[Congressional Record Volume 150, Number 128 (Saturday, October 9, 2004)]
[Senate]
[Pages S10910-S10917]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INNOCENCE PROTECTION ACT OF 2004
Mr. HATCH. Mr. President, I ask unanimous consent that the Senate
immediately proceed to the consideration of H.R. 5107, the DNA bill,
which is at the desk; further, that the bill be read a third time and
passed and the motion to reconsider be laid upon the table; provided
further, that when the Senate receives from the House a correcting
enrollment resolution relating to H.R. 5107, the Senate proceed to its
consideration and the resolution be agreed to and the motion to
reconsider be laid upon the table. Finally, I ask unanimous consent
that if the House does not adopt the correcting enrollment resolution
by the end of this Congress, then the Senate action on H.R. 5107 be
vitiated.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The bill (H.R. 5107) was read the third time and passed.
Mr. HATCH. Mr. President, this is the very important DNA bill which
will help resolve the difficulties with over 400,000 rape kits in this
country, some of which are 20 years old or older.
Mr. President, I would just like to compliment Debbie Smith and Kirk
Bloodsworth, who are two of the initiating people who have helped bring
this about, but also all the people who worked so hard: Senator Leahy,
Senator Biden, Senator Specter, Senator Feinstein, Senator DeWine and,
of course on the House side, Chairman Sensenbrenner and Representative
Bill Delahunt for their dogged determination, and to Senators Kyl,
Sessions, and Cornyn who did a really great job on this bill; also
staff on both sides, in both Houses.
With that, I yield the floor.
Mr. KYL. Mr. President, as the primary drafter of Title I of H.R.
5107, I would like to make a few comments. After extensive consultation
with my colleagues, broad bipartisan consensus was reached and the
language in Title I was agreed to.
I would like to make it clear that it is not the intent of this bill
to limit any laws in favor of crime victims that may currently exist,
whether these laws are statutory, regulatory, or found in case law. I
would like to turn to the bill itself and address the first section,
(a)(1), the right of the crime victim to be reasonably protected. Of
course the government cannot protect the crime victim in all
circumstances. However, where reasonable, the crime victim should be
provided accommodations such as a secure waiting area, away from the
defendant before and after and during breaks in the proceedings. The
right to protection also extends to require reasonable conditions of
pre-trial and post-conviction relief that include protections for the
victim's safety.
I would like to address the notice provisions of (a)(2). The notice
provisions are important because if a victim fails to receive notice of
a public proceeding in the criminal case at which the victim's right
could otherwise have been exercised, that right has effectively been
denied. Public court proceedings include both trial level and appellate
level court proceedings. It does not make sense to enact victims'
rights that are rendered useless because the victim never knew of the
proceeding at which the right had to be asserted. Simply put, a failure
to provide notice of proceedings at which a right can be asserted is
equivalent to a violation of the right itself.
Equally important to this right to notice of public proceedings is
the right to notice of the escape or release of the accused. This
provision helps to protect crime victims by notifying them that the
accused is out on the streets.
For these rights to notice to be effective, notice must be
sufficiently given in advance of a proceeding to give the crime victim
the opportunity to arrange his or her affairs in order to be able to
attend that proceeding and any scheduling of proceedings should take
into account the victim's schedule to facilitate effective notice.
Restrictions on public proceedings are in 28 CFR Sec. 50.9 and it is
not the intent here today to alter the meaning of that provision.
Too often crime victims have been unable to exercise their rights
because they were not informed of the proceedings. Pleas and
sentencings have all too frequently occurred without the victim ever
knowing that they were taking place. Victims are the persons who are
directly harmed by the crime and they have a stake in the criminal
process because of that harm. Their lives are significantly altered by
the crime and they have to live with the consequences for the rest of
their lives. To deny them the opportunity to know of and be present at
proceedings is counter to the fundamental principles of this country.
It is simply wrong. Moreover, victim safety requires that notice of the
release or escape of an accused from custody be made in a timely manner
to allow the victim to make informed choices about his or her own
safety. This provision ensures that takes place.
I would like to turn to (a)(3), which provides that the crime victim
has the right not to be excluded from any public proceedings. This
language was drafted in a way to ensure that the government would not
be responsible for paying for the victim's travel and lodging to a
place where they could attend the proceedings.
In all other respects, this section is intended to grant victims the
right to attend and be present throughout all public proceedings.
This right is limited in two respects. First, the right is limited to
public proceedings, thus grand jury proceedings are excluded from the
right. Second, the government or the defendant can request, and the
court can order, judicial proceedings to be closed under existing laws.
This provision is not intended to alter those laws or their procedures
in any way. There may be organized crime cases or cases involving
national security that require procedures that necessarily deny a crime
victim the right not to be excluded that would otherwise be provided
under this section. This is as it should be. National security matters
and organized crime cases are especially challenging and there are
times when there is a vital need for closed proceedings. In such cases,
the proceedings are not intended to be interpreted as ``public
proceedings'' under this bill. In this regard, it is not our intent to
alter 28 CFR Sec. 50.9 in any respect.
Despite these limitations, this bill allows crime victims, in the
vast majority of cases, to attend the hearings and trial of the case
involving their victimization. This is so important because crime
victims share an interest with the government in seeing that justice is
done in a criminal case and this interest supports the idea that
victims should not be excluded from public criminal proceedings,
whether these are pre-trial, trial, or post-trial proceedings.
When ``the court, after receiving clear and convincing evidence,
determines that testimony by the victim would be materially altered if
the victim heard other testimony at that proceeding,'' a victim may be
excluded. The standards of ``clear and convincing evidence'' and
``materially altered'' are extremely high and intended to make
exclusion of the victim quite rare, especially since (b) says that
``before making a determination described in subsection (a)(3), the
court shall make every effort to permit the fullest attendance possible
by the victim and shall consider reasonable alternatives to the
exclusion of the victim from the
[[Page S10911]]
criminal proceeding.'' It should be stressed that (b) requires that
``the reasons for any decision denying relief under this chapter shall
be clearly stated on the record.'' A judge should explain in detail the
precise reasons why relief is being denied.
This right of crime victims not to be excluded from the proceedings
provides a foundation for (a)(4), which provides victims the right to
reasonably be heard at any public proceeding involving release, plea,
or sentencing. This provision is intended to allow crime victims to
directly address the court in person. It is not necessary for the
victim to obtain the permission of either party to do so. This right is
a right independent of the government or the defendant that allows the
victim to address the court. To the extent the victim has the right to
independently address the court, the victim acts as an independent
participant in the proceedings. When a victim invokes this right during
plea and sentencing proceedings, it is intended that the he or she be
allowed to provide all three types of victim impact: the character of
the victim, the impact of the crime on the victim, the victims' family
and the community, and sentencing recommendations. Of course, the
victim may use a lawyer, at the victim's own expense, to assist in the
exercise of this right. This bill does not provide victims with a right
to counsel but recognizes that a victim may enlist a counsel on their
own.
It is not the intent of the term ``reasonably'' in the phrase ``to be
reasonably heard'' to provide any excuse for denying a victim the right
to appear in person and directly address the court. Indeed, the very
purpose of this section is to allow the victim to appear personally and
directly address the court. This section would fail in its intent if
courts determined that written, rather than oral communication, could
generally satisfy this right. On the other hand, the term
``reasonably'' is meant to allow for alternative methods of
communicating a victim's views to the court when the victim is unable
to attend the proceedings. Such circumstances might arise, for example,
if the victim is incarcerated on unrelated matters at the time of the
proceedings or if a victim cannot afford to travel to a courthouse. In
such cases, communication by the victim to the court is permitted by
other reasonable means. In short, the victim of crime, or their
counsel, should be able to provide any information, as well as their
opinion, directly to the court concerning the release, plea, or
sentencing of the accused. This bill intends for this right to be heard
to be an independent right of the victim.
It is important that the ``reasonably be heard'' language not be an
excuse for minimizing the victim's opportunity to be heard. Only if it
is not practical for the victim to speak in person or if the victim
wishes to be heard by the court in a different fashion should this
provision mean anything other than an in-person right to be heard.
Of course, in providing victim information or opinion it is important
that the victim be able to confer with the prosecutor concerning a
variety of matters and proceedings. Under (a)(5), the victim has a
reasonable right to confer with the attorney for the government in the
case. This right is intended to be expansive. For example, the victim
has the right to confer with the government concerning any critical
stage or disposition of the case. The right, however, it is not limited
to these examples. This right to confer does not give the crime victim
any right to direct the prosecution. Prosecutors should consider it
part of their profession to be available to consult with crime victims
about concerns the victims may have which are pertinent to the case,
case proceedings or dispositions. Under this provision, victims are
able to confer with the government's attorney about proceedings after
charging. I would note that the right to confer does impair the
prosecutiorial discretion of the Attorney General or any officer under
his direction, as provided (d)(6).
I would like to turn now to restitution in (a)(6). This section
provides the right to full and timely restitution as provided in law.
We specifically intend to endorse the expansive definition of
restitution given by Judge Cassell in U.S. v. Bedonie and U.S. v.
Serawop in May 2004. This right, together with the other rights in the
act to be heard and confer with the government's attorney in this act,
means that existing restitution laws will be more effective.
I would like to move on to (a)(7), which provides crime victims with
a right to proceedings free from unreasonable delay. This provision
does not curtail the government's need for reasonable time to organize
and prosecute its case. Nor is the provision intended to infringe on
the defendant's due process right to prepare a defense. Too often,
however, delays in criminal proceedings occur for the mere convenience
of the parties and those delays reach beyond the time needed for
defendant's due process or the government's need to prepare. The result
of such delays is that victims cannot begin to put the criminal justice
system behind them and they continue to be victimized. It is not right
to hold crime victims under the stress and pressure of future court
proceedings merely because it is convenient for the parties or the
court.
This provision should be interpreted so that any decision to
schedule, reschedule, or continue criminal cases should include victim
input through the victim's assertion of the right to be free from
unreasonable delay.
I would add that the delays in criminal proceedings are among the
most chronic problems faced by victims. Whatever peace of mind a victim
might achieve after a crime is too often inexcusably postponed by
unreasonable delays in the criminal case. A central reason for these
rights is to force a change in a criminal justice culture which has
failed to focus on the legitimate interests of crime victims, a new
focus on limiting unreasonable delays in the criminal process to
accommodate the victim is a positive start.
I would like to turn to (a)(8). The broad rights articulated in this
section are meant to be rights themselves and are not intended to just
be aspirational. One of these rights is the right to be treated with
fairness. Of course, fairness includes the notion of due process. Too
often victims of crime experience a secondary victimization at the
hands of the criminal justice system. This provision is intended to
direct government agencies and employees, whether they are in executive
or judicial branches, to treat victims of crime with the respect they
deserve and to afford them due process.
It is not the intent of this bill that its significance be whittled
down or marginalized by the courts or the executive branch. This
legislation is meant to correct, not continue, the legacy of the poor
treatment of crime victims in the criminal process. This legislation is
meant to ensure that cases like the McVeigh case, where victims of the
Oklahoma City bombing were effectively denied the right to attend the
trial and to avoid federal appeals courts from determining, as the
Tenth Circuit Court of Appeals did, that victims had no standing to
seek review of their right to attend the trial under the former
victims' law that this bill replaces.
I would also like to comment on (b), which directs courts to ensure
that the rights in this law be afforded and to record, on the record,
any reason for denying relief of an assertion of a crime victim. This
provision is critical because it is in the courts of this country that
these rights will be asserted and it is the courts that will be
responsible for enforcing them. Further, requiring a court to provide
the reasons for denial of relief is necessary for effective appeal of
such denial.
Turning briefly to (c), there are several important things to point
out. First, this provision requires that the government inform the
victim that the victim can seek the advice of the attorney, such as
from the legal clinics for crime victims contemplated under this law,
such as the law clinics at Arizona State University and those supported
by the National Crime Victim Law Institute at the Law School at Lewis
and Clark College in Portland, Oregon. This is an important protection
for crime victims because it ensures the independent and individual
nature of their rights. Second, the notice section immediately
following limits the right to notice of release where such notice may
endanger the safety of the person being released. There are cases,
particularly in domestic violence cases, where there is danger posed by
an intimate partner if the intimate partner is
[[Page S10912]]
released. Such circumstances are not the norm, even in domestic
violence cases as a category of cases. This exception should not be
relied upon as an excuse to avoid notifying most victims.
I would now like to address the enforcement provisions of the bill in
(d). This provision allows a crime victim to enter the criminal trial
court during proceedings involving the crime against the victim, to
stand with other counsel in the well of the court, and assert the
rights provided by this bill. This provision ensures that crime victims
have standing to be heard in trial courts so that they are heard at the
very moment when their rights are at stake and this, in turn, forces
the criminal justice system to be responsive to a victim's rights in a
timely way. Importantly, however, the bill does not allow the defendant
in the case to assert any of the victim's rights to obtain relief. This
prohibition prevents the individual accused of the crime from
distorting a right intended for the benefit of the individual victim
into a weapon against justice.
The provision allows the crime victim's representative and the
attorney for the government to go into a criminal trial court and
assert the crime victim's rights. The inclusions of representatives and
the government's attorney in the provision are important for a number
of reasons. First, allowing a representative to assert a crime victim's
rights ensures that where a crime victim is unable to assert the rights
on his or her own for any reason, including incapacity, incompetence,
minority, or death, those rights are not lost. The representative for
the crime victim can assert the rights. Second, a crime victim may
choose to enlist a private attorney to represent him or her in the
criminal case--this provision allows that attorney to enter an
appearance on behalf of the victim in the criminal trial court and
assert the victim's rights. The provision also recognizes that, at
times, the government's attorney may be best situated to assert a crime
victim's rights either because the crime victim is not available at a
particular point in the trial or because, at times, the crime victim's
interests coincide with those of the government and it makes sense for
a single person to express those joined interests. Importantly,
however, the provision does not mean that the government's attorney has
the authority to compromise or co-opt a victim's right. Nor does the
provision mean that by not asserting a victim's right the government's
attorney has waived that right. The rights provided in this bill are
personal to the individual crime victim and it is that crime victim
that has the final word regarding which of the specific rights to
assert and when. Waiver of any of the individual rights provided can
only happen by the victim's affirmative waiver of that specific right.
In sum, without the ability to enforce the rights in the criminal
trial and appellate courts of this country any rights afforded are, at
best, rhetoric. We are far past the point where lip service to victims'
rights is acceptable. The enforcement provisions of this bill ensure
that never again are victim's rights provided in word but not in
reality.
I want to turn to (d)(2) because it is an unfortunate reality that in
today's world there are crimes that result in multiple victims. The
reality of those situations is that a court may find that the sheer
number of victims is so large that it is impracticable to accord each
victim the rights in this bill. The bill allows that when the court
makes that finding on the record the court must then fashion a
procedure that still gives effect to the bill and yet takes into
account the impracticability. For instance, in the Oklahoma City
bombing case the number of victims was tremendous and attendance at any
one proceeding by all of them was impracticable so the court fashioned
a procedure that allowed victims to attend the proceedings by close
circuit television. This is merely one example. Another may be to allow
victims with a right to speak to be heard in writing or through other
methods. Importantly, courts must seek to identify methods that fit the
case before that to ensure that despite the high number of crime
victims, the rights in this bill are given effect. It is a tragic
reality that cases may involve multiple victims and yet that fact is
not grounds for eviscerating the rights in this bill. Rather, that fact
is grounds for the court to find an alternative procedure to give
effect to this bill.
I now want to turn to another critical aspect of enforcement of
victims' rights, (d)(3). This subsection provides that a crime victim
who is denied any of his or her rights as a crime victim has standing
to seek appellate review of that denial. Specifically, the provision
allows a crime victim to apply for a writ of mandamus to the
appropriate appellate court. The provision provides that court shall
take the writ and shall order the relief necessary to protect the crime
victim's right. This provision is critical for a couple of reasons.
First, it gives the victim standing to appear before the appellate
courts of this country and ask for review of a possible error below.
Second, while mandamus is generally discretionary, this provision means
that courts must review these cases. Appellate review of denials of
victims' rights is just as important as the initial assertion of a
victim's right. This provision ensures review and encourages courts to
broadly defend the victims' rights.
Without the right to seek appellate review and a guarantee that the
appellate court will hear the appeal and order relief, a victim is left
to the mercy of the very trial court that may have erred. This
country's appellate courts are designed to remedy errors of lower
courts and this provision requires them to do so for victim's rights.
For a victim's right to truly be honored, a victim must be able to
assert the rights in trial courts, to then be able to have denials of
those rights reviewed at the appellate level, and to have the appellate
court take the appeal and order relief. By providing for all of this,
this bill ensures that victims' rights will have meaning. It is the
clear intent and expectation of Congress that the district and
appellate courts will establish procedures that will allow for a prompt
adjudication of any issues regarding the assertion of a victim's right,
while giving meaning to the rights we establish.
I would like to turn our attention to (d)(4) because that also
provides an enforcement mechanism. This section provides that in any
appeal, regardless of the party initiating the appeal, the government
can assert as error the district court's denial of a crime victim's
right. This subsection is important for a couple of reasons. First, it
allows the government to assert a victim's right on appeal even when it
is the defendant who seeks appeal of his or her conviction. This
ensures that victims' rights are protected throughout the criminal
justice process and that they do not fall by the wayside during what
can often be an extended appeal that the victim is not a party to.
I would like to turn to the next provision, (d)(5). This provision is
not intended to prevent courts from vacating decisions in non-trial
proceedings, such as proceedings involving release, delay, pleas, or
sentencings, in which victims' rights were not protected, and ordering
those proceedings to be redone.
It is important for victims' rights to be asserted and protected
throughout the criminal justice process, and for courts to have the
authority to redo proceedings such as release, delay, pleas, and
sentencings, where victims' rights are abridged.
I want to turn to the definitions in the bill, contained in (e).
There are a couple of key points to be made about the definitions. A
``crime victim'' is defined as a person directly and proximately harmed
as a result of a federal offense or an offense in the District of
Columbia. This is an intentionally broad definition because all victims
of crime deserve to have their rights protected, whether or not they
are the victim of the count charged. Additionally, crime victims may,
for any number of reasons, want to employ an attorney to represent them
in court. This definition of crime victim allows crime victims to do
that. It also assures that when, for any reason, crime victims unable
to assert rights on their own--those rights will still be protected.
Now I would like to turn to the portion of the bill concerning
administrative compliance with victims' rights. The provisions of (f)
are relatively self-explanatory, but it important to point out that
these procedures are completely separate from and in no way limit the
victim's rights in the previous section.
I also would like to make it clear that it is the intention of the
Congress
[[Page S10913]]
that the money authorized in 1404D for the Director of the Office for
Victims of Crimes ``for the support of organizations that provide legal
counsel and support services for victims in criminal cases for the
enforcement of crime victims' rights in Federal jurisdictions, and in
States and tribal governments . . .'' is intended to support the work
of the National Crime Victim Law Institute at the Law School at Lewis
and Clark College in Portland, Oregon, and to replicate across the
nation the clinics that it is supporting, fashioned after the Crime
Victims Legal Assistance Project housed at Arizona State University
College of Law and run by Arizona Voice for Crime Victims. The Director
of OVC should take care to make sure that these funds go into the
support of these programs so that crime victims can receive free legal
counsel to enforce their rights in our federal courts. Only in this way
will be able to fully and fairly test whether statutes are enough to
protect victims' rights. There is no substitute for testing these
rights in our courts to see if they have the power to change a culture
that for too long has ignored the victim.
Let me comment briefly on the provision on reports. Under (a), the
Administrative Office of the U.S. Courts to report annually the number
of times a right asserted in a criminal case is denied the relief
requested, and the reasons therefore, as well as the number of times a
mandamus action was brought and the result of that mandamus.
Such reporting is the only way we in the Congress and other
interested parties can observe whether reforms we mandate are being
carried out. No one doubts the difficulty of obtaining case-by-case
information of this nature. Yes, this information is critical to
understanding whether federal statutes really can effectively protect
victim's rights or whether a constitutional amendment is necessary. We
are certain that affected executive and judicial agencies can work
together to implement effective administrative tools to record and
amass this data. We would certainly encourage the National Institute of
Justice to support any needed research to get this system in place.
One final point. Throughout this Act reference is made to the
``accused.'' The intent is for this word to be used in the broadest
sense to include both those charged and convicted so that the rights we
establish apply throughout the criminal justice system.
Title IV
Mr. HATCH. Before we agree to send this bill to the House, there are
a number of concerns raised with respect to the capital-counsel section
of Title IV that I would like to address with my colleagues. I know
that this title has been of particular concern to my friend from Texas,
Senator Cornyn.
Mr. CORNYN. I thank the Senator. I do have a number of concerns about
the Innocence Protection Act. Namely, I am concerned that under this
bill, states effectively are required to adhere to a Federal regulatory
system, answering to the Department of Justice, for defense and
prosecution representation in State capital cases. However, I have been
encouraged by recent modifications to the bill that lead me to believe
a greater balance has been struck between ensuring strong capital
representation systems and supporting the prosecution and sentencing of
violent criminals. Senator Hatch, is it your belief that such a balance
has been struck?
Mr. HATCH. That is my belief. And let me first say that I appreciate
the concerns of the Senator from Texas as well as those of Senators Kyl
and Sessions, each of whom have worked very hard on this important
issue. You bring to the debate a wealth of experience in this area,
having served as Attorney General of your home State of Texas and as a
Judge, and you have worked tirelessly on this, and I thank you for it.
The recent modifications to the bill are a great improvement. The
bill is the result of the hard work and dedication of many on both
sides of the aisle. Most importantly, we have significantly reworked
this bill so as to address the legitimate concerns you, Senators Kyl
and Sessions as well as others have raised.
Specifically, we made some changes to the capital representation
section of the Innocence Protection Act. We worked with the House to
add language similar to language in the amendment that you offered in
the Judiciary Committee language that would require that a large
majority of the funding in this area to go to the trial level, rather
than to the appellate or habeas litigation. This shift in funding
allocation is a further safeguard against your concerns that funds
might go to particular advocacy groups because they typically become
involved in these cases at the appellate level.
Mr. CORNYN. On this issue--the issue of capital representation, I
note that there is a provision in place negotiated by Majority Leader
DeLay and other members of the Texas delegation in the House designed
to protect the capital representation system that is in place in Texas?
Do I understand that correctly?
Mr. HATCH. Yes. Section 421(d)(1)(C) was added specifically to ensure
that Texas, or any other State with a similarly structured system,
would qualify as an ``effective system'' under the statute. This
provision has been referred to as the ``Texas carve-out'' throughout
debate over this bill. It is appropriate in light of the changes Texas
enacted in order to improve its capital-representation system just 3
years ago.
Mr. CORNYN. I thank the Senator. I share the perspective that Texas'
system is preserved as a so-called ``effective system'' under the
statute. And that is critically important. As you point out, in 2001,
the Texas Legislature passed the Texas Fair Defense Act to overhaul
Texas' indigent criminal defense system. The legislation passed ensures
prompt appointment of an attorney for indigent criminal defendants,
provides guidelines on method of appointment for counsel, establishes
minimum standards for appointed attorneys in capital cases, and
provides both State resources and oversight of county's indigent
defense systems through a State Task Force on Indigent Defense. It is
this system or any future version of it that specifically is intended
to be protected by this language, is it not?
Mr. HATCH. That is absolutely my understanding.
Mr. CORNYN. So under the DeLay proviso, Texas will not have to change
a thing in order to receive grants under this bill--it is automatically
pre-qualified?
Mr. HATCH. Absolutely. In fact, it is my understanding that at least
half a dozen other states also will automatically pre-qualify for
funding under this proviso.
Mr. CORNYN. I thank the Senator. This so-called ``Texas carve-out''
is critical to my support for this bill. Without the carve-out, Texas
and other States like it would not qualify for Federal grant funds,
even though they already have an ``effective system'' for capital
representation. And, without the carve-out, Texas and other States like
it would have no incentive to apply for Federal grant funds because the
Federal grant funds to be received would not exceed the State funds
that would have to be spent to become eligible. On the other hand,
because of the ``carve-out,'' Texas and other States like it can keep
appointment power with locally-elected judges, maintain their own
innovations designed to improve--not make impossible--the effective
representation of capital defendants, and avoid the need for the
creation of a new, needlessly expensive, centralized bureaucracy often
times controlled by those who oppose the death penalty such as was the
case with the former capital defense Resource Centers that were
disbanded by Congress in the 1990's.
Mr. HATCH. I would say that the ``carve-out'' is a compromise that is
consistent with past Federal assistance to the States' criminal justice
systems, and it sets appropriate limits on the level of Federal
involvement in the administration of the death penalty at the state
level.
Mr. CORNYN. Thank you for your work on this, Mr. Hatch, and for
helping to ensure that my home State of Texas qualifies as having an
``effective system for providing competent legal representation'' under
the legislation.
I have two other questions for you. In the new postconviction testing
remedy created by this legislation for Federal prisoners--at what
apparently will be section 3600(g) the bill allows the court
[[Page S10914]]
to order a new trial if a DNA test result, in light of all of the other
evidence, establishes, and I quote, ``by compelling evidence that a new
trial would result in an acquittal.'' As you recall, the standard for
granting new trials in what can sometimes be old cases was much debated
during the Judiciary Committee's consideration of this bill. The
Committee almost voted in favor of changing this standard of proof from
``would result in acquittal'' to ``did not commit the crime,'' and some
discussed a middle option of raising the standard from preponderance of
the evidence to ``clear and convincing evidence.'' Ultimately, we chose
to defer addressing this issue until negotiations on a final package
with the House of Representatives. And in the end, we chose neither of
the standards discussed, but instead opted for elevating the standard
of proof to ``compelling evidence.''
We discussed at the time why ``compelling'' would be the best term of
art for setting a standard for reopening litigation of an issue. In
particular, we looked to two cases that tell us what ``compelling''
means in this context--cases that give us confidence that we have set a
high bar that will not allow the probably guilty to receive a new
trial--and go free if a new trial proves impossible--and also will not
allow defendants to seek new trials on the basis of evidence that they
could have presented all along. As the Chairman of the Committee that
reported this bill and the Senate companion bill's lead sponsor, I
think that you can speak with some authority on this matter, and
clarify for the record the thinking that went into the House and
Senate's selection of the word ``compelling.'' Would you do so?
Mr. HATCH. I would be pleased to do so. In choosing the term
``compelling,'' we relied on previous interpretation of that term in
cases such as United States v. Walser, a 1993 case out of the Eleventh
Circuit. That court analyzed a previous jury's decision--and whether it
disadvantaged the defendant--under a standard of ``compelling
prejudice.'' The court there made clear that it could not find
``compelling prejudice'' if ``under all the circumstances of [the]
particular case it is within the capacity of jurors'' to reach the
proper result--in the case of this bill, to find that the defendant
committed the crime. If, in light of the DNA test, it would not be
within the capacity of jurors to conclude that the defendant is guilty,
a new trial must be granted under 3600(g). But if they could possibly
find guilty, no new trial is allowed. As the Eleventh Circuit
explained, under the ``compelling'' standard, if a decision is ``within
the jury's capacity''--if it is reasonably possible--then ``though the
task be difficult [for the hypothetical jury], there is no compelling
prejudice''--or in our case, no compelling evidence requiring a new
trial.
As the Walser case also explains, you look to the trial transcript to
decide what constitutes ``compelling'' evidence. Obviously, it is the
defendant's burden to produce this evidence by other means if there is
no trial transcript. If the defendant pleaded guilty, and received the
inevitable benefits that come with a plea agreement, he cannot later
turn the lack of a record against the State. It remains the defendant's
burden of both persuasion and production to show that it would not have
been possible for the jury to have concluded that he is guilty. This is
again implicit in the adoption of the term of art ``compelling''--as
Walser elaborates, under the ``compelling'' standard, ``absent evidence
to the contrary, we presume that the jury'' could properly reach the
result that it did.
The other case to which I believe that you referred is the Seventh
Circuit's 1979 decision in NLRB v. Austin Development Center, which
makes clear that previously available evidence is not ``compelling''
evidence. The relevant passage from that case for our purposes was that
only ``[t]he discovery of new evidence is a compelling circumstance
justifying relitigation. The proffer of evidence not presented earlier,
however, will not justify relitigation where it is not shown that the
evidence was unavailable at the time of the prior proceeding.'' In
other words, for our purposes, if the DNA evidence that a prisoner
relies on is something that would have been available to him earlier,
it does not qualify as ``compelling'' evidence justifying a new trial.
If he failed to seek a test when he could have, he cannot later use
that test result to argue for a new trial, once witnesses have died or
become unavailable or had their memories fade, and other evidence has
deteriorated and disappeared. To allow a new trial under these
circumstances would be fundamentally unfair to society and its interest
in the finality of criminal judgments. As some of my colleagues have
noted, Federal Rule of Criminal Procedure specifically limits its
liberal new-trial rule to new evidence discovered within 3 years.
Implicit in that limit is the judgment that the same evidence cannot
carry the same weight in a new trial motion if it is brought at a later
time. By adopting the ``compelling'' standard in this bill, we make
that same judgement, and we protect these same societal interests.
I hope that this conforms to your previous understanding of this
provision and clarifies matters for the record, Senator. We have chosen
a tough standard here--in fact, I believe tougher than all those that
we have discussed previously. This is not a standard that will grant
new trials to people who probably did it--and then allow them to walk
free when prosecutors are unable to try them after the passage of time.
I hope that you can have confidence in that, Senator.
Mr. CORNYN. It does conform to my previous understanding and I do
have confidence in it, Senator. Thank you. I regret taking up the
Senate's time on this busy day, but I do have one other question, and
this pertains to the bill's changes to CODIS and NDIS, the DNA index
systems. It is my understanding that this bill places no limits on what
States can upload into CODIS--that is, into their own databases.
Mr. HATCH. That is correct.
Mr. CORNYN. I also would like to clarify which profiles states are
required to have expunged from NDIS--the national-exchange database--as
a condition of access. The bill allows States to upload anything that
is collected ``under applicable legal authorities''--that is, that
States or local governments collect under their own laws or policies.
An exception is made, however, for two categories--unindicted arrestees
and elimination-only samples. Then later, the bill provides that States
must seek expungement of samples if, and I quote, ``the person has not
been convicted of an offense of the basis of which that analysis was or
could have been included in the index, and all charges for which the
analysis was or could have been included in the index have been
dismissed or resulted in acquittal.''
It is my understanding that, just as what will now be U.S. Code
subsection (d)(2)(A)(i) requires that a person's analysis be expunged
if it was originally uploaded on the basis of a criminal conviction and
that conviction is overturned, this new subsection (ii) will require
the analysis of the acquitted arrestee (or one for whom charges have
been dismissed) to be expunged--but only if the analysis originally was
or could have been included because he was an arrestee.
Mr. HATCH. That is correct. The new limitation that you noted--the
new subsection 14132(d)(2)(A)(ii) corresponds to the limited
``unindicted arrestee'' category in the new (a)(1)(C). It does not
apply to DNA analyses uploaded under other ``applicable legal
authorities.'' Our intent was to provide States with maximum
flexibility in exchanging DNA profile information through NDIS. The
only exception that we made in this bill was for arrestees, who had DNA
samples taken from them involuntarily, and who, because of those
circumstances, we give the right to have those samples withdrawn from
NDIS.
Mr. CORNYN. As you know, I am a strong believer in the power of DNA
to solve crimes. I want to see the United States develop as broad and
as powerful a DNA database as possible. The States have a strong
interest in solving past crimes. I also believe that there is no reason
to exclude DNA from CODIS simply because charges against an arrestee
are dismissed or he is acquitted--fingerprints are kept in such cases,
and there is no reason to treat DNA differently than fingerprints. The
bill bars States from keeping an arrestee's DNA sample if charges are
dropped or he is acquitted. There is no reason to do so. Experience
shows that felony arrestees--even those who are
[[Page S10915]]
not ultimately convicted--are a good population from which to predict
other crimes. Excluding unindicted arrestees will simply prevent States
from solving more crimes. I understand that legislative compromise has
forced us to exclude arrestees--even those indicted--if charges against
them are dropped. I am glad to see that your understanding of the
States's otherwise broad authority conforms to my own understanding--
that outside of the arrestee-sample context, States may still upload
and exchange any DNA collected under State and local laws, policies,
and practices on the NDIS database.
In expressing this view, I would like to emphasize that keeping DNA
samples in CODIS and NDIS does not affect privacy--the analysis used
has no medical predictive value. The analysis of DNA that is kept in
CODIS is what is called ``junk DNA''--it is impossible to determine
anything medically sensitive from this DNA. For example, this DNA will
not allow a tester to determine if the donor is susceptible to
particular diseases. As the Justice Department noted in its official
Views Letter on the predecessor to this bill, and I quote at length:
[T]here [are no] legitimate privacy concerns that require
the retention or expansion of these [H.R. 3214] expungement
provisions. The DNA identification system is already subject
to strict privacy rules, which generally limit the use of DNA
samples and DNA profiles in the system to law enforcement
identification purposes. See 42 U.S.C. 14132(b)-(c).
Moreover, the DNA profiles that are maintained in the
national index relate to 13 DNA sites that do not control any
traits or characteristics of individuals. Hence, the
databased information cannot be used to discern, for example,
anything about an individual's genetic illnesses, disorders,
or dispositions. Rather, by design, the information the
system retains in the databased DNA profiles is the
equivalent of a ``genetic fingerprint'' that uniquely
identifies an individual, but does not disclose other facts
about him.
To those still concerned about some kind of civil liberties violation
inherent in maintaining a DNA database, I would ask, what about
Medicare and Medicaid?--they keep lots of medically sensitive
information. Why should we trust those agencies, but not the FBI?
Misuse of the information in CODIS and NDIS--if even possible--is
prohibited by law. The Medicare and Medicaid system keep vast stores of
medically sensitive information about people. If we are so afraid of
CODIS and NDIS, what about Medicare?
And again--fingerprints are kept for all arrestees--should we now
expunge those too? The FBI maintains a database of fingerprints of
arrestees--without regard to whether the arrestee is later acquitted or
convicted. As Justice notes in its Views Letter on this bill, ``With
respect to the proposed exclusion of DNA profiles of unindicted
arrestees, it should be noted by way of comparison that there is no
Federal policy that bars States from including fingerprints of
arrestees in State and Federal law enforcement databases prior to
indictment.'' Since database DNA is no more sensitive than
fingerprints, and we would expunge DNA under S. 1700, should we also
start throwing out fingerprints?
I would also note that keeping as broad a database as possible will
stop many violent predators much earlier. As the Justice Department
also noted in its Views Letter, ``There is no reason to have a . . .
Federal policy mandating expungement for DNA information. If the person
whose DNA it is does not commit other crimes, then the information
simply remains in a secure database and there is no adverse effect on
his life. But if he commits a murder, rape, or other serious crime, and
DNA matching can identify him as the perpetrator, then it is good that
the information was retained.''
Finally, on this point, I would like to highlight the British
example: The British tried expunging arrestees' DNA and found that they
ended up with embarrassing ``improper'' matches from perpetrators who
weren't supposed to get caught. Now they take DNA from all suspects
(not just arrestees) and have a 2,000,000 profile database. As a
result, the British now get DNA matches from crimes scenes in 40
percent of all cases, and had 58,176 ``cold hits'' from crime scenes in
2001-02.
According to a recent National Institutes of Justice-commissioned
study titled ``The Application of DNA Technology in England and
Wales,'' the U.K. tried expunging DNA profiles for arrestees who are
not ultimately convicted and quickly realized that this was a mistake.
According to the report:
While [a 1994 law] called for the expungement of profiles
of individuals who were not ultimately convicted, periodic
problems with the database administration ultimately led to a
number of cases in which suspects were identified by samples
which were retained in the system but should have been
removed. This lead to a number of court cases and a decision
from the House of Lords addressing the legality of such
convictions.
To address these public policy and legal issues, the House
of Lords passed [a 2001 law] which . . . provides for the
indefinite retention of DNA profiles on the [British
database] even if suspects are not convicted.'' . . . [The
new law] allows for the collection and retention of
biological samples and DNA profiles for anyone who becomes a
suspect during the course of a police investigation.
As a result of these changes, the British now have 2,000,000 DNA
profiles in their national database, they now get matches from 40
percent of all crime scenes with DNA, and they had 58,176 ``cold hits''
from crime scenes in 2001. Why wouldn't we want the same for our
country?
Another NIJ-commission study, produced by Washington State University
and titled the ``National Forensic DNA Study Report,'' notes that ``the
DNA database must have a strong pool of offenders for comparison. . . .
the DNA database is a two-index system--a crime scene sample index, and
an offender index. The effectiveness of either index is necessarily
restricted by any limitation on the other index.'' From the British
experience, we know that a broad database is highly effective. It is
time to replicate that experience here, before more preventable crimes
are committed. I am glad that we have moved far in that direction--
toward the British model--though we still have maintained the
unfortunate anachronism of requiring arrestees' analyses to be expunged
if charges against them are dropped.
Mr. HATCH. I agree with the Senator. I, too, am pleased that, with
the exception of samples collected from arrestees who have charges
dismissed or are acquitted, States and local governments can now upload
and compare analyses collected under applicable legal authorities on
the national database without running afoul of arbitrary expungement
requirements.
Mr. SESSIONS. If the Chairman would permit, I also would like to pose
a few questions, in order to clarify for the record some new language
added to the bill. As the lead sponsor of the Senate legislation that
became this bill, and Chairman of the committee that reported that
bill, I believe that you have unique authority to clarify these
matters.
The modification to the bill that was approved on the Senate floor
today changes who can serve on the capital-counsel entity that selects
and manages counsel for State capital cases in States that do not have
a public defender program. The committee-passed version of the bill
read that, to receive its portion of the funds for State capital
counsel, a State that does not have a public defender system must place
control of the appointment of defense counsel in ``an entity
established by statute or by the highest State court with jurisdiction
in criminal cases, which is composed of individuals with demonstrated
knowledge and expertise in capital representation.'' The new version of
the bill reads that the entity must be ``composed of individuals with
demonstrated knowledge and expertise in capital cases, except for
individuals currently employed as prosecutors.''
Previously, the bill required that only defense--lawyers and maybe
retired prosecutors, or anyone else who ``represented'' parties in
capital cases--be appointed to manage the entity. With today's
amendment, sitting trial and appellate judges can be appointed to
manage the capital-counsel entity--as well as anyone else with
experience with capital cases, including law professors or victims'
advocates--but not current prosecutors. Is that your understanding of
the new bill?
Mr. HATCH. Yes. Anyone with knowledge of capital cases--not just
someone who has litigated capital cases--can now serve on the entity.
Most importantly, this includes members of the bench. It could also
include law professors with knowledge of capital cases, or, as you
mentioned, even advocates for crime victims--if they
[[Page S10916]]
have a demonstrated familiarity with the death penalty. The interests
of victims too often are left out in our justice system--I am pleased
to see that we have now changed this bill to ensure that someone who
has experience in guiding crime victims through a capital trial would
be eligible to sit at the table of this important new capital-counsel
entity. I think that such an entity certainly could benefit from
diverse perspectives on the criminal-justice system.
Mr. SESSIONS. But there is no requirement of such apportionment, is
there? If a State chooses to design its capital counsel entity so that,
for example, it is composed exclusively of trusted members of the
bench, the State could do so, could it not?
Mr. HATCH. Absolutely. This a matter that is properly left up to the
States, and we have so left it.
Mr. SESSIONS. I also do not understand this bill to preclude the
State from allowing the entity to delegate its authority--for example,
the State could have one statewide entity that then delegates its
functions to particular judges in particular counties or districts. Is
my understanding correct?
Mr. HATCH. That understanding is correct. As long as the person to
whom authority is delegated would herself be eligible to serve on the
entity, there is no reason to centralize all functions in one office.
Nor is there any limit or requirement as to how many people can serve
on the capital counsel entity. I know that in some of our discussions
earlier this week, Senator Kyl posed the example of a State that
creates a panel of three judges--trial judges, appellate judges, or
some combination thereof--and has that panel carry out the functions of
the entity. With the modification to the bill made today, this would be
permissible. The State could use 5 judges, or 12, or even 1, though I
can't imagine that the latter would be practical, except in the case
where authority is delegated in local areas.
Mr. SESSIONS. I thank the Senator. I am pleased that your
understanding of these aspects of the bill matches mine. One final
point: I do not understand the bill to limit whom the State may vest
with the authority to appoint the members of the capital-counsel
entity. The entity's members could be appointed by the governor, the
attorney general, the Supreme Court, or any other official designated
by State law or supreme-court rule. Is that correct?
Mr. HATCH. Yes. There is no such restriction.
Mr. SESSIONS. I thank the Chairman.
Mr. LEAHY. Mr. President, I want to thank my friend from Utah. He and
I have worked very hard, and, as he mentioned, we worked closely with
Chairman Sensenbrenner, Mr. Delahunt, and Mr. LaHood in the other body.
Yesterday was an extremely busy day as we met over and over again, well
into last evening and again early this morning, to make it possible.
I think this is also a day to rejoice on the part of courageous
people like Debbie Smith and Kirk Bloodsworth. Debbie waited years to
see this day, but she remained steadfast in her commitment to help
other people. Kirk Bloodsworth faced an ordeal that nobody should have
to face. That is why parts of this bill are named for each of them. I
hope this achievement brings some kind of closure for them.
Mr. President, on February 1, 2000, I came to the floor to call
attention to the growing national crisis in the administration of
capital punishment. I noted that since the reinstatement of capital
punishment in the 1970s, 85 people had been found innocent and released
from death row. And I urged Senators on both sides of the aisle, both
those who supported the death penalty and those who opposed it, to join
in seeking ways to minimize the risk that innocent persons will be put
to death. A few days later, I introduced the Innocence Protection Act
of 2000.
That was more than 4 years ago. During that time, many more innocent
people have been freed from death row--the total is now 117, according
to the Death Penalty Information Center. During that time, the
Republican Governor of Illinois commuted all the death sentences in his
State to life in prison, having lost confidence in a system that
exonerated more death row inmates than it executed. During that time,
we learned about problems at the Houston crime lab so serious that the
city's top police official called for a moratorium on executions of the
inmates who were convicted based on evidence that the lab handled or
analyzed. And during that time, the bipartisan, bicameral coalition
supporting the Innocence Protection Act has continued to grow.
Earlier this week, the House of Representatives passed the Justice
For All Act of 2004, a wide-ranging criminal justice package that
includes the Innocence Protection Act. The House bill also includes the
Debbie Smith Act and the DNA Sexual Assault Justice Act, which together
authorize more than $1 billion over the next 5 years to eliminate the
DNA backlog crisis in the Nation's crime labs and fund other DNA-
related programs. Finally, the House bill includes crime victims'
rights provisions that I sponsored with Senators Feinstein and Kyl, and
which already passed the Senate earlier this year.
Today, at long last, the Senate is poised to pass the Justice For All
Act and to send this important legislation to the President. I hope he
will sign it, despite his Justice Department's continued efforts to
kill this bill. The reforms it enacts will create a fairer system of
justice, where the problems that have sent innocent people to death row
are less likely to occur, where the American people can be more certain
that violent criminals are caught and convicted instead of the innocent
people who have been wrongly put behind bars for their crimes, and
where victims and their families can be more certain of the accuracy,
and finality, of the results.
This bill has been many years in the making, and there are many
people to acknowledge and thank. Let me begin by thanking Kirk
Bloodsworth, Debbie Smith, the Justice Project, and through them all
the crime victims and the victims of a flawed criminal justice system
who have made these changes possible. Without their commitment and
dedication, these straightforward reforms simply would not have
happened. Kirk and Debbie sat patiently, hour after hour, through our
committee's work on this bill, and their presence was strong and
eloquent testimony of the need for this legislation.
Part of this legislation is appropriately named for Kirk Bloodsworth.
Kirk was a young man, just out of the Marines, when he was arrested,
convicted, and sentenced to death for a heinous crime that he did not
commit. DNA evidence ultimately freed him and identified the real
killer. He became the first person in the United States to be freed
from a death row crime through use of DNA evidence. The years he spent
in prison were hard years, and he was treated horribly even after he
was released. He could have become embittered by all he has endured.
But instead, he has chosen to turn his experience into something
constructive, to help others, and one way he has chosen to help is by
being part of the effort to enact this bill. Kirk and his wife, Brenda,
are remarkable people, and I thank them both. I am proud to have come
to know them through our work together on this constructive cause.
I want to commend the chairman of the House Judiciary Committee,
Congressman James Sensenbrenner, who spearheaded this effort in the
House. Chairman Sensenbrenner deserves high praise for steering this
bill through some very rough patches to final passage. We would not be
where we are today without his leadership, tenacity, and steadfast
commitment to getting this done.
I also want to thank my longtime colleagues in this endeavor,
Representative Bill Delahunt of Massachusetts and Representative Ray
LaHood of Illinois. They have worked tirelessly over many years to pass
the Innocence Protection Act, and they deserve much of the credit for
building the strong support for the bill in the House.
I also want to acknowledge Senator Hatch, the chairman of our
Committee, with whom I have debated these issues for years and with
whom I have cosponsored many measures over the last 10 years. Had he
continued to oppose these efforts we could never have been successful.
Over the last couple of weeks he has focused on this bill, and the
Judiciary Committee reported the Advancing Justice Through DNA
Technology Act under his leadership just a few weeks ago. I am grateful
for his help in overcoming objections to
[[Page S10917]]
the bill from his side of the aisle. I know how hard he has worked to
do that.
Thanks, too, to the many Members on both sides of the aisle, in the
Senate and in the House, who have supported this legislation over this
long struggle for reform. Working together, we have finally begun to
address the many problems facing our capital punishment system. Here in
the Senate, Senator Biden has championed additional funding for rape
kit testing. Senators Kennedy, Kohl, Feingold, and Durbin have been
longtime and steadfast proponents of sensible reform. Senators
Feinstein and Specter were strong supporters of the Innocence
Protection Act in the 107th Congress, and have been constructive
partners in the effort in this Congress. Senator Gordon Smith and
Senator Collins were early cosponsors of the Innocence Protection Act
as well. Senator DeWine was a lead sponsor of the Senate DNA bill, and
has made many important contributions. I have spoken to the majority
leader a number of times over the last year having learned of his
interest in these matters and thank him for allowing the Senate to turn
to this important matter even as we approach adjournment of this
session.
Many people have been generous with their time and expertise and
experience over the years. Steve Bright, Bryan Stevenson, George
Kendall, Jim Liebman, Larry Yackle, Scott Wallace, and Kyl O'Dowd have
offered useful and important suggestions on how to improve State
indigent defense systems. Peter Neufeld and Barry Scheck have been
invaluable resources on the intricacies of post-conviction DNA testing.
Ron Weich has offered superb legal counsel to both Republican and
Democratic Senators and their staffs as we have worked on this bill.
Pat Griffin's masterful advice has also been invaluable.
I have already mentioned the Justice Project, a nonprofit
organization dedicated to criminal justice reform, which has been a
staunch supporter of this bill from the beginning. I particularly want
to recognize the contributions of my good friend Bobby Muller, as well
as John Terzano, Cheryl Feeley, Laura Burstein, Cynthia Thomet, and
Peter Loge.
Finally, I want to thank several staff members of the Senate and
House Judiciary Committees who worked tirelessly, some for years, to
accomplish this goal. I commend the Chief Counsel to Chairman
Sensenbrenner, Phil Kiko. He was instrumental in keeping the process
moving over the past year. His hard work, fairness and judgment helped
fulfill his chairman's dogged determination to get this done and make
these needed changes. Also on the chairman's staff, I acknowledge the
efforts of Jay Apperson and Katy Crooks. I want to express my deep
gratitude to Mark Agrast, former counsel for Representative Delahunt,
and his successor, Christine Leonard.
In the Senate, I want to acknowledge several Judiciary Committee
staff members who made immeasurable contributions during this long and
challenging effort. On Chairman Hatch's staff, I want to thank Bruce
Artim, Brett Tolman, and Michael Volkov, a former detailee, for
investing so much of their time and expertise in helping us to arrive
at this moment. My staff and I appreciate the contributions of Neil
MacBride, Jonathan Meyer, and Louisa Terrell on Senator Biden's staff,
David Hantman on Senator Feinstein's staff, and Robert Steinbuch with
Senator DeWine.
On my own staff, I want to express my appreciation to an entire team
of talented and dedicated attorneys and staff who have devoted
themselves so long to this effort and to this commitment to justice.
Julie Katzman, a senior counsel on my staff, has devoted innumerable
hours over the past 4\1/2\ years to accomplishing this goal, and I want
to extend my deeply felt gratitude to her. Tara Magner began as a law
clerk, and later as my counsel has dedicated herself to this effort
with superb results. Beryl Howell, my former general counsel, guided
this effort for years, and Bruce Cohen, my Chief Counsel, guided all of
their efforts. Tim Rieser, Luke Albee, David Carle, and more all
supported and contributed to this extraordinary effort.
I also want personally to thank the Senate Legislative Counsel, in
particular Bill Jensen and Matt McGhie, who labor in obscurity to
produce the legislative text that is being constantly revised to
reflect the understanding reached during this arduous process.
This bill is a rare example of bipartisan cooperation for a good
cause. It reflects many years of work and intense negotiation. No one
who has worked on this bill is entirely satisfied with everything in
it, but that is what the legislative process is all about finding the
substantive, meaningful, middle ground that a broad majority can
support.
The Justice For All Act is the most significant step we have taken in
many years to improve the quality of justice in this country. DNA is
the miracle forensic tool of our lifetimes. It has the power to convict
the guilty and to exonerate the innocent. And as DNA has become more
and more available, it also has opened a window on the flaws of the
death penalty process. This is a bill to put this powerful tool into
greater use in our police departments and our courtrooms. It also takes
a modest step toward addressing one of the most frequent causes of
wrongful convictions in capital cases, the lack of adequate legal
counsel. These reforms, to put it simply, will mean better, faster,
fairer criminal justice.
I thank each one of my colleagues in both bodies who worked hard to
resolve conflicts and congratulate them on this legislative
achievement.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, I compliment the chairman and ranking
member of the committee.
This bill was held up for a long while. Provisions were added to the
bill, which I totally support, that will allow people who were wrongly
accused of having committed crimes to be able to have DNA testing to
prove their innocence.
I don't want anyone to misunderstand why this is so important. All of
you should know so you can tell your constituents. In fact, we set up a
provision in the crime bill whereby when there is a rape or a sexual
assault, we have put a lot of money--you have put a lot of money over
the years into providing for training of police, training forensic
nurses and doctors to be able to take DNA samples.
There are over 800,000 so-called rape case kits sitting on shelves of
the cities where you live and the States you represent. They have never
been tested because of the cost of testing them. The bottom line is
that an estimated 48 percent of outstanding rapes could be solved by
just comparing the database that will come from testing these kits and
the existing database in our State prison systems where DNA is already
on the record. This will liberate thousands of women from the fear and
concern that the man who raped them is out there and will be back
again.
We have done a good thing today. You should let your people back home
know. It is a big deal.
I yield the floor.
____________________