[Congressional Record Volume 148, Number 97 (Wednesday, July 17, 2002)]
[Senate]
[Pages S6950-S6951]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. DeWine, Mr. Lott, Mr. Domenici, 
        Mr. Bunning, Mr. Grassley, Mr. Kyl, Mr. McConnell, Mr. 
        Sessions, Mr. Santorum, Mr. Hutchinson, Mr. Thurmond, and Mr. 
        Helms):
  S. 2739. A bill to provide for post-conviction DNA testing, to 
improve competence and performance of prosecutors, defense counsel, and 
trial judges handling State capital criminal cases, to ensure the 
quality of defense counsel in Federal capital cases, and for other 
purposes; to the Committee on the Judiciary
  Mr. HATCH. Mr. President, the issue of the death penalty in our 
country continues to spark significant debate. The recent Supreme Court 
decisions addressing capital punishment underscore the importance of 
this issue to the American people. It is an issue that engenders great 
passion, both among its supporters and among its opponents. The 
American people believe in the death penalty, especially for terrorists 
who have killed thousands of Americans. And all of us agree that the 
death penalty must be imposed fairly and accurately.
  I have stated on numerous occasions my views on the death penalty. It 
is the ultimate punishment and it should be reserved only for those 
defendants who commit the most heinous of crimes. I am firmly convinced 
that we must be vigilant in ensuring that capital punishment is meted 
out fairly against those truly guilty criminals. We cannot and should 
not tolerate defects in the capital punishment system. No one can 
disagree with this ultimate and solemn responsibility.
  In the last decade, DNA testing has evolved as the most reliable 
forensic technique for identifying criminals when biological evidence 
is recovered. While DNA testing is now standard in pre-trial 
investigations today, the issue of post-conviction DNA testing has 
emerged in recent years as the technology for such testing has 
improved. The integrity of our criminal justice system and in 
particular, our death penalty system, can be enhanced with the 
appropriate use of DNA testing. No one disagrees with the fact that 
post-conviction DNA testing should be made available to defendants when 
it serves the ends of justice.
  In addition to post-conviction DNA testing, every defendant in our 
criminal justice system is afforded the guarantee by the 6th Amendment 
of our Constitution of competent and effective counsel. The Supreme 
Court has enforced this right in numerous decisions in order to ensure 
that all defendants are afforded the constitutional protections 
guaranteed to them.
  Death penalty opponents argue that the system is broken and blame 
ineffective assistance of counsel. Their own evidence, however, 
indicates that the system is not broken. To the contrary, a recent 
Justice Department study concluded that ``[i]n both Federal and large 
State courts, conviction rates were the same for defendants represented 
by publicly financed and private attorneys.'' (Caroline Wolf Harlow, 
Defense Counsel in Criminal Cases, Bureau of Justice Statistics, 
November 2000). Further, 34 out of 38 States with capital punishment 
have adopted standards or have existing practices to ensure assignment 
of competent counsel. In my view, the appellate system and our habeas 
system, which was reformed in 1996, remain robust and entirely capable 
of identifying and rectifying instances of deficient representation or 
substantial error at the trial level.
  We have all heard the horror stories of the attorney who fell asleep 
during

[[Page S6951]]

his client's trial and the attorney who showed up for trial 
intoxicated. Some opponents of the death penalty seek to portray these 
stories as ``par for the course.'' This view ignores the hundreds of 
capital cases in which no flaw was found in the quality of legal 
representation. It also ignores the hundreds of capital cases in which 
defendants were either acquitted, or sentenced to a penalty less than 
death, many times the result of outstanding representation by defense 
counsel. The truth is that in many cases prosecutors handling a capital 
case are out-manned and outgunned by defense teams funded by a 
combination of public and private sources.
  The legislation I introduce today will ensure the integrity of our 
death penalty system. The Act addresses post-conviction DNA testing for 
defendants, provides grants to States to fund state post-conviction DNA 
testing programs, and creates new grant programs to train State 
prosecutors, defense counsel and judges to ensure that defendants 
receive a fair capital trial.
  First, the Act authorizes post-conviction DNA testing where a federal 
defendant can show that the DNA test will establish his or her ``actual 
innocence.'' There has been considerable debate about when a convicted 
defendant should be entitled to post-conviction DNA testing. Under my 
proposal, when a defendant demonstrates that a favorable result would 
show that he or she is actually innocent of the crime, the defendant 
will be given access to DNA testing. Thus, DNA testing will not be 
permitted where such a test would only muddy the waters and be used by 
the defendant to fuel a new and frivolous series of appeals. When a DNA 
test shows that the defendant is actually innocent, then the Act 
authorizes the defendant to file a motion for a new trial. Under the 
Act, DNA testing in capital cases will be prioritized and conducted on 
a ``fast track,'' so that these important cases are handled quickly.
  Second, in order to discourage a flood of baseless claims, the Act 
authorizes the prosecution of defendants who make false claims of 
innocence in support of a DNA testing request. Each defendant will be 
required to assert under penalty of perjury that they are, in fact, 
innocent of the crime. When DNA testing reveals that the defendant's 
claim of innocence was actually false, the defendant can then be 
prosecuted for perjury, contempt or false statements. Further, the Act 
allows DNA test results to be entered into the CODIS database and 
compared against unsolved crimes. If the test result shows that the 
defendant committed another crime, the defendant may then be prosecuted 
for the other crime.
  Third, with respect to State defendants, the Act encourages States to 
create similar DNA testing procedures, and provides funding assistance 
to those States that implement DNA testing programs. Twenty-five of 38 
States which have capital punishment already have enacted post-
conviction DNA testing programs, and 6 States have pending legislation 
to create such a program. With the new source of funding, more States 
will enact DNA testing programs, and will provide such testing on an 
expedited basis.
  Fourth, in order to improve the fairness and accuracy of state 
capital trials, the Act creates grant programs to train defense 
counsel, prosecutors and trial judges to ensure fair capital trials. 
While I do not believe that the system is broken, I do believe that our 
justice system can always be improved. The grants proposed under the 
Act will enable States to send prosecutors, defense counsel and trial 
judges to training programs to ensure that capital cases are handled 
more efficiently and effectively, and that every capital defendant will 
receive a fair trial under our justice system.
  Starting in 2001 and continuing through this year, the Judiciary 
Committee, has conducted a number of hearings to examine these 
difficult issues relating to the death penalty system in our country. A 
competing proposal, S. 486, is now pending before the Committee. The 
alternative proposal would open the floodgates to frivolous litigation 
by allowing convicted Federal and State defendants to obtain post-
conviction DNA testing even when they have never previously claimed 
they were innocent of the crime. Second, the alternative proposal 
tramples on the concept of federalism by stretching the 14th Amendment 
to mandate DNA testing and evidence preservation requirements on the 
States. Third, the alternative proposal would strip state courts of 
their traditional power to appoint counsel to represent indigent 
defendants; require states to comply with federally-mandated 
requirements for assignment of competent counsel; and fund new private 
capital resource litigation centers. Fourth, the alternative bill 
threatens to reduce valuable Byrne grants to State law enforcement 
agencies which are needed to fight crime in our local communities. 
Finally, the alternative bill would authorize a flood of private suits 
to enforce a set of new federal mandates on each of the states.
  My bill will further our nation's commitment to justice, ensure that 
our country has a fair death penalty system, and protect the 
sovereignty of states from burdensome and unnecessary federal 
assertions of power.
  I strongly urge my colleagues to join with me in promptly passing 
this important legislation. I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows
  [Data not available at time of printing.]
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