[Congressional Record (Bound Edition), Volume 150 (2004), Part 17]
[Senate]
[Pages 22951-22959]
[From the U.S. 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

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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 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

[[Page 22953]]

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 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

[[Page 22954]]

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 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

[[Page 22955]]

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 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

[[Page 22956]]

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 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

[[Page 22957]]

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 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.

[[Page 22958]]

  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 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.

[[Page 22959]]

  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.

                          ____________________