[Congressional Record Volume 149, Number 159 (Wednesday, November 5, 2003)]
[Senate]
[Pages S14044-S14051]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mr. Chambliss, Mr. Craig, Mr. Nickles, 
        Mr. Sessions, and Mr. Cornyn):
  S. 1828. A bill to eliminate the substantial backlog of DNA samples 
collected from crime scenes and convicted offenders, to improve and 
expand the DNA testing capacity of Federal, State, and local crime 
laboratories, to increase research and development of new DNA testing 
technologies, to develop new training programs regarding the collection 
and use of DNA evidence, and for other purposes; to the Committee on 
the Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce the ``Advancing 
Justice Through DNA Technology Act of 2003.'' This bill consists of the 
President's DNA initiative, which will expand and improve DNA databases 
used for criminal investigations and authorize additional funds to 
clear the backlog of untested DNA evidence in the nation's crime labs.
  This bill offers several advantages over another version of the 
President's proposal that recently was introduced in the Senate. 
Today's bill gives States greater leeway in the use of DNA grants, 
removes arbitrary and unnecessary restrictions on the testing of 
criminal suspects' DNA samples, authorizes additional funds to clear 
the backlog of non-DNA forensics evidence, and--most importantly avoids 
tying this critical program to unrelated and highly controversial anti-
death penalty legislation. I include in the record at the end of this 
statement a news story that describes the nature of the state counsel 
and other extraneous provisions that others have sought to attach to 
the President's proposal.
  The bill that I introduce today is an unencumbered--and unabridged--
version of the President's DNA initiative: the DNA Sexual Assault 
Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act, 
which authorize the Debbie Smith DNA Backlog Grant Program and provide 
$755 million over five years to address the DNA backlog crisis in the 
nation's crime labs.
  Today's bill includes the following improvements over other 
congressional versions of the President's proposal: First, this bill 
also expands funding for non-DNA forensics funding. Section 211 of the 
bill authorizes $100 million in new grant programs to eliminate ``the 
backlog in the analysis of any area of forensic science evidence, 
including firearms examination, latent prints, toxicology, controlled 
substances, forensic pathology, questionable documents, and trace 
evidence.''
  Second, this bill increases the authorization for the Paul Coverdell 
grant program, in recognition of the fact that this program never has 
been funded at more than a small fraction of its authorization. Other 
congressional versions of the President's DNA initiative only authorize 
decreasing Coverdell funding in the coming years. This bill resets the 
clock on the Coverdell program, authorizing 2004 funding at the level 
for 2001, and subsequent years accordingly. This will allow sharp 
increases in Coverdell funding in the coming years.

[[Page S14045]]

  Third, today's bill allows states to test DNA samples from convicts 
seeking exoneration against the national DNA database, in order to 
determine if the convict has committed other rapes or murders. The 
other congressional versions of the President's DNA initiative would 
bar such testing; they effectively would give convicts a free roll of 
the dice to challenge their current convictions while protecting them 
against the risk that they will be linked to other crimes. There is no 
reason why states should be prevented from solving such other crimes. 
If DNA evidence is good enough to test a prisoner's conviction for the 
crimes that we do know that he committed, it also is good enough to 
establish the prisoner's involvement in crimes that we do not yet know 
that he committed.
  Fourth, this bill includes all Federal felony arrestees in the 
federal DNA database. Other versions of this bill exclude arrestees and 
place other unnecessary and arbitrary limits on the federal DNA index. 
The federal government already maintains fingerprints for all federal 
felony arrestees--there is no reason to treat DNA evidence differently. 
Nor is there any reason to prevent states and the federal government 
from solving other crimes committed by suspects arrested for a federal 
felony offense.
  The Department of Justice has expressly informed Congress of the 
benefits of casting a wide net when including criminal suspects in the 
federal DNA database. During a July 17 hearing on the President's DNA 
initiative before the Crime Subcommittee of the House Judiciary 
Committee, Sarah Hart, the Director of the National Institute of 
Justice, testified that:

       The efficacy of the DNA identification system depends 
     entirely on the profiles entered into it. Experience 
     demonstrates that broad collection and indexing of DNA 
     samples is critical to the effective use of the DNA 
     technology to solve rapes, murders, and other serious crimes.
       The DNA sample that enables law enforcement to identify the 
     perpetrator of a rape, for example, often was not collected 
     in connection with an earlier rape. Rather, in a large 
     proportion of such cases, the sample was taken as a result of 
     the perpetrator's prior conviction for a non-violent crime 
     (such as a burglary, theft, or drug offense).
       For example, in Virginia, which has authorized the 
     collection of DNA samples from all felons since 1991, a 
     review of cases in which offenders were linked to sex crimes 
     through DNA matching found that almost 40% of the offenders 
     had no prior convictions for sexual or violent offenses. Most 
     serious offenders do not confine themselves to violent 
     crimes. The experience of States with broad DNA collection 
     regimes demonstrates that DNA databases that include all 
     felons dramatically increase law enforcement's ability to 
     solve serious crimes.

  Fifth, today's bill tolls the statute of limitations when a 
perpetrator has been identified through DNA--including in rape cases. 
Other congressional versions of the President's initiative inexplicably 
exclude sexual-assault crimes from the initiative's DNA tolling 
provision. There is no reason to do so. Indeed, it is in sexual-assault 
cases that DNA evidence is most likely to identify a perpetrator. At 
the July 17 hearing before the House Judiciary Committee's Crime 
Subcommittee, the Department of Justice testified in favor of tolling 
the statute of limitations to the full extent permitted by the 
Constitution.
  Sixth, this bill allows grants for DNA training and research to be 
made to prosecutors' organizations, universities, and other private 
entities. Competing bill versions limit such grants to state and local 
governments, which is inconsistent with the President's DNA initiative.
  Finally, the bill that I introduce today does not include the so-
called ``Innocence Protection Act'' (IPA), a controversial anti-death 
penalty bill. The other congressional versions of the President's 
initiative have incorporated the IPA as a third title to the 
President's bill. At the July 17 hearing on the President's initiative, 
the Department of Justice made very clear that it ``do[es] not believe 
that legislation embodying the important proposals in the President's 
DNA initiative should be joined to these controversial [IPA] measures, 
which intrinsically are unrelated to DNA.''
  In an October 27 letter to several members of Congress, the National 
District Attorneys Association also voiced strong objections to the 
capital-counsel provisions included in the IPA titles of the other 
bills. The NDAA's letter stated:

       Section 321 [of these bills] attempts to re-establish the 
     old 'death penalty resource centers.' As you no doubt recall, 
     Congress abolished funding for such centers because they 
     devolved into organizations dedicated solely to the abolition 
     of the death penalty and were staffed and controlled by those 
     dedicated to the disruption of the criminal justice system by 
     whatever means available, ethical or otherwise. Section 321 
     would cause a return to such tactics by removing the ability 
     for the state judiciary to appoint counsel in death penalty 
     cases and giving that authority to a self-appointed group of 
     anti-death penalty attorneys.
       . . . NDAA strongly urges deletion of Section 321 from this 
     bill . . . .
       Elimination of Section 321 . . . keeps the appointment and 
     control of capital defense counsel in the hands of state 
     court judges who are responsible for insuring that defendants 
     receive quality representation. With Section 321 there is no 
     oversight of those individuals selected to develop state 
     standards for capital defense counsel.

  The IPA titles included in the other congressional versions of the 
President's DNA initiative would authorize $500 million in Federal 
funding for State public defenders in State capital cases. There is no 
reason for Congress to finance the States' public-defender systems. The 
States adequately fund these programs themselves--indeed, many have 
enacted reforms and substantially increased funding for public 
defenders in recent years. When the IPA originally was introduced in 
2000, it was targeted at the State of Texas. In 2001, the Texas 
legislature enacted reforms that completely overhauled the State's 
public-defender system. Yet the IPA provisions of the other Senate bill 
would declare Texas's reforms ``ineffective,'' and would force the 
State to again replace its indigent-defense system. Such a mandate 
makes no sense.
  Moreover, there is no reason why States cannot or should not fund 
their own indigent-defender systems. Basic principles of federalism 
dictate that each level of government should finance its own 
operations. Once States become accustomed to and budget for Federal 
funds, they never are able to reject the money (or its conditions) in 
the future. And Federal funding inevitably comes with increasing 
Federal strings. In the long run, the States risk losing control over 
their own public-defender programs. There is no reason to start down 
this path.
  The IPA proposals in the other congressional versions of the 
President's initiative begin by placing a number of conditions on the 
states' receipt of federal funds. Among these conditions is that states 
transfer control over capital defense to an ``entity'' composed of 
persons with ``demonstrated knowledge and expertise in capital 
representation.'' (This means private defense lawyers; public 
prosecutors likely would be barred by their jobs from serving or would 
be conflicted out.) This new ``entity'' would be charged with: (1) 
setting standards for capital-defense counsel; (2) deciding which 
lawyers meet those standards; and (3) appointing lawyers from the 
roster of qualifying attorneys to represent defendants in particular 
cases.
  Essentially, the bill's new ``entity'' would completely control 
staffing of the defense in capital cases. From past experience with the 
``capital resource centers,'' which were defunded by Congress in 1996, 
we know that hard-core death penalty opponents tend to gravitate toward 
these jobs, and will engage in litigation abuse when not supervised. 
Congress should not require the states to repeat its own past mistakes. 
It should not place anti-death penalty partisans in charge of public 
representation of capital defendants.
  The other congressional versions of the President's proposal also 
include these additional highly problematic provisions:
  They allow free DNA testing under very low standards. The competing 
bills provide that DNA tests shall be available to any prisoners if a 
negative test match would ``raise a reasonable probability that the 
applicant did not commit the offense.'' This standard is too low. Not 
all DNA evidence clearly came from the perpetrator of the crime or had 
anything to do with the crime--for example, a blood spot near the crime 
scene may or may not have come from the perpetrator. The ``reasonable 
probability'' standard means a prisoner could secure a test even if, 
despite a negative match, the other evidence would still show that the 
prisoner more likely than not committed the crime.

[[Page S14046]]

The bill requires only a chance that the prisoner did not commit the 
crime. Almost every prisoner with material to test will be able to meet 
this standard. Reopening old cases forces victims and their families to 
relive the ordeal of the crime. They should not be put through this 
unless a negative test result could at least show more likely than not 
that the prisoner did not commit the crime.
  During the July 17 hearing before the House Crime Subcommittee, NIJ 
Director Sarah Hart expressly warned congress of the consequences of 
applying unduly low DNA testing standards. Director Hart testified:

       [W]hile post-conviction DNA testing is necessary to correct 
     erroneous convictions imposed prior to the ready availability 
     of DNA technology, experience also points to the need to 
     ensure that postconviction DNA testing is appropriately 
     designed so as to benefit actually innocent persons, rather 
     than actually guilty criminals who wish to game the system or 
     retaliate against the victims of their crimes. Frequently, 
     the results of postconviction DNA testing sought by prisoners 
     confirm guilt, rather than establishing innocence. In such 
     cases, justice system resources are squandered and the system 
     has been misused to inflict further harm on the crime victim. 
     The recent experience of a local jurisdiction is instructive:
       ``Twice last month, DNA tests at the police crime lab in 
     St. Louis confirmed the guilt of convicted rapists. Two other 
     tests, last year and in 2001, also showed the right men were 
     behind bars for brutal rapes committed a decade or more 
     earlier.
       `` [The St. Louis circuit attorney's] staff spent scores of 
     hours and thousands of dollars on those tests. She personally 
     counseled shaking, sobbing victims who were distraught to 
     learn that their traumas were being aired again.
       `` One victim, she said, became suicidal and then vanished; 
     her family has not heard from her for months. Another, a deaf 
     elderly woman, grew so despondent that her son has not been 
     able to tell her the results of the DNA tests. Every time he 
     raises the issue, she squeezes her eyes shut so that she will 
     not be able to read his lips.
       `` `She finally seemed to have some peace about the rape, 
     and now she's gone back to being angry,' the woman's son 
     said.
       `` DNA tests confirmed that she was raped by Kenneth 
     Charron in 1985, when she was 59. To get that confirmation, 
     however, investigators had to collect a swab of saliva from 
     her so that they could analyze her DNA. They also had to 
     inquire about her sexual past, so they could be sure the 
     semen found in her home was not that of a consensual partner.
       `` The questioning sent the woman into such depression that 
     she's now on medication. `None of this needed to happen,' her 
     son said. ''

  Post-conviction DNA testing is not without its costs. It should be 
allowed only in carefully measured circumstances.
  Another problematic provision in the other congressional versions of 
the President's DNA initiative would employ an unduly low standard to 
authorize new trials for very old cases. This provision of these bills 
is designed to allow new trials for prisoners who may have been 
convicted 20 or more years ago. But it is very often impossible to 
retry a case this old--key witnesses die or disappear or their memories 
simply fade, and other evidence deteriorates or is lost. For many such 
cases, ordering a new trial effectively means that the prisoner walks 
free.
  Congress should make sure that there is compelling evidence of 
innocence before ordering new trials in old cases. Unfortunately, these 
other bills would allow a new trial if test results simply ``establish 
by a preponderance of the evidence that a new trial would result in an 
acquittal.'' The key language here is ``result in acquittal.'' It means 
a test result would not even have to indicate actual innocence; it need 
only conflict with other evidence of guilt so as to undermine the 
jury's ability to convict beyond a reasonable doubt. Prisoners could 
win new trials--and go free--even if, despite the negative DNA match, 
other evidence still shows the prisoner very likely committed the 
crime. Current law, Federal Rule 33, uses the liberal ``result in 
acquittal'' standard to allow new trials based on new evidence, but 
only within three years of trial. It usually is not difficult to retry 
a case within three years. But for older cases, Congress should insist 
on a showing of actual innocence before ordering an often-impossible 
new trial.
  There are other problems with the IPA titles in the various 
congressional versions of the President's DNA initiative. These titles 
would vastly expand DNA testing by authorizing tests even for prisoners 
who pleaded guilty. According to the Department of Justice, 90 percent 
of Federal prisoners pleaded guilty. Extending free tests to these 
prisoners literally expands the pool of potential test seekers by an 
order of magnitude. A guilty plea also means that there is no trial 
record, which makes it much more difficult to assess the potential 
relevance of DNA-test evidence.
  These other bills also impose broad and potentially costly new 
evidence-retention requirements on the States--requirements that appear 
to require States to preserve all potential DNA evidence in all cases, 
indefinitely. And these bills also would give the newly created 
capital-counsel ``entities'' an unwarranted degree of control over 
defense attorneys' budgets. States traditionally have charged courts 
and other responsible agencies with monitoring budgets for capital 
representation. Prosecutors do not have unlimited budgets. There is no 
reason to allow the capital-counsel entity to draw a blank check on 
State treasuries.
  There are other problems with the IPA titles of the competing bills. 
Suffice it to say that these titles are unrelated to the President's 
DNA initiative and both the Department of Justice and the NDAA oppose 
adding them to the President's bill. We should not weigh down the 
President's DNA initiative with the IPA. For this reason, my colleagues 
and I today introduce the President's proposal--important, consensus 
legislation that should be enacted by Congress without delay.
  Mr. President, I ask unanimous consent that the text of the bill, the 
following letter, and the following article all be printed in the 
Record.
  There being no objection, the additional material was ordered to be 
printed in the Record, as follows:

                                S. 1828

       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 ``Advancing 
     Justice Through DNA Technology Act of 2003''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

  TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003

Sec. 101. Short title.
Sec. 102. Debbie Smith DNA Backlog Grant Program.
Sec. 103. Expansion of Combined DNA Index System.
Sec. 104. Tolling of statute of limitations.
Sec. 105. Legal assistance for victims of violence.
Sec. 106. Ensuring private laboratory assistance in eliminating DNA 
              backlog.

            TITLE II--DNA SEXUAL ASSAULT JUSTICE ACT OF 2003

Sec. 201. Short title.
Sec. 202. Ensuring public crime laboratory compliance with Federal 
              standards.
Sec. 203. DNA training and education for law enforcement, correctional 
              personnel, and court officers.
Sec. 204. Sexual assault forensic exam program grants.
Sec. 205. DNA research and development.
Sec. 206. FBI DNA programs.
Sec. 207. DNA identification of missing persons.
Sec. 208. Enhanced criminal penalties for unauthorized disclosure or 
              use of DNA information.
Sec. 209. Tribal coalition grants.
Sec. 210. Expansion of Paul Coverdell Forensic Science Improvement 
              Grant Program.
Sec. 211. Creation of new Forensic Backlog Elimination Grant Program.
Sec. 212. Report to Congress.

  TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``Rape Kits and DNA Evidence 
     Backlog Elimination Act of 2003''.

     SEC. 102. DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.

       (a) Designation of Program; Eligibility of Local 
     Governments as Grantees.--Section 2 of the DNA Analysis 
     Backlog Elimination Act of 2000 (42 U.S.C. 14135) is 
     amended--
       (1) by amending the heading to read as follows:

     ``SEC. 2. THE DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.'';

       (2) in subsection (a)--
       (A) in the matter preceding paragraph (1)--
       (i) by inserting ``or units of local government'' after 
     ``eligible States''; and
       (ii) by inserting ``or unit of local government'' after 
     ``State'';
       (B) in paragraph (2), by inserting before the period at the 
     end the following: ``, including samples from rape kits, 
     samples from other sexual assault evidence, and samples taken 
     in cases without an identified suspect''; and

[[Page S14047]]

       (C) in paragraph (3), by striking ``within the State'';
       (3) in subsection (b)--
       (A) in the matter preceding paragraph (1)--
       (i) by inserting ``or unit of local government'' after 
     ``State'' both places that term appears; and
       (ii) by inserting ``, as required by the Attorney General'' 
     after ``application shall'';
       (B) in paragraph (1), by inserting ``or unit of local 
     government'' after ``State'';
       (C) in paragraph (3), by inserting ``or unit of local 
     government'' after ``State'' the first place that term 
     appears;
       (D) in paragraph (4)--
       (i) by inserting ``or unit of local government'' after 
     ``State''; and
       (ii) by striking ``and'' at the end;
       (E) in paragraph (5)--
       (i) by inserting ``or unit of local government'' after 
     ``State''; and
       (ii) by striking the period at the end and inserting a 
     semicolon; and
       (F) by adding at the end the following:
       ``(6) if submitted by a unit of local government, certify 
     that the unit of local government has taken, or is taking, 
     all necessary steps to ensure that it is eligible to include, 
     directly or through a State law enforcement agency, all 
     analyses of samples for which it has requested funding in the 
     Combined DNA Index System; and'';
       (4) in subsection (d)--
       (A) in paragraph (1)--
       (i) in the matter preceding subparagraph (A), by striking 
     ``The plan'' and inserting ``A plan pursuant to subsection 
     (b)(1)'';
       (ii) in subparagraph (A), by striking ``within the State''; 
     and
       (iii) in subparagraph (B), by striking ``within the 
     State''; and
       (B) in paragraph (2)(A), by inserting ``and units of local 
     government'' after ``States'';
       (5) in subsection (e)--
       (A) in paragraph (1), by inserting ``or local government'' 
     after ``State'' both places that term appears; and
       (B) in paragraph (2), by inserting ``or unit of local 
     government'' after ``State'';
       (6) in subsection (f), in the matter preceding paragraph 
     (1), by inserting ``or unit of local government'' after 
     ``State'';
       (7) in subsection (g)--
       (A) in paragraph (1), by inserting ``or unit of local 
     government'' after ``State''; and
       (B) in paragraph (2), by inserting ``or units of local 
     government'' after ``States''; and
       (8) in subsection (h), by inserting ``or unit of local 
     government'' after ``State'' both places that term appears.
       (b) Reauthorization and Expansion of Program.--Section 2 of 
     the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 
     14135) is amended--
       (1) in subsection (a)--
       (A) in paragraph (3), by inserting ``(1) or'' before 
     ``(2)''; and
       (B) by inserting at the end the following:
       ``(4) To collect DNA samples specified in paragraph (1).
       ``(5) To ensure that DNA testing and analysis of samples 
     from crimes, including sexual assault and other serious 
     violent crimes, are carried out in a timely manner.'';
       (2) in subsection (b), as amended by this section, by 
     inserting at the end the following:
       ``(7) specify that portion of grant amounts that the State 
     or unit of local government shall use for the purpose 
     specified in subsection (a)(4).'';
       (3) by amending subsection (c) to read as follows:
       ``(c) Formula for Distribution of Grants.--
       ``(1) In general.--The Attorney General shall distribute 
     grant amounts, and establish appropriate grant conditions 
     under this section, in conformity with a formula or formulas 
     that are designed to effectuate a distribution of funds among 
     eligible States and units of local government that--
       ``(A) maximizes the effective utilization of DNA technology 
     to solve crimes and protect public safety; and
       ``(B) allocates grants among eligible entities fairly and 
     efficiently to address areas where significant backlogs 
     exist, by considering--
       ``(i) the number of offender and casework samples awaiting 
     DNA analysis in a jurisdiction;
       ``(ii) the population in the jurisdiction; and
       ``(iii) the number of part I violent crimes in the 
     jurisdiction.
       ``(2) Minimum amount.--The Attorney General shall allocate 
     to each State not less than 0.50 percent of the total amount 
     appropriated in a fiscal year for grants under this section, 
     except that the United States Virgin Islands, American Samoa, 
     Guam, and the Northern Mariana Islands shall each be 
     allocated 0.125 percent of the total appropriation.
       ``(3) Limitation.--Grant amounts distributed under 
     paragraph (1) shall be awarded to conduct DNA analyses of 
     samples from casework or from victims of crime under 
     subsection (a)(2) in accordance with the following 
     limitations:
       ``(A) For fiscal year 2004, not less than 50 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(B) For fiscal year 2005 not less than 50 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(C) For fiscal year 2006, not less than 45 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(D) For fiscal year 2007, not less than 40 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(E) For fiscal year 2008, not less than 40 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).'';
       (4) in subsection (g)--
       (A) in paragraph (1), by striking ``and'' at the end;
       (B) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(3) a description of the priorities and plan for awarding 
     grants among eligible States and units of local government, 
     and how such plan will ensure the effective use of DNA 
     technology to solve crimes and protect public safety.'';
       (5) in subsection (j), by striking paragraphs (1) and (2) 
     and inserting the following:
       ``(1) $151,000,000 for fiscal year 2004;
       ``(2) $151,000,000 for fiscal year 2005;
       ``(3) $151,000,000 for fiscal year 2006;
       ``(4) $151,000,000 for fiscal year 2007; and
       ``(5) $151,000,000 for fiscal year 2008.''; and
       (6) by adding at the end the following:
       ``(k) Use of Funds for Accreditation and Audits.--The 
     Attorney General may distribute not more than 1 percent of 
     the grant amounts under subsection (j)--
       ``(1) to States or units of local government to defray the 
     costs incurred by laboratories operated by each such State or 
     unit of local government in preparing for accreditation or 
     reaccreditation;
       ``(2) in the form of additional grants to States, units of 
     local government, or nonprofit professional organizations of 
     persons actively involved in forensic science and nationally 
     recognized within the forensic science community--
       ``(A) to defray the costs of external audits of 
     laboratories operated by such State or unit of local 
     government, which are participating in the National DNA Index 
     System in order to ensure compliance with quality assurance 
     standards;
       ``(B) to assess compliance with any plans submitted to the 
     National Institute of Justice, which detail the use of funds 
     received by States or units of local government under this 
     Act; and
       ``(C) to support future capacity building efforts; and
       ``(3) in the form of additional grants to nonprofit 
     professional associations actively involved in forensic 
     science and nationally recognized within the forensic science 
     community to defray the costs of training persons who conduct 
     external audits of laboratories operated by States and units 
     of local government and which participate in the National DNA 
     Index System.
       ``(l) External Audits and Remedial Efforts.--In the event 
     that a laboratory operated by a State or unit of local 
     government which has received funds under this Act, has 
     undergone an external audit conducted in order to demonstrate 
     compliance with standards established by the Director of the 
     Federal Bureau of Investigation, and, as a result of such 
     audit, identifies measures to remedy deficiencies with 
     respect to the compliance by the laboratory with such 
     standards, the State or unit of local government shall 
     implement any such remediation as soon as practicable.''.

     SEC. 103. EXPANSION OF COMBINED DNA INDEX SYSTEM.

       (a) Inclusion of All DNA Samples From States.--Section 
     210304 of the DNA Identification Act of 1994 (42 U.S.C. 
     14132) is amended--
       (1) in subsection (a)(1), by striking ``of persons 
     convicted of crimes;'' and inserting the following: ``of--
       ``(A) persons convicted of crimes; and
       ``(B) other persons whose DNA samples are collected under 
     applicable legal authorities;''; and
       (2) by striking subsection (d).
       (b) Felons Convicted of Federal Crimes.--Section 3(d) of 
     the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 
     14135a(d)) is amended to read as follows:
       ``(d) Qualifying Federal Offenses.--The offenses that shall 
     be treated for purposes of this section as qualifying Federal 
     offenses are the following offenses, as determined by the 
     Attorney General:
       ``(1) Any felony.
       ``(2) Any offense under chapter 109A of title 18, United 
     States Code.
       ``(3) Any crime of violence (as that term is defined in 
     section 16 of title 18, United States Code).
       ``(4) Any attempt or conspiracy to commit any of the 
     offenses in paragraphs (1) through (3).''.
       (c) Military Offenses.--Section 1565 of title 10, United 
     States Code, is amended--
       (1) by amending subsection (d) to read as follows:
       ``(d) Qualifying Military Offenses.--The offenses that 
     shall be treated for purposes of this section as qualifying 
     military offenses are the following offenses, as determined 
     by the Secretary of Defense, in consultation with the 
     Attorney General:
       ``(1) Any offense under the Uniform Code of Military 
     Justice for which a sentence of confinement for more than one 
     year may be imposed.
       ``(2) Any other offense under the Uniform Code of Military 
     Justice that is comparable to a qualifying Federal offense 
     (as determined under section 3(d) of the DNA Analysis Backlog 
     Elimination Act of 2000 (42 U.S.C. 14135a(d)).'';
       (2) by striking subsection (e); and
       (3) by redesignating subsection (f) as subsection (e).
       (d) Collection of DNA Identification Information From 
     Persons Arrested For Qualifying Federal Offenses.--

[[Page S14048]]

       (1) In general.--Section 3 of the DNA Analysis Backlog 
     Elimination Act of 2000 (42 U.S.C. 14135a) is amended--
       (A) in subsection (a)--
       (i) in paragraph (1), by striking ``The Director'', and 
     inserting the following:
       ``(A) The Attorney General shall collect a DNA sample from 
     each individual who is arrested for, or accused by 
     information or indictment of, a qualifying Federal offense 
     (as determined under subsection (d)). The Attorney General 
     may delegate this function within the Department of Justice 
     as provided in section 510 of title 28, United States Code, 
     and may also authorize and direct any other agency that makes 
     arrests for such offenses or supervises persons facing 
     charges of such offenses to carry out any function and 
     exercise any power of the Attorney General under this 
     section.
       ``(B) The Director''; and
       (ii) in paragraphs (3) and (4), by striking ``Director of 
     the Bureau of Prisons'' each place it appears and inserting 
     ``Attorney General, the Director of the Bureau of Prisons,''; 
     and
       (B) in subsection (b), by striking ``Director of the Bureau 
     of Prisons'' and inserting ``Attorney General, the Director 
     of the Bureau of Prisons,''.
       (2) Conditions of release.--
       (A) Section 3142 amendments.--Subsections (b) and (c)(1)(A) 
     of section 3142 of title 18, United States Code, are each 
     amended by inserting ``and subject to the condition that the 
     person cooperate in the collection of a DNA sample from the 
     person if the collection of such a sample is authorized 
     pursuant to section 3 of the DNA Analysis Backlog Elimination 
     Act of 2000 (42 U.S.C. 14135a)'' after ``period of release''.
       (B) Backlog elimination act amendment.--Section 7(d) of the 
     DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 
     14135c) is amended by inserting ``, or on release under 
     chapter 207 of title 18, United States Code,'' before ``is 
     authorized''.

     SEC. 104. TOLLING OF STATUTE OF LIMITATIONS.

       (a) In General.--Chapter 213 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 3297. Cases involving DNA evidence

       ``In a case in which DNA testing implicates a person in the 
     commission of a felony, no statute of limitations that would 
     otherwise preclude prosecution of the offense shall preclude 
     such prosecution until a period of time following the 
     implication of the person by DNA testing has elapsed that is 
     equal to the otherwise applicable limitation period.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     213 of title 18, United States Code, is amended by adding at 
     the end the following:

``3297. Cases involving DNA evidence.''.

       (c) Application.--The amendments made by this section shall 
     apply to the prosecution of any offense committed before, on, 
     or after the date of the enactment of this section to the 
     full extent permitted by the Constitution.

     SEC. 105. LEGAL ASSISTANCE FOR VICTIMS OF VIOLENCE.

       Section 1201 of the Violence Against Women Act of 2000 (42 
     U.S.C. 3796gg-6) is amended--
       (1) in subsection (a), by inserting ``dating violence,'' 
     after ``domestic violence,'';
       (2) in subsection (b)--
       (A) by redesignating paragraphs (1) through (3) as 
     paragraphs (2) through (4), respectively;
       (B) by inserting before paragraph (2), as redesignated by 
     subparagraph (A), the following:
       ``(1) Dating violence.--The term `dating violence' means 
     violence committed by a person who is or has been in a social 
     relationship of a romantic or intimate nature with the 
     victim. The existence of such a relationship shall be 
     determined based on a consideration of--
       ``(A) the length of the relationship;
       ``(B) the type of relationship; and
       ``(C) the frequency of interaction between the persons 
     involved in the relationship.''; and
       (C) in paragraph (3), as redesignated by subparagraph (A), 
     by inserting ``dating violence,'' after ``domestic 
     violence,'';
       (3) in subsection (c)--
       (A) in paragraph (1)--
       (i) by inserting ``, dating violence,'' after ``between 
     domestic violence''; and
       (ii) by inserting ``dating violence,'' after ``victims of 
     domestic violence,'';
       (B) in paragraph (2), by inserting ``dating violence,'' 
     after ``domestic violence,''; and
       (C) in paragraph (3), by inserting ``dating violence,'' 
     after ``domestic violence,'';
       (4) in subsection (d)--
       (A) in paragraph (1), by inserting ``, dating violence,'' 
     after ``domestic violence'';
       (B) in paragraph (2), by inserting ``, dating violence,'' 
     after ``domestic violence'';
       (C) in paragraph (3), by inserting ``, dating violence,'' 
     after ``domestic violence''; and
       (D) in paragraph (4), by inserting ``dating violence,'' 
     after ``domestic violence,'';
       (5) in subsection (e), by inserting ``dating violence,'' 
     after ``domestic violence,''; and
       (6) in subsection (f)(2)(A), by inserting ``dating 
     violence,'' after ``domestic violence,''.

     SEC. 106. ENSURING PRIVATE LABORATORY ASSISTANCE IN 
                   ELIMINATING DNA BACKLOG.

       Section 2(d)(3) of the DNA Analysis Backlog Elimination Act 
     of 2000 (42 U.S.C. 14135(d)(3)) is amended to read as 
     follows:
       ``(3) Use of vouchers or contracts for certain purposes.--
       ``(A) In general.--A grant for the purposes specified in 
     paragraph (1), (2), or (5) of subsection (a) may be made in 
     the form of a voucher or contract for laboratory services, 
     even if the laboratory makes a reasonable profit for the 
     services.
       ``(B) Redemption.--A voucher or contract under subparagraph 
     (A) may be redeemed at a laboratory operated on a non-profit 
     or for-profit basis by a private entity that satisfies 
     quality assurance standards and has been approved by the 
     Attorney General.
       ``(C) Payments.--The Attorney General may use amounts 
     authorized under subsection (j) to make payments to a 
     laboratory described under subparagraph (B).''.

            TITLE II--DNA SEXUAL ASSAULT JUSTICE ACT OF 2003

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``DNA Sexual Assault Justice 
     Act of 2003''.

     SEC. 202. ENSURING PUBLIC CRIME LABORATORY COMPLIANCE WITH 
                   FEDERAL STANDARDS.

       Section 210304(b)(2) of the DNA Identification Act of 1994 
     (42 U.S.C. 14132(b)(2)), is amended to read as follows:
       ``(2) prepared by laboratories that--
       ``(A) not later than 2 years after the date of enactment of 
     the DNA Sexual Assault Justice Act of 2003, have been 
     accredited by a nonprofit professional association of persons 
     actively involved in forensic science that is nationally 
     recognized within the forensic science community; and
       ``(B) undergo external audits, not less than once every 2 
     years, that demonstrate compliance with standards established 
     by the Director of the Federal Bureau of Investigation; 
     and''.

     SEC. 203. DNA TRAINING AND EDUCATION FOR LAW ENFORCEMENT, 
                   CORRECTIONAL PERSONNEL, AND COURT OFFICERS.

       (a) In General.--The Attorney General shall make grants to 
     provide training, technical assistance, education, and 
     information relating to the identification, collection, 
     preservation, analysis, and use of DNA samples and DNA 
     evidence by--
       (1) law enforcement personnel, including police officers 
     and other first responders, evidence technicians, 
     investigators, and others who collect or examine evidence of 
     crime;
       (2) court officers, including State and local prosecutors, 
     defense lawyers, and judges;
       (3) forensic science professionals; and
       (4) corrections personnel, including prison and jail 
     personnel, and probation, parole, and other officers involved 
     in supervision.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated $12,500,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 204. SEXUAL ASSAULT FORENSIC EXAM PROGRAM GRANTS.

       (a) In General.--The Attorney General shall make grants to 
     eligible entities to provide training, technical assistance, 
     education, equipment, and information relating to the 
     identification, collection, preservation, analysis, and use 
     of DNA samples and DNA evidence by medical personnel and 
     other personnel, including doctors, medical examiners, 
     coroners, nurses, victim service providers, and other 
     professionals involved in treating victims of sexual assault 
     and sexual assault examination programs, including SANE 
     (Sexual Assault Nurse Examiner), SAFE (Sexual Assault 
     Forensic Examiner), and SART (Sexual Assault Response Team).
       (b) Eligible Entity.--For purposes of this section, the 
     term ``eligible entity'' includes--
       (1) States;
       (2) units of local government; and
       (3) sexual assault examination programs, including--
       (A) sexual assault nurse examiner (SANE) programs;
       (B) sexual assault forensic examiner (SAFE) programs;
       (C) sexual assault response team (SART) programs; and
       (D) State sexual assault coalitions.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated $30,000,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 205. DNA RESEARCH AND DEVELOPMENT.

       (a) Improving DNA Technology.--The Attorney General shall 
     make grants for research and development to improve forensic 
     DNA technology, including increasing the identification 
     accuracy and efficiency of DNA analysis, decreasing time and 
     expense, and increasing portability.
       (b) Demonstration Projects.--The Attorney General shall 
     conduct research through grants for demonstration projects 
     involving coordinated training and commitment of resources to 
     law enforcement agencies and key criminal justice 
     participants to demonstrate and evaluate the use of forensic 
     DNA technology in conjunction with other forensic tools. The 
     demonstration projects shall include scientific evaluation of 
     the public safety benefits, improvements to law enforcement 
     operations, and cost-effectiveness of increased collection 
     and use of DNA evidence.
       (c) National Forensic Science Commission.--
       (1) Appointment.--The Attorney General shall appoint a 
     National Forensic Science Commission (in this section 
     referred to as

[[Page S14049]]

     the ``Commission''), composed of persons experienced in 
     criminal justice issues, including persons from the forensic 
     science and criminal justice communities, to carry out the 
     responsibilities under paragraph (2).
       (2) Responsibilities.--The Commission shall--
       (A) assess the present and future resource needs of the 
     forensic science community;
       (B) make recommendations to the Attorney General for 
     maximizing the use of forensic technologies and techniques to 
     solve crimes and protect the public;
       (C) identify potential scientific advances that may assist 
     law enforcement in using forensic technologies and techniques 
     to protect the public;
       (D) make recommendations to the Attorney General for 
     programs that will increase the number of qualified forensic 
     scientists available to work in public crime laboratories;
       (E) disseminate, through the National Institute of Justice, 
     best practices concerning the collection and analyses of 
     forensic evidence to help ensure quality and consistency in 
     the use of forensic technologies and techniques to solve 
     crimes and protect the public;
       (F) examine additional issues pertaining to forensic 
     science as requested by the Attorney General;
       (G) examine Federal, State, and local privacy protection 
     statutes, regulations, and practices relating to access to, 
     or use of, stored DNA samples or DNA analyses, to determine 
     whether such protections are sufficient;
       (H) make specific recommendations to the Attorney General, 
     as necessary, to enhance the protections described in 
     subparagraph (G) to ensure--
       (i) the appropriate use and dissemination of DNA 
     information;
       (ii) the accuracy, security, and confidentiality of DNA 
     information;
       (iii) the timely removal and destruction of obsolete, 
     expunged, or inaccurate DNA information; and
       (iv) that any other necessary measures are taken to protect 
     privacy; and
       (I) provide a forum for the exchange and dissemination of 
     ideas and information in furtherance of the objectives 
     described in subparagraphs (A) through (H).
       (3) Personnel; procedures.--The Attorney General shall--
       (A) designate the Chair of the Commission from among its 
     members;
       (B) designate any necessary staff to assist in carrying out 
     the functions of the Commission; and
       (C) establish procedures and guidelines for the operations 
     of the Commission.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated $15,000,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 206. FBI DNA PROGRAMS.

       (a) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Federal Bureau of Investigation 
     $42,100,000 for each of the fiscal years 2004 through 2008 to 
     carry out the DNA programs and activities described under 
     subsection (b).
       (b) Programs and Activities.--The Federal Bureau of 
     Investigation may use any amounts appropriated pursuant to 
     subsection (a) for--
       (1) nuclear DNA analysis;
       (2) mitochondrial DNA analysis;
       (3) regional mitochondrial DNA laboratories;
       (4) the Combined DNA Index System;
       (5) the Federal Convicted Offender DNA Program; and
       (6) DNA research and development.

     SEC. 207. DNA IDENTIFICATION OF MISSING PERSONS.

       (a) In General.--The Attorney General shall make grants to 
     promote the use of forensic DNA technology to identify 
     missing persons and unidentified human remains.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated $2,000,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 208. ENHANCED CRIMINAL PENALTIES FOR UNAUTHORIZED 
                   DISCLOSURE OR USE OF DNA INFORMATION.

       Section 10(c) of the DNA Analysis Backlog Elimination Act 
     of 2000 (42 U.S.C. 14135e(c)) is amended to read as follows:
       ``(c) Criminal Penalty.--A person who knowingly discloses a 
     sample or result described in subsection (a) in any manner to 
     any person not authorized to receive it, or obtains or uses, 
     without authorization, such sample or result, shall be fined 
     not more than $100,000. Each instance of disclosure, 
     obtaining, or use shall constitute a separate offense under 
     this subsection.''.

     SEC. 209. TRIBAL COALITION GRANTS.

       Section 2001 of title I of the Omnibus Crime Control and 
     Safe Streets Act of 1968 (42 U.S.C. 3796gg) is amended by 
     adding at the end the following:
       ``(d) Tribal Coalition Grants.--
       ``(1) Purpose.--The Attorney General shall award grants to 
     tribal domestic violence and sexual assault coalitions for 
     purposes of--
       ``(A) increasing awareness of domestic violence and sexual 
     assault against Indian women;
       ``(B) enhancing the response to violence against Indian 
     women at the tribal, Federal, and State levels; and
       ``(C) identifying and providing technical assistance to 
     coalition membership and tribal communities to enhance access 
     to essential services to Indian women victimized by domestic 
     and sexual violence.
       ``(2) Grants to tribal coalitions.--The Attorney General 
     shall award grants under paragraph (1) to--
       ``(A) established nonprofit, nongovernmental tribal 
     coalitions addressing domestic violence and sexual assault 
     against Indian women; and
       ``(B) individuals or organizations that propose to 
     incorporate as nonprofit, nongovernmental tribal coalitions 
     to address domestic violence and sexual assault against 
     Indian women.
       ``(3) Eligibility for other grants.--Receipt of an award 
     under this subsection by tribal domestic violence and sexual 
     assault coalitions shall not preclude the coalition from 
     receiving additional grants under this title to carry out the 
     purposes described in subsection (b).''.

     SEC. 210. EXPANSION OF PAUL COVERDELL FORENSIC SCIENCES 
                   IMPROVEMENT GRANT PROGRAM.

       (a) Forensic Backlog Elimination Grants.--Section 2804 of 
     the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3797m) is amended--
       (1) in subsection (a)--
       (A) by striking ``shall use the grant to carry out'' and 
     inserting ``shall use the grant to--
       ``(1) carry out'';
       (B) by striking the period at the end and inserting a 
     semicolon; and
       (C) by adding at the end the following:
       ``(2) eliminate a backlog in the analysis of forensic 
     science evidence, including firearms examination, latent 
     prints, toxicology, controlled substances, forensic 
     pathology, questionable documents, and trace evidence; and
       ``(3) train, assist, and employ forensic laboratory 
     personnel, as needed, to eliminate a forensic evidence 
     backlog.'';
       (2) in subsection (b), by striking ``under this part'' and 
     inserting ``for the purpose set forth in subsection (a)(1)''; 
     and
       (3) by adding at the end the following:
       ``(e) Defined Term.--As used in this section, the term 
     `forensic evidence backlog' means forensic evidence that--
       ``(1) has been stored in a laboratory, medical examiner's 
     office, or coroner's office; and
       ``(2) has not been subjected to all appropriate forensic 
     testing because of a lack of resources or personnel.''.
       (b) External Audits.--Section 2802 of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3797k) is 
     amended--
       (1) in paragraph (2), by striking the ``and'' at the end;
       (2) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(4) a certification that a government entity exists and 
     an appropriate process is in place to conduct independent 
     external investigations into allegations of serious 
     negligence or misconduct substantially affecting the 
     integrity of the forensic results committed by employees or 
     contractors of any forensic laboratory system, medical 
     examiner's office, or coroner's office in the State that will 
     receive a portion of the grant amount.''.
       (c) Three-Year Extension of Authorization of 
     Appropriations.--Section 1001(a) of the Omnibus Crime Control 
     and Safe Streets Act of 1968 (42 U.S.C. 3793(a)) is amended 
     by striking paragraph (24) and inserting the following:--
       ``(24) There are authorized to be appropriated to carry out 
     part BB of this Act, to remain available until expended--
       ``(A) $35,000,000 for fiscal year 2004;
       ``(B) $85,400,000 for fiscal year 2005;
       ``(C) $134,733,000 for fiscal year 2006;
       ``(D) $128,067,000 for fiscal year 2007;
       ``(E) $56,733,000 for fiscal year 2008; and
       ``(F) $42,067,000 for fiscal year 2009.''.

     SEC. 211. CREATION OF NEW FORENSIC BACKLOG ELIMINATION GRANT 
                   PROGRAM.

       (a) Grants Authorized.--The Attorney General is authorized 
     to award grants to States, units of local government, and 
     tribal governments to eliminate forensic science backlogs.
       (b) Purpose.--The purpose of the grant program established 
     under this section is to--
       (1) eliminate the backlog in the analysis of any area of 
     forensic science evidence, including firearms examination, 
     latent prints, toxicology, controlled substances, forensic 
     pathology, questionable documents, and trace evidence; and
       (2) train, assist, and employ forensic laboratory personnel 
     as needed to eliminate a forensic evidence backlog.
       (c) Use of Funds.--
       (1) Supplanting prohibited.--Grant funds made available to 
     applicants under this section shall be used to supplement and 
     not supplant other Federal or State funds.
       (2) Administrative costs.--An applicant may use not more 
     than 5 percent of the funds received through grants awarded 
     under this section for administrative costs.
       (d) Application.--
       (1) In general.--A State, local government, or tribal 
     government desiring a grant under this section, shall submit 
     to the Attorney General an application in such form and 
     containing such information as the Attorney General may 
     require.
       (2) Assurances and certification.--The application 
     submitted under paragraph (1) shall--
       (A) provide assurances that the applicant has implemented, 
     or will implement not later than 120 days after the 
     submission date

[[Page S14050]]

     of such application, a comprehensive plan for the expeditious 
     analysis of the forensic evidence currently backlogged; and
       (B) certify that the forensic science laboratory--
       (i) employs generally accepted practices and procedures; 
     and
       (ii) is accredited by the Laboratory Accreditation Board of 
     the American Society of Crime Laboratory Directors or the 
     National Association of Medical Examiners or any other 
     nonprofit professional organization that may be recognized 
     within the forensic science community as competent to award 
     such accreditation.
       (e) Defined Term.--As used in this section, the term 
     ``forensic evidence backlog'' means--
       (1) particular forensic evidence has been admitted to the 
     laboratory faster than it can be analyzed; or
       (2) pertinent testing has been curtailed or not performed 
     due to lack of resources.
       (f) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Attorney General $20,000,000 for 
     each of the fiscal years 2005 through 2009 for grants under 
     this section.

     SEC. 212. REPORT TO CONGRESS.

       (a) In General.--Not later than 2 years after the date of 
     enactment of this Act, the Attorney General shall submit to 
     Congress a report on the implementation of this Act.
       (b) Contents.--The report submitted under subsection (a) 
     shall include a description of--
       (1) the progress made by Federal, State, and local entities 
     in--
       (A) collecting and entering DNA samples from offenders 
     convicted of qualifying offenses for inclusion in the 
     Combined DNA Index System (referred to in this subsection as 
     ``CODIS'');
       (B) analyzing samples from crime scenes, including evidence 
     collected from sexual assaults and other serious violent 
     crimes, and entering such DNA analyses in CODIS; and
       (C) increasing the capacity of forensic laboratories to 
     conduct DNA analyses;
       (2) the priorities and plan for awarding grants among 
     eligible States and units of local government to ensure that 
     the purposes of this Act are carried out;
       (3) the distribution of grant amounts under this Act among 
     eligible States and local governments, and whether the 
     distribution of such funds has served the purposes of the 
     Debbie Smith DNA Backlog Grant Program;
       (4) grants awarded and the use of such grants by eligible 
     entities for DNA training and education programs for law 
     enforcement, correctional personnel, court officers, medical 
     personnel, victim service providers, and other personnel 
     authorized under sections 203 and 204;
       (5) grants awarded and the use of such grants by eligible 
     entities to conduct DNA research and development programs to 
     improve forensic DNA technology, and implement demonstration 
     projects under section 205;
       (6) the steps taken to establish the National Forensic 
     Science Commission, and the activities of the Commission 
     under section 205(c);
       (7) the use of funds by the Federal Bureau of Investigation 
     under section 206;
       (8) grants awarded and the use of such grants by eligible 
     entities to promote the use of forensic DNA technology to 
     identify missing persons and unidentified human remains under 
     section 207;
       (9) grants awarded and the use of such grants by eligible 
     entities to eliminate forensic science backlogs under 
     sections 210 and 211; and
       (10) any other matters considered relevant by the Attorney 
     General.
                                  ____



                            Criminal Justice Legal Foundation,

                                 Sacramento, CA, November 5, 2003.
     Hon. Jon Kyl,
     U.S. Senate,
     Washington, DC.
       Dear Mr. Kyl: Recently, the Judiciary Committee approved 
     H.R. 3214, the ``Advancing Justice Through DNA Technology Act 
     of 2003.'' Although the goals of this bill are laudable, one 
     provision in particular is extremely ill-considered, and it 
     will actually operate to obstruct the system rather than 
     improve it. Section 321 should be deleted from the bill.
       Section 321 authorizes grants ``for the purpose of 
     improving the quality of legal representation provided to 
     indigent defendants in State capital cases.'' That is 
     certainly a worthy purpose, but this bill will not achieve 
     it. Instead, it is a giant step backward in the direction of 
     the discredited ``resource centers'' which Congress defunded 
     years ago, after finding that they had become taxpayer-funded 
     nests of saboteurs.
       A condition for the grant is that a state establish an 
     ``effective system'' for capital representation. However, 
     ``effective system'' is nonsensically defined as one that 
     removes the authority to appoint trial counsel from the trial 
     judge and gives it to a central authority composed of capital 
     defense lawyers.
       We saw with the ``resource centers'' how these capital 
     representation organizations were invariably staffed by hard-
     core, anti-death-penalty fanatics who saw it as their mission 
     to bring the system to a screeching halt. In an unusual 
     moment of candor, the head of one of the resource centers 
     wrote in a published article that it was the duty of the 
     lawyer to file motions just to ``make trouble,'' Lyon, 
     Defending the Capital Case: What Makes Death Different? 42 
     Mercer L. Rev. 695, 700 (1991). Such conduct is, of course, 
     clearly unethical. In 1996, Congress finally woke up to what 
     was being done with taxpayer money and defunded the resource 
     centers.
       Appointment authority is one of the few checks available 
     against unethical conduct by defense lawyers. The attorney 
     discipline system is toothless. The prosecution cannot appeal 
     on defense misconduct, the way the defense does on prosecutor 
     misconduct. The trial judge's refusal to appoint lawyers who 
     are notorious for obstructionism and other unethical behavior 
     is the most effective deterrent. To remove the appointment 
     authority to an entity full of people who actually encourage 
     such misconduct is a recipe for chaos.
       Congress has not removed the appointment authority from 
     federal district judges, for good reason. A number of states 
     have recently implemented improvements to their capital 
     representation systems. These reforms have taken different 
     shapes in different states, as is appropriate for a federal 
     system. Instead of evaluating the different approaches to see 
     which one works best in the real world, section 321 would 
     declare most, if not all, of them ``ineffective,'' and deny 
     defense grants to states that have chosen a different and 
     possibly better path. Section 326 effectively makes a state 
     ineligible for the prosecution grants if it chooses not to 
     change its appointment system to qualify for the defense 
     grants.
       Congress should not mandate a single solution without the 
     most careful consideration of the reforms the states have 
     already enacted. The problem of effective counsel is a 
     complex one. It requires more study and more debate before 
     Congress endorses a particular solution. Section 321 of H.R. 
     3214 is half-baked, and it should be deleted.
           Sincerely,
                                              Kent S. Scheidegger,
     Legal Director.
                                  ____


              [From National Review Online, Oct. 29, 2003]

  Protection Racket--Congress Prepares To Fund the Anti-Death-Penalty 
                                 Lobby

                          (By Ramesh Ponnuru)

       Why is a Republican Congress considering a bill to fund 
     anti-death-penalty activists? A bill that could result in 
     murderers going free? A bill that was initially introduced to 
     hurt George W. Bush? Beats me. But that's exactly what 
     Congress is doing.
       In early 2000, Democrats were portraying George W. Bush's 
     Texas as a third-world hellhole where the water was dirty, 
     the churches were filled with guns, and the streets ran red 
     with blood of unlucky defendants. A few anecdotes in which 
     public defenders really had been lax in capital murder cases 
     were extrapolated into a critique of law enforcement in the 
     state. At around this time, Senator Patrick Leahy of Vermont 
     and Representative William Delahunt of Massachusetts, both 
     Democrats, introduced the ``Innocence Protection Act.'' 
     Supposedly, the bill was going to keep innocents from getting 
     put on death row by, among other things, providing for better 
     legal defenses for accused capital murderers.
       In a modified form, the bill has been made part of the 
     ``Advancing Justice Through DNA Technology Act of 2003.'' 
     Sponsors of the bill include Orrin Hatch and James 
     Sensenbrenner, the chairmen of the House and Senate judiciary 
     committees. The House Judiciary Committee voted for the bill 
     28-1. Conservative Jeff Flake was the only dissenter.
       There are two major problems with the bill. First, its low 
     standard for requiring new trials makes it likely that 
     murderers will go free. The bill says that federal prisoners 
     have a right to a new trial if a DNA test ``establish[es] by 
     a preponderance of evidence that a new trial would result in 
     acquittal.'' This standard is very different from a 
     requirement that the DNA test establish that the prisoner 
     probably did not commit the crime. DNA at a murder scene can, 
     of course, come from a variety of sources. It may be that the 
     jury in the original trial, faced with a negative DNA result, 
     would have found the defendant guilty anyway based on other 
     evidence. But witnesses die and evidence deteriorates. Wait 
     long enough to get a DNA test, and a new trial may be 
     unlikely to yield a conviction even if the defendant actually 
     committed the crime. The ``result in acquittal'' standard is 
     used to allow new trials based on new evidence--but only 
     within three years of the original trial. This bill has no 
     such time limit. The result is not a reduced sentence, but 
     the defendant's walking.
       The second problem is that the bill bribes states to give 
     up control of their public-defender systems. Essentially, the 
     bill would funnel taxpayer dollars to the ``capital resource 
     centers'' that Congress defunded in 1996, having found 
     that they frequently abused the appeals process. (See 
     pages 53-57 of this report for a long list of examples of 
     such abuses.) Abuses would be likely since state courts, 
     and other branches of state and local government, would no 
     longer have supervisory authority over publicly funded 
     defense counsel. Indeed, supporters of the Innocence 
     Protection Act have been positively enthusiastic about one 
     form of abuse. When Leahy ran the Judiciary Committee last 
     year, it issued a report that said that capital resource 
     centers ``may legitimately assert a large number of 
     claims'' based on a ``reversal of existing law.'' In other 
     words, it's legitimate for tax-funded public defenders to 
     file a ``large number of claims'' that are precluded by 
     current law.
       Is federal intervention necessary? States have been busy 
     reforming their own capital-

[[Page S14051]]

     defense systems. But the same Leahy report mentioned earlier 
     identified five cases in which ineffective counsel had led 
     innocent people to be sentenced to death. But as the 
     dissenting Republican report pointed out, the five cases 
     Leahy discussed established no such thing. In one of the 
     cases, the defendent was never actually sentenced to death. 
     In three of the cases, it is not at all clear that the 
     defendant was innocent. (Prosecutors declined to retry them 
     because evidence had deteriorated. In one case, for example, 
     the building in which the murder took place had been 
     demolished.) The cases are marked more, in any case, by 
     prosecutorial misconduct than by sloppy defenses.
       That's true, by the way, of cases in which actually 
     innocent people have been put on death row. It has generally 
     been because prosecutors relied too much on unreliable 
     evidence, such as the testimony of jailhouse informants, or 
     because police and prosecutors acted in grossly improper 
     ways. (Say hello to our friends in Cook County.) When 
     prosecutors suppress evidence, the most competent defense 
     attorneys will be at a disadvantage. The Innocence Protection 
     Act's capital-defense provisions will not ameliorate that 
     problem. But then, it's more about funneling tax money to 
     opponents of the death penalty than springing truly innocent 
     people from death row.
       ``What's disgusting is we're actually wasting time fighting 
     this in a Republican Congress,'' says one Republican Senate 
     staffer.
                                 ______