.
Sec. 305. Right to an informed jury.
Sec. 306. Annual reports.
Sec. 307. Sense of Congress regarding the execution of juvenile 
              offenders and the mentally retarded.

[[Page S2001]]

         TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

     SEC. 101. FINDINGS AND PURPOSES.

       (a) Findings.--Congress makes the following findings:
       (1) Over the past decade, deoxyribonucleic acid testing 
     (referred to in this section as ``DNA testing'') has emerged 
     as the most reliable forensic technique for identifying 
     criminals when biological material is left at a crime scene.
       (2) Because of its scientific precision, DNA testing can, 
     in some cases, conclusively establish the guilt or innocence 
     of a criminal defendant. In other cases, DNA testing may not 
     conclusively establish guilt or innocence, but may have 
     significant probative value to a finder of fact.
       (3) While DNA testing is increasingly commonplace in 
     pretrial investigations today, it was not widely available in 
     cases tried prior to 1994. Moreover, new forensic DNA testing 
     procedures have made it possible to get results from minute 
     samples that could not previously be tested, and to obtain 
     more informative and accurate results than earlier forms of 
     forensic DNA testing could produce. Consequently, in some 
     cases convicted inmates have been exonerated by new DNA tests 
     after earlier tests had failed to produce definitive results.
       (4) Since DNA testing is often feasible on relevant 
     biological material that is decades old, it can, in some 
     circumstances, prove that a conviction that predated the 
     development of DNA testing was based upon incorrect factual 
     findings. Uniquely, DNA evidence showing innocence, produced 
     decades after a conviction, provides a more reliable basis 
     for establishing a correct verdict than any evidence 
     proffered at the original trial. DNA testing, therefore, can 
     and has resulted in the post-conviction exoneration of 
     innocent men and women.
       (5) In more than 80 cases in the United States, DNA 
     evidence has led to the exoneration of innocent men and women 
     who were wrongfully convicted. This number includes at least 
     10 individuals sentenced to death, some of whom came within 
     days of being executed.
       (6) In more than a dozen cases, post-conviction DNA testing 
     that has exonerated an innocent person has also enhanced 
     public safety by providing evidence that led to the 
     identification of the actual perpetrator.
       (7) Experience has shown that it is not unduly burdensome 
     to make DNA testing available to inmates. The cost of that 
     testing is relatively modest and has decreased in recent 
     years. Moreover, the number of cases in which post-conviction 
     DNA testing is appropriate is small, and will decrease as 
     pretrial testing becomes more common.
       (8) Under current Federal and State law, it is difficult to 
     obtain post-conviction DNA testing because of time limits on 
     introducing newly discovered evidence. Under Federal law, 
     motions for a new trial based on newly discovered evidence 
     must be made within 3 years after conviction. In most States, 
     those motions must be made not later than 2 years after 
     conviction, and sometimes much sooner. The result is that 
     laws intended to prevent the use of evidence that has become 
     less reliable over time have been used to preclude the use of 
     DNA evidence that remains highly reliable even decades after 
     trial.
       (9) The National Commission on the Future of DNA Evidence, 
     a Federal panel established by the Department of Justice and 
     comprised of law enforcement, judicial, and scientific 
     experts, has urged that post-conviction DNA testing be 
     permitted in the relatively small number of cases in which it 
     is appropriate, notwithstanding procedural rules that could 
     be invoked to preclude that testing, and notwithstanding the 
     inability of an inmate to pay for the testing.
       (10) Since New York passed the Nation's first post-
     conviction DNA statute in 1994, only a few States have 
     adopted post-conviction DNA testing procedures, and some of 
     these procedures are unduly restrictive. Moreover, only a 
     handful of States have passed legislation requiring that 
     biological evidence be adequately preserved.
       (11) In 1994, Congress passed the DNA Identification Act, 
     which authorized the construction of the Combined DNA Index 
     System, a national database to facilitate law enforcement 
     exchange of DNA identification information, and authorized 
     funding to improve the quality and availability of DNA 
     testing for law enforcement identification purposes. In 2000, 
     Congress passed the DNA Analysis Backlog Elimination Act and 
     the Paul Coverdell Forensic Sciences Improvement Act, which 
     together authorized an additional $908,000,000 over 6 years 
     in DNA-related grants.
       (12) Congress should continue to provide financial 
     assistance to the States to increase the capacity of State 
     and local laboratories to carry out DNA testing for law 
     enforcement identification purposes. At the same time, 
     Congress should insist that States which accept financial 
     assistance make DNA testing available to both sides of the 
     adversarial system in order to enhance the reliability and 
     integrity of that system.
       (13) In Herrera v. Collins, 506 U.S. 390 (1993), a majority 
     of the members of the Court suggested that a persuasive 
     showing of innocence made after trial would render the 
     execution of an inmate unconstitutional.
       (14) It shocks the conscience and offends social standards 
     of fairness and decency to execute innocent persons or to 
     deny inmates the opportunity to present persuasive evidence 
     of their innocence.
       (15) If biological material is not subjected to DNA testing 
     in appropriate cases, there is a significant risk that 
     persuasive evidence of innocence will not be detected and, 
     accordingly, that innocent persons will be unconstitutionally 
     executed.
       (16) Given the irremediable constitutional harm that would 
     result from the execution of an innocent person and the 
     failure of many States to ensure that innocent persons are 
     not sentenced to death, a Federal statute assuring the 
     availability of DNA testing and a chance to present the 
     results of testing in court is a congruent and proportional 
     prophylactic measure to prevent constitutional injuries from 
     occurring.
       (b) Purposes.--The purposes of this title are to--
       (1) substantially implement the Recommendations of the 
     National Commission on the Future of DNA Evidence in the 
     Federal criminal justice system, by authorizing DNA testing 
     in appropriate cases;
       (2) prevent the imposition of unconstitutional punishments 
     through the exercise of power granted by clause 1 of section 
     8 and clause 2 of section 9 of article I of the Constitution 
     of the United States and section 5 of the 14th amendment to 
     the Constitution of the United States; and
       (3) ensure that wrongfully convicted persons have an 
     opportunity to establish their innocence through DNA testing, 
     by requiring the preservation of DNA evidence for a limited 
     period.

     SEC. 102. POST-CONVICTION DNA TESTING IN FEDERAL CRIMINAL 
                   JUSTICE SYSTEM.

       (a) In General.--Part VI of title 28, United States Code, 
     is amended by inserting after chapter 155 the following:

                       ``CHAPTER 156--DNA TESTING

``Sec.
``2291. DNA testing.
``2292. Preservation of evidence.

     ``Sec. 2291. DNA testing

       ``(a) Application.--Notwithstanding any other provision of 
     law, a person convicted of a Federal crime may apply to the 
     appropriate Federal court for DNA testing to support a claim 
     that the person did not commit--
       ``(1) the Federal crime of which the person was convicted; 
     or
       ``(2) any other offense that a sentencing authority may 
     have relied upon when it sentenced the person with respect to 
     the Federal crime either to death or to an enhanced term of 
     imprisonment as a career offender or armed career criminal.
       ``(b) Notice to Government.--The court shall notify the 
     Government of an application made under subsection (a) and 
     shall afford the Government an opportunity to respond.
       ``(c) Preservation Order.--The court shall order that all 
     evidence secured in relation to the case that could be 
     subjected to DNA testing must be preserved during the 
     pendency of the proceeding. The court may impose appropriate 
     sanctions, including criminal contempt, for the intentional 
     destruction of evidence after such an order.
       ``(d) Order.--
       ``(1) In general.--The court shall order DNA testing 
     pursuant to an application made under subsection (a) upon a 
     determination that--
       ``(A) the evidence is still in existence, and in such a 
     condition that DNA testing may be conducted;
       ``(B) the evidence was never previously subjected to DNA 
     testing, or was not subject to the type of DNA testing that 
     is now requested and that may resolve an issue not resolved 
     by previous testing;
       ``(C) the proposed DNA testing uses a scientifically valid 
     technique; and
       ``(D) the proposed DNA testing has the scientific potential 
     to produce new, noncumulative evidence material to the claim 
     of the applicant that the applicant did not commit--
       ``(i) the Federal crime of which the applicant was 
     convicted; or
       ``(ii) any other offense that a sentencing authority may 
     have relied upon when it sentenced the applicant with respect 
     to the Federal crime either to death or to an enhanced term 
     of imprisonment as a career offender or armed career 
     criminal.
       ``(2) Limitation.--The court shall not order DNA testing 
     under paragraph (1) if the Government proves by a 
     preponderance of the evidence that the application for 
     testing was made to unreasonably delay the execution of 
     sentence or administration of justice, rather than to support 
     a claim described in paragraph (1)(D).
       ``(3) Testing procedures.--If the court orders DNA testing 
     under paragraph (1), the court shall impose reasonable 
     conditions on such testing designed to protect the integrity 
     of the evidence and the testing process and the reliability 
     of the test results.
       ``(e) Cost.--The cost of DNA testing ordered under 
     subsection (c) shall be borne by the Government or the 
     applicant, as the court may order in the interests of 
     justice, except that an applicant shall not be denied testing 
     because of an inability to pay the cost of testing.
       ``(f) Counsel.--The court may at any time appoint counsel 
     for an indigent applicant under this section pursuant to 
     section 3006A(a)(2)(B) of title 18.
       ``(g) Post-Testing Procedures.--
       ``(1) Inconclusive results.--If the results of DNA testing 
     conducted under this section

[[Page S2002]]

     are inconclusive, the court may order such further testing as 
     may be appropriate or dismiss the application.
       ``(2) Results unfavorable to applicant.--If the results of 
     DNA testing conducted under this section inculpate the 
     applicant, the court shall--
       ``(A) dismiss the application;
       ``(B) assess the applicant for the cost of the testing; and
       ``(C) make such further orders as may be appropriate.
       ``(3) Results favorable to applicant.--If the results of 
     DNA testing conducted under this section are favorable to the 
     applicant, the court shall order a hearing and thereafter 
     make such further orders as may be appropriate under 
     applicable rules and statutes regarding post-conviction 
     proceedings, notwithstanding any provision of law that would 
     bar such hearing or orders as untimely.
       ``(h) Rules of Construction.--
       ``(1) Other post-conviction relief unaffected.--Nothing in 
     this section shall be construed to limit the circumstances 
     under which a person may obtain DNA testing or other post-
     conviction relief under any other provision of law.
       ``(2) Finality rule unaffected.--An application under this 
     section shall not be considered a motion under section 2255 
     for purposes of determining whether it or any other motion is 
     a second or successive motion under section 2255.
       ``(i) Definitions.--In this section:
       ``(1) Appropriate Federal court.--The term `appropriate 
     Federal court' means--
       ``(A) the United States District Court which imposed the 
     sentence from which the applicant seeks relief; or
       ``(B) in relation to a crime under the Uniform Code of 
     Military Justice, the United States District Court having 
     jurisdiction over the place where the court martial was 
     convened that imposed the sentence from which the applicant 
     seeks relief, or the United States District Court for the 
     District of Columbia, if no United States District Court has 
     jurisdiction over the place where the court martial was 
     convened.
       ``(2) Federal crime.--The term `Federal crime' includes a 
     crime under the Uniform Code of Military Justice.

     ``Sec. 2292. Preservation of evidence

       ``(a) In General.--Notwithstanding any other provision of 
     law and subject to subsection (b), the Government shall 
     preserve all evidence that was secured in relation to the 
     investigation or prosecution of a Federal crime (as that term 
     is defined in section 2291(i)), and that could be subjected 
     to DNA testing, for not less than the period of time that any 
     person remains subject to incarceration in connection with 
     the investigation or prosecution.
       ``(b) Exceptions.--The Government may dispose of evidence 
     before the expiration of the period of time described in 
     subsection (a) if--
       ``(1) other than subsection (a), no statute, regulation, 
     court order, or other provision of law requires that the 
     evidence be preserved; and
       ``(2)(A)(i) the Government notifies any person who remains 
     incarcerated in connection with the investigation or 
     prosecution and any counsel of record for such person (or, if 
     there is no counsel of record, the public defender for the 
     judicial district in which the conviction for such person was 
     imposed), of the intention of the Government to dispose of 
     the evidence and the provisions of this chapter; and
       ``(ii) the Government affords such person not less than 180 
     days after such notification to make an application under 
     section 2291(a) for DNA testing of the evidence; or
       ``(B)(i) the evidence must be returned to its rightful 
     owner, or is of such a size, bulk, or physical character as 
     to render retention impracticable; and
       ``(ii) the Government takes reasonable measures to remove 
     and preserve portions of the material evidence sufficient to 
     permit future DNA testing.
       ``(c) Remedies for Noncompliance.--
       ``(1) General limitation.--Nothing in this section shall be 
     construed to give rise to a claim for damages against the 
     United States, or any employee of the United States, any 
     court official or officer of the court, or any entity 
     contracting with the United States.
       ``(2) Civil penalty.--
       ``(A) In general.--Notwithstanding paragraph (1), an 
     individual who knowingly violates a provision of this section 
     or a regulation prescribed under this section shall be liable 
     to the United States for a civil penalty in an amount not to 
     exceed $1,000 for the first violation and $5,000 for each 
     subsequent violation, except that the total amount imposed on 
     the individual for all such violations during a calendar year 
     may not exceed $25,000.
       ``(B) Procedures.--The provisions of section 405 of the 
     Controlled Substances Act (21 U.S.C. 844a) (other than 
     subsections (a) through (d) and subsection (j)) shall apply 
     to the imposition of a civil penalty under subparagraph (A) 
     in the same manner as such provisions apply to the imposition 
     of a penalty under section 405.
       ``(C) Prior conviction.--A civil penalty may not be 
     assessed under subparagraph (A) with respect to an act if 
     that act previously resulted in a conviction under chapter 73 
     of title 18.
       ``(3) Regulations.--
       ``(A) In general.--The Attorney General shall promulgate 
     regulations to implement and enforce this section.
       ``(B) Contents.--The regulations shall include the 
     following:
       ``(i) Disciplinary sanctions, including suspension or 
     termination from employment, for employees of the Department 
     of Justice who knowingly or repeatedly violate a provision of 
     this section.
       ``(ii) An administrative procedure through which parties 
     can file formal complaints with the Department of Justice 
     alleging violations of this section.''.
       (b) Criminal Penalty.--Chapter 73 of title 18, United 
     States Code, is amended by inserting at the end the 
     following:

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

       Whoever willfully or maliciously destroys, alters, 
     conceals, or tampers with evidence that is required to be 
     preserved under section 2292 of title 28, United States Code, 
     with intent to--
       (1) impair the integrity of that evidence;
       (2) prevent that evidence from being subjected to DNA 
     testing; or
       (3) prevent the production or use of that evidence in an 
     official proceeding,
     shall be fined under this title or imprisoned not more than 5 
     years, or both.''.
       (c) Technical and Conforming Amendments.--
       (1) The analysis for part VI of title 28, United States 
     Code, is amended by inserting after the item relating to 
     chapter 155 the following:

``156. DNA testing..........................................2291''.....

       (2) The table of contents for Chapter 73 of title 18, 
     United States Code, is amended by inserting after the item 
     relating to section 1518 the following:

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

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

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

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

       (a) Application for DNA Testing.--No State shall deny an 
     application for DNA testing made by a prisoner in State 
     custody who is under sentence of death, if the proposed DNA 
     testing has the scientific potential to produce new, 
     noncumulative evidence material to the claim of the prisoner 
     that the prisoner did not commit--
       (1) the offense for which the prisoner was sentenced to 
     death; or
       (2) any other offense that a sentencing authority may have 
     relied upon when it sentenced the prisoner to death.
       (b) Opportunity To Present Results of DNA Testing.--No 
     State shall rely upon a time limit or procedural default rule 
     to deny a prisoner in State custody who is under sentence of 
     death an opportunity to present in an appropriate State court 
     new, noncumulative DNA results that establish a reasonable 
     probability that the prisoner did not commit an offense 
     described in subsection (a).
       (c) Remedy.--A prisoner in State custody who is under 
     sentence of death may enforce subsections (a) and (b) in a 
     civil action for declaratory or injunctive relief, filed 
     either in a State court of general jurisdiction or in

[[Page S2003]]

     a district court of the United States, naming an executive or 
     judicial officer of the State as defendant.
       (d) Finality Rule Unaffected.--An application under this 
     section shall not be considered an application for a writ of 
     habeas corpus under section 2254 of title 28, United States 
     Code, for purposes of determining whether it or any other 
     application is a second or successive application under 
     section 2254.

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

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

      TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

     SEC. 201. NATIONAL COMMISSION ON CAPITAL REPRESENTATION.

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

     SEC. 202. CAPITAL DEFENSE INCENTIVE GRANTS.

       The State Justice Institute Act of 1984 (42 U.S.C. 10701 et 
     seq.) is amended by inserting after section 207 the 
     following:

     ``SEC. 207A. CAPITAL DEFENSE INCENTIVE GRANTS.

       ``(a) Program Authorized.--The State Justice Institute 
     (referred to in this section as the `Institute') may make 
     grants to State agencies and organizations responsible for 
     the administration of standards of legal competence for 
     counsel in capital cases, for the purposes of--

[[Page S2004]]

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

     SEC. 203. AMENDMENTS TO PRISON GRANT PROGRAMS.

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

     ``SEC. 20110. STANDARDS FOR CAPITAL REPRESENTATION.

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

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

[[Page S2005]]

     SEC. 204. EFFECT ON PROCEDURAL DEFAULT RULES.

       (a) In General.--Section 2254(e) of title 28, United States 
     Code, is amended--
       (1) in paragraph (1), by striking ``In a proceeding'' and 
     inserting ``Except as provided in paragraph (3), in a 
     proceeding''; and
       (2) by adding at the end the following:
       ``(3) In a proceeding instituted by an applicant under 
     sentence of death, the court shall neither presume a finding 
     of fact made by a State court to be correct nor decline to 
     consider a claim on the ground that the applicant failed to 
     raise such claim in State court at the time and in the manner 
     prescribed by State law, if--
       ``(A) the applicant was financially unable to obtain 
     adequate representation at the stage of the State proceedings 
     at which the State court made the finding of fact or the 
     applicant failed to raise the claim, and the applicant did 
     not waive representation by counsel; and
       ``(B) the State did not provide representation to the 
     applicant under a State system for providing representation 
     that satisfied the standards formulated by the National 
     Commission on Capital Representation pursuant to section 
     201(b) of the Innocence Protection Act of 2001.''.
       (b) No Retroactive Effect.--The amendments made by this 
     section shall not apply to any case in which the relevant 
     State court proceeding occurred before the end of the first 
     fiscal year following the formulation of standards by the 
     National Commission on Capital Representation pursuant to 
     section 201(b) of the Innocence Protection Act of 2001.

     SEC. 205. CAPITAL DEFENSE RESOURCE GRANTS.

       Section 3006A of title 18, United States Code, is amended--
       (1) by redesignating subsections (i), (j), and (k) as 
     subsections (j), (k), and (l), respectively; and
       (2) by inserting after subsection (h) the following:
       ``(i) Capital Defense Resource Grants.--
       ``(1) Definitions.--In this subsection--
       ``(A) the term `capital case'--
       ``(i) means any criminal case in which a defendant 
     prosecuted in a State court is subject to a sentence of death 
     or in which a death sentence has been imposed; and
       ``(ii) includes all proceedings filed in connection with 
     the case, including trial, appellate, and Federal and State 
     post-conviction proceedings;
       ``(B) the term `defense services' includes--
       ``(i) recruitment of counsel;
       ``(ii) training of counsel; and
       ``(iii) legal and administrative support and assistance to 
     counsel; and
       ``(C) the term `Director' means the Director of the 
     Administrative Office of the United States Courts.
       ``(2) Grant award and contract authority.--Notwithstanding 
     subsection (g), the Director shall award grants to, or enter 
     into contracts with, public agencies or private nonprofit 
     organizations for the purpose of providing defense services 
     in capital cases.
       ``(3) Purposes.--Grants and contracts awarded under this 
     subsection shall be used in connection with capital cases in 
     the jurisdiction of the grant recipient for 1 or more of the 
     following purposes:
       ``(A) Enhancing the availability, competence, and prompt 
     assignment of counsel.
       ``(B) Encouraging continuity of representation between 
     Federal and State proceedings.
       ``(C) Increasing the efficiency with which such cases are 
     resolved.
       ``(4) Guidelines.--The Director, in consultation with the 
     Judicial Conference of the United States, shall develop 
     guidelines to ensure that defense services provided by 
     recipients of grants and contracts awarded under this 
     subsection are consistent with applicable legal and ethical 
     proscriptions governing the duties of counsel in capital 
     cases.
       ``(5) Consultation.--In awarding grants and contracts under 
     this subsection, the Director shall consult with 
     representatives of the highest State court, the organized 
     bar, and the defense bar of the jurisdiction to be served by 
     the recipient of the grant or contract, and shall ensure 
     coordination with grants administered by the State Justice 
     Institute pursuant to section 207A of the State Justice 
     Institute Act of 1984.''.

                  TITLE III--MISCELLANEOUS PROVISIONS

     SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

       Section 2513(e) of title 28, United States Code, is amended 
     by striking ``$5,000'' and inserting ``$50,000 for each 12-
     month period of incarceration, except that a plaintiff who 
     was unjustly sentenced to death may be awarded not more than 
     $100,000 for each 12-month period of incarceration.''.

     SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.

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

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

       (a) In General.--Chapter 228 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 3599. Certification requirement

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

``3599. Certification requirement.''.

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

       (a) Purpose.--The purpose of this section is to clarify 
     that juries in death penalty prosecutions brought under the 
     drug kingpin statute--like juries in all other Federal death 
     penalty prosecutions--have the option of recommending life 
     imprisonment without possibility of release.
       (b) Clarification.--Section 408(l) of the Controlled 
     Substances Act (21 U.S.C. 848(l)), is amended by striking the 
     first 2 sentences and inserting the following: ``Upon a 
     recommendation under subsection (k) that the defendant should 
     be sentenced to death or life imprisonment without 
     possibility of release, the court shall sentence the 
     defendant accordingly. Otherwise, the court shall impose any 
     lesser sentence that is authorized by law.''.

     SEC. 305. RIGHT TO AN INFORMED JURY.

       Section 20105(b)(1) of the Violent Crime Control and Law 
     Enforcement Act of 1994 (42 U.S.C. 13705(b)(1)), as amended 
     by section 302 of this Act, is amended by--
       (1) striking ``and'' at the end of subparagraph (B);
       (2) striking the period at the end of subparagraph (C) and 
     inserting ``; and''; and
       (3) adding at the end the following:
       ``(D) provide assurances to the Attorney General that in 
     any capital sentencing proceeding occurring after the date of 
     enactment of the Innocence Protection Act of 2001 in which 
     the jury has a role in determining the sentence imposed on 
     the defendant, the court, at the request of the defendant, 
     shall inform the jury of all statutorily authorized 
     sentencing options in the particular case, including 
     applicable parole eligibility rules and terms.''.

     SEC. 306. ANNUAL REPORTS.

       (a) Report.--Not later than 2 years after the date of 
     enactment of this Act, and annually thereafter, the Attorney 
     General shall prepare and transmit to Congress a report 
     concerning the administration of capital punishment laws by 
     the Federal Government and the States.
       (b) Report Elements.--The report required under subsection 
     (a) shall include substantially the same categories of 
     information as are included in the Bureau of Justice 
     Statistics Bulletin entitled ``Capital Punishment 1999'' 
     (December 2000, NCJ 184795), and shall also include the 
     following additional categories of information, if such 
     information can practicably be obtained:
       (1) The percentage of death-eligible cases in which a death 
     sentence is sought, and the percentage in which it is 
     imposed.
       (2) The race of the defendants in death-eligible cases, 
     including death-eligible cases in which a death sentence is 
     not sought, and the race of the victims.
       (3) The percentage of capital cases in which counsel is 
     retained by the defendant, and the percentage in which 
     counsel is appointed by the court.
       (4) The percentage of capital cases in which life without 
     parole is available as an alternative to a death sentence, 
     and the sentences imposed in such cases.
       (5) The percentage of capital cases in which life without 
     parole is not available as an alternative to a death 
     sentence, and the sentences imposed in such cases.
       (6) The frequency with which various statutory aggravating 
     factors are invoked by the prosecution.
       (7) The percentage of cases in which a death sentence or a 
     conviction underlying a death sentence is vacated, reversed, 
     or set aside, and a short statement of the reasons therefore.
       (c) Request for Assistance.--In compiling the information 
     referred to in subsection (b),

[[Page S2006]]

     the Attorney General shall, when necessary, request 
     assistance from State and local prosecutors, defense 
     attorneys, and courts, as appropriate. Requested assistance, 
     whether provided or denied by a State or local official or 
     entity, shall be noted in the reports referred to in 
     subsection (a).
       (d) Public Disclosure.--The Attorney General or the 
     Director of the Bureau of Justice Assistance, as appropriate, 
     shall ensure that the reports referred to in subsection (a) 
     are--
       (1) distributed to national print and broadcast media; and
       (2) posted on an Internet website maintained by the 
     Department of Justice.

     SEC. 307. SENSE OF CONGRESS REGARDING THE EXECUTION OF 
                   JUVENILE OFFENDERS AND THE MENTALLY RETARDED.

       It is the sense of Congress that the death penalty is 
     disproportionate and offends contemporary standards of 
     decency when applied to a person who is mentally retarded or 
     who had not attained the age of 18 years at the time of the 
     offense.
                                  ____


      Innocence Protection Act of 2001--Section-by-Section Summary


                                overview

       The Innocence Protection Act of 2001 is a carefully crafted 
     package of criminal justice reforms aimed at reducing the 
     risk that innocent persons may be executed. Most urgently the 
     bill would afford greater access to DNA testing by convicted 
     offenders; and help States improve the quality of legal 
     representation in capital cases.


         title I--exonerating the innocent through dna testing

       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 inmates in the Federal system. Courts shall 
     order DNA testing if it has the scientific potential to 
     produce new exculpatory evidence material to the inmate's 
     claim of innocence. When the test results are exculpatory, 
     courts shall order a hearing and make such further orders as 
     may be appropriate under existing law. Prohibits the 
     destruction of biological evidence in a criminal case while a 
     defendant remains incarcerated, absent prior notification to 
     such defendant of the government's intent to destroy the 
     evidence.
       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 inmates.
       Sec. 104. Prohibition pursuant to section 5 of the 14th 
     Amendment. Prohibits States from denying applications for DNA 
     testing by death row inmates, if the proposed testing has the 
     scientific potential to produce new exculpatory evidence 
     material to the inmate's claim of innocence. Also prohibits 
     States from denying inmates a meaningful opportunity to prove 
     their innocence using the results of DNA testing. Inmates may 
     sue for declaratory or injunctive relief to enforce these 
     prohibitions.
       Sec. 105. Grants to prosecutors for DNA testing programs. 
     Permits States to use grants under the Edward Byrne Memorial 
     State and Local Law Enforcement Assistance Programs to fund 
     the growing number of prosecutor-initiated programs that 
     review convictions to identify cases in which DNA testing is 
     appropriate and that offer DNA testing to inmates in such 
     cases.


      title ii--ensuring competent legal services in capital cases

       Sec. 201. National Commission on Capital Representation. 
     Establishes a National Commission on Capital Representation 
     to develop standards for providing adequate legal 
     representation for indigents facing a death sentence. The 
     Commission would be composed of nine members and would 
     include experienced prosecutors, defense attorneys, and 
     judges, and would complete its work within on year. Total 
     authorization $1,000,000.
       Sec. 202. Capital defense incentive grants. Establishes a 
     grant program, to be administered by the State Justice 
     Institute, to help States implement the Commission's 
     standards and otherwise improve the quality of representation 
     in capital cases. Authorization is $50,000,000 for the first 
     year, and such sums as may be necessary for the two years 
     that follow.
       Sec. 203. Amendments to prison grant programs. Directs the 
     Attorney General to withhold a portion of the funds awarded 
     under the prison grant programs from death penalty States 
     that have not established or do not maintain a system for 
     providing legal representation in capital cases that 
     satisfies the Commission's standards. The Attorney General 
     may waive the withholding requirement for one year under 
     certain circumstances.
       Sec. 204. Effect on procedural default rules. Provides that 
     certain procedural barriers to Federal habeas corpus review 
     shall not apply if the State did not provide legal 
     representation to the habeas petitioner under a State system 
     for providing representation that satisfied the Commission's 
     standards. This section does not apply in any case in which 
     the relevant State court proceeding occurred more than 1 year 
     before the formulation of such standards.
       Sec. 205. Capital defense resource grants. Amends the 
     Criminal Justice Act, 18 U.S.C. Sec. 3006A, to make more 
     Federal funding available for purposes of enhancing the 
     availability, competence, and prompt assignment of counsel in 
     capital cases, encouraging the continuity of representation 
     in such cases, and increasing the efficiency with which 
     capital cases are resolved.


                  title iii--miscellaneous provisions

       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.
       Sec. 302. Compensation in state death cases. Encourages 
     states to maintain effective procedures for reasonably 
     compensating persons who were unjustly convicted and 
     sentenced to death, and investigating the causes of such 
     unjust convictions in order to prevent such errors from 
     recurring.
       Sec. 303. Certification requirement in federal death 
     penalty prosecutions. Increases accountability by requiring 
     the Attorney General, when seeking the death penalty in any 
     case, to certify that the federal interest in the prosecution 
     is more substantial than the interests of the state or local 
     authorities. Modeled on the certification requirements in the 
     federal civil rights and juvenile delinquency laws, this 
     section codifies existing practice as reflected in section 9-
     10.070 of the U.S. Attorney's Manual. This section does not 
     create any rights enforceable at law by any party in any 
     matter civil or criminal.
       Sec. 304. Alternative of life imprisonment without 
     possibility of release. Clarifies that juries in death 
     penalty prosecutions brought under the drug kingpin statute, 
     21 U.S.C. Sec. 848(l), have the option of recommending life 
     imprisonment without possibility of release. This amendment 
     incorporates into the drug kingpin statute a procedural 
     protection that federal law already expressly provides to the 
     vast majority of capital defendants.
       Sec. 305. Right to an informed jury. Encourages states to 
     allow defendants in capital cases to have the jury instructed 
     on all statutorily-authorized sentencing options, including 
     applicable parole eligibility rules and terms.
       Sec. 306. 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. 307. 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.

  Mr. SMITH of Oregon. Mr. President, I am proud to be a co-sponsor of 
this new and improved Innocence Protection Act. The Innocence 
Protection Act we introduced last year was widely heralded as providing 
much-needed improvements to our nation's already strong judicial 
system. This year, the bill itself has been strengthened, so it can 
better benefit the truly innocent without imposing undue hardship on 
our hard-working law enforcement personnel. While our court and law 
enforcement officials work extremely hard to ensure justice for all, 
occasionally mistakes are made.
  To prevent these rare instances, The Innocence Protection Act 
encourages appropriate use of DNA testing, and provision of competent 
counsel. The bill also provides for adequate compensation in the rare 
case that a person is wrongfully imprisoned, and encourages states to 
examine these situations to prevent their recurrence. The Innocence 
Protection Act proposes to apply technological advances of the 21st 
century evenly across the country to ensure that justice is served 
swiftly and fairly, regardless of where you live.
  Both supporters and opponents of the death penalty can support this 
bill, which will only improve the integrity of our Criminal Justice 
System. By helping ensure that the true perpetrators of heinous crimes 
are behind bars, the innocent can live in a safer world. I am a 
supporter of the death penalty. I believe that 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 am reintroducing the 
Innocence Protection Act of 2001 with Senator Leahy and others today.
  Clearly, there is a growing interest in this issue in Congress. I 
feel strongly that this is a bill whose time has come, and I look 
forward to working with my colleagues in the House and Senate to ensure 
its passage this session.
                                 ______