[Congressional Record (Bound Edition), Volume 150 (2004), Part 18]
[Senate]
[Pages 24228-24234]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUSTICE FOR ALL ACT

  Mr. LEAHY. Mr. President, last month, the House and Senate 
overwhelmingly approved H.R. 5107, the Justice for All Act of 2004. 
This important criminal justice package includes the Innocence 
Protection Act, a modest and practical set of reforms aimed at reducing 
the risk of error in capital cases. I first introduced the IPA in 
February 2000, and as time passed, the bipartisan coalition in support 
of this pioneering bill grew. Capping these years of effort, the 
President has now signed the bill into law.
  As enacted, the Innocence Protection Act contains several key 
reforms. First, it ensures access to post-conviction DNA testing for 
those serving time in prison or on death row for crimes they did not 
commit. Second, it establishes a grant program to help defray the costs 
of post-conviction DNA testing. This program is named in honor of Kirk 
Bloodsworth, the first death row inmate exonerated as a result of DNA 
testing. Third, the IPA establishes rules for preserving biological 
evidence secured in the investigation or prosecution of a Federal 
offense. Fourth, it authorizes grants to States to improve the quality 
of legal representation in capital cases. Finally, it substantially 
increases the maximum compensation that may be awarded in Federal cases 
of wrongful conviction.
  Three weeks before the Senate approved H.R. 5107, the Senate 
Judiciary Committee wrapped up weeks of work on the Senate version of 
the bill, S. 1700, the Advancing Justice Through DNA Technology Act of 
2003. The Committee voted to approve S. 1700 by a bipartisan vote of 11 
to 7, but given time constraints and continuing negotiations, the 
Committee did not issue a report. Nor was there a conference report on 
the final legislation, as the Senate's acceptance of H.R. 5107 in 
substantially the form that it passed the House made a House-Senate 
conference unnecessary.
  The upshot of all of this is that there is a substantial gap in the 
legislative history of this landmark legislation. As the principal 
author of the Innocence Protection Act, I offer the following remarks 
to fill that gap and guide those who will be implementing and enforcing 
these important provisions in the future.
  I introduced S. 1700 on October 1, 2003, together with the Chairman 
of the Judiciary Committee, Senator Orrin

[[Page 24229]]

Hatch, and 16 additional co-sponsors. On the same day, the Chairman of 
the House Judiciary Committee, Representative James Sensenbrenner, and 
99 cosponsors introduced an identical measure, H.R. 3214.
  The bill moved swiftly through the House. On October 16, 2003, the 
House Judiciary Committee reported an amended version of the bill by a 
vote of 28 to 1. The few changes to the bill were largely technical, 
clarifying, or stylistic in nature, and are described in the report 
accompanying the bill to the full House. None of these changes affected 
title III of the bill, which contained the Innocence Protection Act. On 
November 5, 2003, the House passed a further amended version of the 
bill by a vote of 357 to 67. This version did include a significant 
change to the counsel provisions in title III, which I will address 
shortly.
  In the Senate, the bill progressed more slowly. The Senate Judiciary 
Committee met in executive session on three occasions to consider S. 
1700. At the first of these meetings, on July 22, 2004, the committee 
adopted an amendment in the nature of a substitute which replaced the 
text of S. 1700 with a modified version of H.R. 3214, as passed by the 
House.
  The committee continued its mark-up of S. 1700 on September 9, 2004. 
The only amendment offered during this session sought to expand on a 
title I provision regarding the national DNA database, and did not 
affect any provision of the Innocence Protection Act. The committee 
rejected this amendment after lengthy debate and then adjourned.
  The committee completed its consideration of S. 1700 on September 21, 
2004. During this session, the committee rejected a total 21 
amendments, 17 of which pertained to the Innocence Protection Act.
  Senator Cornyn offered two of the IPA-related amendments. The first 
proposed to replace the text of S. 1700 with that of S. 1828--a pared 
down version of S. 1700 that stripped out the Innocence Protection Act 
in its entirety. The second Cornyn amendment proposed to strike an 
entire subtitle of S. 1700 dealing with competent counsel and 
substituting a different program that failed to require any 
accountability on the part of States accepting Federal money. The 
committee rejected both of these amendments by votes of 7 to 11.
  Senator Kyl offered nine amendments to the IPA provisions regarding 
post-conviction DNA testing. Six of the amendments sought to restrict 
access to post-conviction DNA testing in the Federal system, as by 
requiring that any motions for such testing be filed within 5 years of 
the bill's enactment. One amendment proposed to raise the standard for 
obtaining a new Federal trial based on exculpatory DNA evidence--
instead of proving that a new trial would probably result in an 
acquittal, a defendant would be put to the virtually impossible burden 
of proving that he did not commit the offense. Two of the amendments 
would have reduced the incentive for States to adopt post-conviction 
DNA testing procedures comparable to the Federal procedures. The 
committee rejected all nine amendments by a vote of 7 to 10 or 7 to 11.
  The other six IPA amendments, also offered by Senator Kyl, pertained 
to the IPA's requirement that Federal authorities preserve any 
biological evidence secured in the investigation or prosecution of a 
Federal offense for as long as a defendant remained incarcerated for 
that offense, subject to a number of practical and straightforward 
exceptions. All six amendments would have relaxed this requirement to 
some degree, allowing for the premature destruction of biological 
evidence that could clear the innocent and identify the guilty. The 
committee rejected all six amendments, most by a vote of 7 to 11.
  Having voted down all amendments to the substitute amendment, the 
committee approved the bill by a final vote of 11 to 7. Those voting in 
the affirmative were myself, Chairman Hatch, and Senators Specter, 
DeWine, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin. 
Those voting in the negative were Senators Grassley, Kyl, Sessions, 
Graham, Craig, Chambliss, and Cornyn.
  The committee vote on September 21, 2004, was the last action taken 
on S. 1700. As I discussed in a floor statement on October 7, 2004, no 
sooner had the bill been reported favorably to the full Senate than it 
was blocked by the same Senators who had held it up in Committee, 
buttressed by opposition from President Bush and Attorney General John 
Ashcroft. As a result, the full Senate was never afforded an 
opportunity to consider S. 1700 as a free-standing bill.
  With time running out before the congressional adjournment, the House 
acted again. On September 22, 2004, the House Judiciary Committee 
approved the text of S. 1700 as part of H.R. 5107, a larger criminal 
justice package known as the Justice For All Act of 2004. There 
followed several weeks of intense negotiations involving House and 
Senate sponsors of the legislation, the handful of hold-out Senators, 
and the Department of Justice. While no agreement was reached, and the 
Department continued to oppose the bill, the House made a number of 
changes to the legislation to address concerns that had been raised. On 
October 6, 2004, the House passed a modified version of H.R. 5107 by a 
vote of 393 to 14 and sent it to the Senate. The Senate passed the bill 
three days later by voice vote, the House made a number of enrollment 
corrections the same day, and on October 30, 2004, President Bush 
signed the bill into law.
  The Justice For All Act of 2004 enhances protections for victims of 
Federal crimes, increases Federal resources available to State and 
local governments to combat crimes with DNA technology, and provides 
safeguards to prevent wrongful convictions and executions.
  Title I of the bill is the Scott Campbell, Stephanie Roper, Wendy 
Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act. The 
provisions of this title establish enhanced and enforceable rights for 
crime victims in the Federal criminal justice system, and authorize 
grants to help States implement and enforce their own victims' rights 
laws.
  Titles II and III of the bill establish the Debbie Smith DNA Backlog 
Grant Program, which authorizes $755 million over five years to address 
the DNA backlog crisis in the nation's crime labs, and also creates 
other new grant programs to reduce forensic science backlogs, train 
criminal justice and medical personnel in the use of DNA evidence, and 
promote the use of DNA technology to identify missing persons.
  Title IV of the bill, the Innocence Protection Act, increases access 
to post-conviction DNA testing that may prove innocence; establishes 
the Kirk Bloodsworth program to help defray the cost of post-conviction 
DNA testing; sets rules for preserving biological evidence secured in 
Federal criminal cases; authorizes grants to improve the quality of 
legal representation in State capital cases; and increases compensation 
in Federal cases of wrongful conviction.
  The Innocence Protection Act reflects years of work and intense 
negotiation. I will now discuss its key provisions in greater detail.
  Subtitle A of title IV enacts a new chapter in the Federal Criminal 
Code dealing with DNA testing. In little over a decade, some 153 people 
across the country have been exonerated by this remarkable technology. 
That number includes more than a dozen individuals who had been 
sentenced to death, some of whom came within days of being executed.
  Post-conviction DNA testing does not merely exonerate the innocent it 
can also solve crimes and lead to the incarceration of very dangerous 
criminals. In case after case, DNA testing that exculpates a wrongfully 
convicted individual also inculpates the real criminal. Just this year, 
for example, the exoneration of Arthur Lee Whitfield in Virginia led to 
the identification of another inmate, already serving a life sentence, 
as the true perpetrator of two rapes for which Whitfield had served 22 
years in prison. Last year, DNA evidence in the case of Kirk 
Bloodsworth was matched to another man, a convicted sex offender

[[Page 24230]]

who has now pleaded guilty to the horrendous rape-murder that sent Mr. 
Bloodsworth to Maryland's death row.
  There are still numerous prisoners throughout the country whose 
trials preceded modern DNA testing, or who did not receive pretrial 
testing for other reasons. If history is any guide, some of these 
individuals are innocent of any crime.
  The new chapter 228A of title 18 is designed to ensure that Federal 
prisoners with real claims of innocence can get DNA testing of evidence 
that could support such claims. It does this by establishing rules for 
when a court shall order post-conviction DNA testing--to be codified at 
18 U.S.C. Sec.  3600--and rules for when the government may dispose of 
biological evidence--to be codified at 18 U.S.C. Sec.  3600A.
  Under section 3600, a court shall order DNA testing if it may produce 
new material evidence that would raise a reasonable probability that 
the applicant did not commit the offense. This standard was the subject 
of intense negotiations, as members recognized that setting the 
standard too low could invite frivolous applications, while setting it 
too high could defeat the purpose of the legislation and result in 
grave injustice. I argued that in balancing these concerns, Congress 
should be guided by the principle that the criminal justice system 
should err on the side of permitting testing, in light of the low cost 
of DNA testing and the high cost of keeping the wrong person locked up. 
I am pleased that this view ultimately prevailed.
  During the final round of negotiations on H.R. 5107--after the House 
Judiciary Committee reported the bill, and before final passage by the 
full House--the standard for ordering a DNA test was modified in two 
respects. First, as introduced in both the House and the Senate, 
section 3600(a)(8) appeared to impose on applicants the virtually 
impossible burden of showing that a DNA test ``would'' produce new 
material evidence of innocence. Under section 3600(a)(8) as enacted, 
applicants need only show that a test ``may'' produce such evidence.
  Second, the same provision was stripped of unnecessary language to 
the effect that courts must ``assume the DNA test result excludes the 
applicant'' when considering whether DNA testing would raise a 
reasonable probability that the applicant did not commit the offense. 
Such an assumption is already implicit, since a court could not 
reasonably assess the probability that a convicted offender was wrongly 
convicted without weighing some new evidence of innocence, such as a 
DNA exclusion. With or without the assumption language, the question 
for a court boils down to this: Would a DNA exclusion make it more 
likely than not that the applicant was innocent? If so, the court 
should order DNA testing, provided that the various technical 
requirements set forth in section 3600(a) are met.
  These requirements are simply stated. First, the applicant must 
assert his or her innocence under penalty of perjury. Second, the 
evidence to be tested must have been secured in relation to the 
investigation or prosecution of the offense. Third, the evidence must 
not have been previously subjected to DNA testing or, if it was, the 
applicant must be requesting DNA testing using a new method or 
technology that is substantially more probative than the prior DNA 
testing. If the evidence was not previously tested, the applicant must 
also show that he did not waive the right to request DNA testing of 
that evidence in a court proceeding after the date of enactment of the 
IPA, or knowingly fail to request DNA testing of that evidence in a 
prior motion for post-conviction DNA testing. A waiver of the right to 
request DNA testing must be knowing and voluntary, and will ideally be 
made on the record and inquired into by the court before it is 
accepted.
  Fourth, the evidence to be tested must be in the possession of the 
Government, subject to a chain of custody, and retained under 
conditions sufficient to ensure that it was not substituted, 
contaminated, tampered with, replaced, or altered in any material 
respect. Fifth, the proposed DNA testing must be reasonable in scope, 
use scientifically sound methods, and be consistent with accepted 
forensic practices. Sixth, the applicant must identify a theory of 
defense that is not inconsistent with an affirmative defense presented 
at trial, and that would establish the applicant's innocence. Seventh, 
the applicant must certify that he will provide a DNA sample for 
purposes of comparison.
  Eighth, if the applicant was convicted following a trial, the 
identity of the perpetrator must have been at issue in the trial. If 
the applicant was convicted following a guilty plea, this requirement 
does not apply. Congress rightly rejected the Justice Department's 
position that inmates who pleaded guilty should be ineligible for DNA 
testing in light of the many documented cases in which defendants 
pleaded guilty to crimes they did not commit. Indeed, the Senate 
Judiciary Committee report in the 107th Congress on the Innocence 
Protection Act of 2002 describes four cases in which defendants pleaded 
guilty to crimes they did not commit and were later exonerated by DNA 
tests.
  The final requirement established by section 3600 is that motions for 
post-conviction DNA testing be made ``in a timely fashion.'' Motions 
are entitled to a rebuttable presumption of timeliness if filed within 
five years of enactment of the IPA, or three years after the 
applicant's conviction, whichever is later. Thereafter, it is presumed 
that a motion is untimely, except upon good cause shown. As I explained 
in an earlier floor statement, the Justice Department has complained 
that the ``good cause'' exception is so broad you could drive a truck 
through it, and its stubborn opposition to the IPA turned in large part 
on the inclusion of this language. But while I agree that the language 
is broad, it is intentionally so; I would not agree to a presumption of 
untimeliness that could not be rebutted in most cases. At the same 
time, this provision should allow courts to deal summarily with the 
Department's hypothetical bogeyman--the guilty prisoner who ``games the 
system'' by waiting until the witnesses against him are dead and 
retrial is no longer possible, and only then seeking DNA testing.
  As may be apparent from the awkwardness of the legislative language, 
the rebuttable presumption language in section 3600 was a late and 
hastily-drafted addition to the legislation. It replaced a relatively 
generic requirement that motions be filed for the purpose of 
demonstrating innocence, and not to delay the execution of the sentence 
of the administration of justice. The intention was to provide courts 
with more specific guidance on how to weed out frivolous motions.
  Significantly, this provision is far from the rigid three-year time 
limit urged by the Justice Department. In rejecting a time limit, 
Congress recognized that the need for a DNA testing law is not 
temporary. That need will likely diminish over time as pre-trial DNA 
testing becomes more prevalent, but there will always be cases that 
fall through the cracks due to a defense lawyer's incompetence, a 
defendant's mental illness or mental retardation, or other reasons that 
we in Congress cannot and should not attempt to anticipate. Many of the 
individuals who have been exonerated by post-conviction DNA testing did 
not win freedom until many years after they were convicted and could 
still be in prison, or executed, if an arbitrary limitations period had 
been applied to their requests for DNA testing.
  In addition to the requirements I have just described, section 3600 
provides additional disincentives to filing false claims or trying to 
``game the system''. Test results must be disclosed simultaneously to 
the applicant and the government. DNA submitted by the applicant will 
be run through the national DNA database, which could conceivably 
produce a match linking the applicant to an unsolved crime. Penalties 
are established in the event that testing inculpates the applicant. 
Further, because an applicant's assertion of innocence must be made 
under penalty of perjury, an applicant may be subject to prosecution 
for perjury, as well as for making a false statement, if

[[Page 24231]]

his assertion is later disproved. If convicted, the applicant is 
subject to a 3-year prison sentence, which shall run consecutively to 
any other term of imprisonment he is serving.
  Section 3600 also establishes procedures to be followed when DNA 
testing exculpates the applicant. A court shall grant relief if the 
test results, when considered with all the other evidence in the case, 
establish by compelling evidence that a new trial would result in an 
acquittal. The ``compelling evidence'' standard was another late 
addition; earlier versions of the IPA set the applicant's burden at ``a 
preponderance of the evidence.'' The point of the change, which I 
proposed, was to require courts to focus on the quality of the evidence 
supporting an applicant's new trial motion rather than trying to 
calculate the odds of a different verdict.
  In setting the new trial standard in section 3600, Congress rejected 
the Justice Department's proposal, under which an applicant would have 
to prove, by clear and convincing evidence, that he did not commit the 
crime. That standard is substantially more demanding than the standard 
established for second or successive motions filed under 28 U.S.C. 
Sec.  2255 based on newly discovered evidence--a remedy that is already 
open to Federal inmates with new evidence of a DNA exclusion. It would 
have made no sense for Congress to establish a more demanding new trial 
standard for cases involving a new DNA test result than for other cases 
involving newly discovered evidence. To the contrary, because DNA 
testing conducted years and even decades after a conviction can provide 
a more reliable basis for establishing a correct verdict than any 
evidence proffered at the original trial, the standard should be and 
has appropriately been set a notch lower. This is consistent with 
Congress' decision, in section 204 of the Justice For All Act, to toll 
the statute of limitations in cases involving DNA evidence; both 
provisions recognize the unique ability of DNA testing to produce 
scientifically precise and highly probative evidence long after a crime 
has been committed.
  Let me turn now to the new evidence-retention rules enacted by the 
IPA. As a general matter, section 3600A requires the preservation of 
all biological evidence secured in relation to a Federal criminal case 
for as long as any person remains incarcerated in connection with that 
case. But biological evidence may be destroyed--assuming that no other 
law requires its preservation--under certain limited circumstances, 
including, first, if a previous motion by the defendant for testing 
pursuant to section 3600 was denied and no appeal is pending; second, 
if the defendant knowingly and voluntarily waived the right to request 
DNA testing of the evidence in a court proceeding conducted after the 
date of enactment of the IPA; and third, if the evidence has already 
been tested pursuant to section 3600 and the results included the 
defendant as the source. If the evidence is unusually large or bulky, 
or if it must be returned to its rightful owner, the government may 
remove and retain representative portions of the evidence sufficient to 
preserve the defendant's rights under section 3600.
  Biological evidence may also be destroyed if the government notifies 
everyone who remains incarcerated in the case that the evidence may be 
destroyed and no one requests DNA testing within 180 days of receiving 
such notice. It bears emphasis that this is a limited exception to the 
general rule favoring preservation of biological evidence. It is not 
anticipated, nor is it anyone's intention, that prosecutors simply hand 
out standardized notices pursuant to section 3600A every time a 
defendant is convicted. Indeed, one of the final changes made to H.R. 
5107 clarified that the defendant's conviction must be final, and the 
defendant must have exhausted all opportunities for direct review of 
the conviction, before a section 3600A notice may be served. Even then, 
the better practice would be for the government to wait a number of 
years, until the destruction of the evidence is truly imminent, before 
providing notice.
  In this regard, it should be noted that section 3600A does not 
preempt or supersede any law that may require evidence, including 
biological evidence, to be preserved. Thus, if another law requires 
evidence to be retained for 10 years after conviction, the government 
should wait at least that long before notifying the defendant that the 
evidence may be destroyed.
  If the notice exception becomes the rule--if notices are routinely 
served as soon as convictions become final, and evidence is routinely 
destroyed six months later--Congress will need to revisit section 
3600A. Having rejected any time limit on motions for post-conviction 
DNA testing, Congress should not allow the government to impose a de 
facto time limit of six months by rushing to destroy any evidence that 
could be the subject of a motion for post-conviction DNA testing. In 
implementing section 3600A, the government should never lose sight of 
its intended purpose, which is to ensure that biological evidence is 
available to permit future DNA testing that may help clear the innocent 
and catch the guilty.
  The provisions I have discussed to this point will be codified in the 
Federal Criminal Code and will have direct application to Federal cases 
and Federal defendants only. Earlier versions of the IPA recognized a 
constitutional right of State prisoners to access biological evidence 
held by the State for the purpose of DNA testing; as enacted, however, 
the IPA contains no such provision. This is regrettable. As Fourth 
Circuit Judge Michael Luttig concluded in a 2002 opinion, ``A right of 
access to evidence for tests which could prove beyond any doubt that 
the individual in fact did not commit the crime, is constitutionally 
required as a matter of basic fairness.'' An inmate's interest in 
pursuing his freedom--and possibly saving his life--is surely 
sufficient to outweigh any governmental interest in withholding access 
to potentially exculpatory evidence.
  While taking no position on the constitutional question addressed by 
Judge Luttig, the IPA does encourage States that have not already done 
so to enact provisions similar to sections 3600 and 3600A. It does this 
in section 413 of subtitle A of title IV, by reserving the total amount 
of funds appropriated to carry out certain grant programs authorized in 
the Act for States that have adopted reasonable procedures for 
providing post-conviction DNA testing and preserving biological 
evidence.
  It is never easy to attach strings to money that our States so 
desperately need, but it is necessary in this instance. Ten years after 
New York passed the nation's first post-conviction DNA testing statute, 
many States have yet to establish a right to post-conviction DNA 
testing, and others have erected unjustifiably high procedural hurdles 
to testing. For example, some States provide for post-conviction DNA 
testing only if the inmate is under sentence of death, and some rely on 
arbitrary and unnecessary time limits. To quote New York Attorney 
General Eliot Spitzer, who testified in support of the Innocence 
Protection Act in June 2000, ``DNA testing is too important to allow 
some States to offer no remedy to those incarcerated who may be 
innocent of the crimes for which they were convicted.''
  The IPA affords States that accept the conditioned Federal funding 
some flexibility in crafting their DNA laws. State procedures for 
providing post-conviction DNA testing and preserving biological 
evidence need only be ``comparable,'' not identical, to the Federal 
procedures in sections 3600 and 3600A. This means that the procedures 
adopted by a State must, at a minimum, incorporate the core elements of 
the Federal procedures. For example, a State post-conviction DNA 
statute that covers only death row inmates and not inmates serving 
terms of incarceration would not be comparable to the Federal 
procedures. Similarly, a State statute that included a time limit or 
any other provision that would systematically deny testing to whole 
categories of prisoners who would receive testing under the Federal 
procedures would not be comparable to those procedures and, so, would 
not satisfy the Act.

[[Page 24232]]

  When I first introduced the Innocence Protection Act in February 
2000, only a handful of States had enacted post-conviction DNA testing 
laws. Today, a sizeable majority of States have enacted such laws, 
although as I already noted, the scope of these laws varies 
considerably. States that have already established a meaningful right 
to post-conviction DNA testing and reasonable rules for preserving 
biological evidence should not be required to change their laws as a 
condition of receiving Federal funds, and the IPA does not require 
this. Section 413 includes a ``grandfather clause'' that should cover 
many of the States that enacted DNA laws before enactment of the IPA, 
making them immediately eligible for the conditioned grant money. Not 
every State DNA law meets the terms of the grandfather clause, however, 
and the Justice Department should take great care in scrutinizing the 
laws of any State claiming its protection.
  Post-conviction DNA testing is an essential safeguard that can save 
innocent lives when the trial process has failed to uncover the truth. 
But it would be neither just nor sensible to enact a law that merely 
expanded access to DNA testing. It would not be just because innocent 
people should not have to wait for years after trial to be exonerated 
and freed. It would not be sensible because society should not have to 
wait for years to know the truth. When innocent people are convicted 
and the guilty are permitted to walk free, any meaningful reform effort 
must consider the root causes of these wrongful convictions and take 
steps to address them. That is why subtitle B of title IV addresses 
what all the statistics and evidence show is the single most frequent 
cause of wrongful convictions inadequate defense representation at 
trial.
  Subtitle B was enacted against the backdrop of a shameful record of 
failure by many States to provide competent lawyers to indigent 
defendants facing the death penalty. Testimony in both the Senate and 
House Judiciary Committees revealed that of the 38 States that 
authorize capital punishment, very few have established effective 
statewide systems for identifying, appointing and compensating 
competent lawyers in capital cases.
  Too often individuals facing the ultimate punishment are represented 
by lawyers who are drunk, sleeping, soon-to-be disbarred or just plain 
ineffective. Even the best lawyers in these systems are hampered by 
inadequate compensation and insufficient resources to investigate and 
develop a meaningful defense.
  The Congress acted to remedy several major problems with the capital 
counsel appointment process. First, in many States the appointment of 
indigent counsel in criminal cases is a county-by-county 
responsibility. Unless a State legislature or court system adopts 
standards, each county is left to decide who is competent to represent 
criminal defendants and how much they should be paid. In smaller and 
less affluent counties where there is not a professional public 
defender system, the compensation rate for this service can be 
shockingly low and the quality of lawyers abysmal. This problem 
afflicts the indigent defense system in general, but is more acute in 
capital cases which are more complex and time consuming, and where the 
stakes are higher.
  Second, in addition to the fiscal constraints on individual counties 
there are political pressures that make it difficult for well-meaning 
administrators to pay appointed lawyers a reasonable rate for their 
services. Criminal defendants are highly unpopular recipients of 
government largess, and accused murderers even less so. The Sixth 
Amendment to the U.S. Constitution requires that defendants be afforded 
effective representation at State expense, but efforts to invoke the 
Sixth Amendment to generate systemic change in State indigent defense 
systems have been largely unavailing.
  A third major problem is that in almost all States, the appointment 
of capital defense lawyers is made by the trial judge rather than by an 
independent appointing authority. State trial judges, who are often 
elected officeholders, find themselves under political and 
administrative pressure to appoint lawyers unlikely to mount a 
vigorous, time-consuming or expensive defense.
  Several States--including North Carolina and New York have--acted in 
recent years to establish statewide systems to deliver effective 
representation. North Carolina, for example, has established a 
centralized, independent appointing authority known as the Indigent 
Defense Services Commission. The Commission appoints a statewide 
Capital Defender who is accountable to the Commission but not 
accountable to the judiciary or to the political branches of 
government. The Capital Defender compiles and maintains a roster of 
private lawyers and public defenders who are qualified to try capital 
cases. The Capital Defender appoints two defense lawyers for each 
capital defendant. He may appoint himself and his staff, or he may 
appoint lawyers from the roster. The trial judge has no role whatsoever 
in the appointment of counsel. Congress viewed the North Carolina 
system as a national model for establishing an effective capital 
counsel system.
  Section 421 of the new law authorizes a grant program, to be 
administered by the Attorney General, to improve the quality of legal 
representation provided to indigent defendants in State capital cases. 
Grants shall be used to establish, implement, or improve an effective 
system for providing competent legal representation in capital cases, 
but may not be used to fund representation in specific cases.
  In earlier versions of the Innocence Protection Act, I had proposed 
to condition certain State defenses in habeas corpus actions on the 
State's establishment of an effective system for appointing capital 
counsel. In this manner, all capital States would have a strong 
incentive to improve their appointment systems, not merely those States 
that choose to apply for Federal funds. While this more ambitious 
proposal was not adopted, it is my intention that the grant program be 
administered in a manner that ensures meaningful improvements in this 
vital State function. Congress did not create this program to support 
existing death penalty systems in the States but rather to leverage 
needed improvements.
  Under the new law, an effective system is one in which a public 
defender program or other entity establishes qualifications for 
attorneys who may be appointed to represent indigents in capital cases; 
establishes and maintains a roster of qualified attorneys and assigns 
attorneys from the roster; trains and monitors the performance of such 
attorneys; and ensures funding for the full cost of competent legal 
representation by the defense team and any outside experts.
  The Act's definition of an effective system evolved from standards 
developed by the American Bar Association and adopted by other 
standard-setting bodies and commissions, such as the Constitution 
Project's blue-ribbon commission on capital punishment. Ideally, the 
entity that identifies and appoints defense lawyers will be independent 
of the political branches of State government, as are the authorities 
in North Carolina and New York. For example, the Act explicitly states 
that sitting prosecutors may not serve on the appointing entity. The 
underlying purpose of the scheme is to help insulate the appointment 
process from the political pressures that make it difficult for 
individual trial judges to appoint competent lawyers in individual 
cases.
  In the course of negotiations to pass the bill in the House last 
year, I and other sponsors of the bill reluctantly agreed to accept an 
amendment, now section 421(e)(1)(C) of the Act, that has come to be 
described as ``the Texas carve-out.'' Under this provision, a State may 
qualify for a capital representation improvement grant if it has 
adopted and substantially complies with a State statutory procedure 
enacted before this Act under which the trial judge is required to 
appoint qualified attorneys from a roster maintained by a State or 
regional selection committee or similar entity.
  In fact, the ``Texas carve-out'' is not a carve-out at all. It simply 
acknowledges that Texas is in the process of

[[Page 24233]]

implementing a recent statewide reform law, the Fair Defense Act of 
2001, and should be permitted to continue that process. If Texas is 
awarded a Federal grant it will still be required to improve its 
capital counsel appointment system, but Federal authorities will 
measure those improvements against standards in the 2001 Texas law.
  Texas is not yet living up to the promise of the Fair Defense Act. A 
November 2003 report by the Equal Justice Center and the Texas Defender 
Service demonstrates that many Texas counties have failed to establish 
effective roster systems for identifying qualified lawyers and fail to 
provide reasonable compensation to capital counsel. If Texas accepts 
Federal funds under this new program, it will be required to live up to 
its own State standards, including the all-important requirement of 
reasonable compensation. The TDS report should be a guidepost for 
needed improvements.
  It is conceivable that other States will qualify for consideration 
under section 421(e)(1)(C) but the provision should be strictly 
interpreted by grant administrators. The State law must have been 
enacted prior to enactment of the Innocence Protection Act, the trial 
judge must be required to make appointments from a roster of qualified 
lawyers, and the roster must be maintained by the State, a regional 
selection committee or a similar agency that is independent of the 
trial court. Congress was aware that the trial courts in many States 
maintain rosters from which lawyers may be chosen, but that is not the 
sort of rigorous quality control mechanism that section 421(e)(1)(C) 
requires.
  States that establish an effective system under section 421(e)(1)(A) 
or (B) must compensate lawyers in accordance with section 
421(e)(2)(F)(ii). That provision requires, among other things, that 
public defenders be compensated according to a salary scale 
commensurate with the salary scale of the prosecutor's office in the 
jurisdiction. This requirement parallels the requirement that capital 
representation improvement grants are to be divided evenly between the 
defense and prosecution functions. In enacting the IPA, Congress 
generally approved of the concept of resource parity between the 
defense and the prosecution, a concept that is essential to ensuring 
fair trials in our adversarial system of justice.
  Another important requirement concerning attorney compensation 
appears in section 421(e)(2)(F)(ii)(II) which states that appointed 
attorneys be compensated ``for actual time and service, computed on an 
hourly basis and at a reasonable hourly rate in light of the 
qualifications and experience of the attorney and the local market for 
legal representation in cases reflecting the complexity and 
responsibility of capital cases.'' Again, this concept is drawn from 
the American Bar Association standards, which should be consulted by 
grant administrators in implementing the program. This new statutory 
requirement would clearly preclude a participating State from 
compensating attorneys under a flat fee or capped fee system, because 
such a system would not compensate the attorney for ``actual time and 
services, computed on an hourly basis.''
  Moreover, the term ``reasonable hourly rate'' must be taken seriously 
by those who administer the new program. For example, there is general 
agreement among experts that the Federal compensation rate of $125 per 
hour is reasonable in most parts of the country.
  In my view, a State rate comparable to the Federal rate should be 
considered ``reasonable,'' taking into account differences in the cost 
of living in various parts of the country. Capital cases are among the 
most complex, high stakes cases tried in any courthouse, and the 
lawyers who represent defendants in such cases should be paid at a rate 
comparable to that earned by other lawyers engaged in similarly 
important litigation.
  One recent modification of section 421 would make clear that sitting 
prosecutors may not be members of the appointing authority established 
under section 421(e)(1)(B), although others with expertise in capital 
cases may participate. I agree that under this new language members of 
the judiciary may be members of the authority. On the other hand it 
would be impermissible for the appointing authority to delegate its 
authority to trial judges or to a group of trial judges. Such a 
delegation would defeat one of the central goals of the Act, which was 
to insulate the appointment power from the political and administrative 
pressures on trial judges.
  As part of the same program established in section 421, section 422 
authorizes grants to improve the representation of the public in State 
capital cases. Grants shall be used to design and implement training 
programs for capital prosecutors; develop, implement, and enforce 
appropriate standards and qualifications for such prosecutors and 
assess their performance; establish programs under which prosecutors 
conduct a systematic review of cases in which a defendant is sentenced 
to death in order to identify cases in which post-conviction DNA 
testing is appropriate; and assist the families of murder victims.
  A key limitation on these prosecution grants is that they may not be 
used ``to fund, directly or indirectly, the prosecution of specific 
capital cases.'' Consistent with the IPA's overarching goal of ensuring 
that capital punishment is carried out in a fair and reliable manner, 
these grants should be used to establish and improve systems within 
prosecutor offices to minimize errors and abuses that may lead to 
wrongful convictions. They may not be used to hire additional capital 
prosecutors.
  Section 423 establishes requirements for States applying for grants 
under this subtitle, including a long-term strategy and detailed 
implementation plan that reflects consultation with the judiciary, the 
organized bar, and State and local prosecutor and defender 
organizations, and establishes as a priority improvement in the quality 
of trial-level representation of indigents charged with capital crimes 
and trial-level prosecution of capital crimes in order to enhance the 
reliability of capital trial verdicts.
  In the case of a State that relies on a statutory procedure described 
in section 421(e)(1)(C), the Texas-related provision I have previously 
discussed, a State officer must certify that the State is in compliance 
with State law. But such a certification should not be considered 
dispositive--Federal grant administrators must still assess the State's 
compliance with State law. Thus, the certification does not obviate the 
need for the Inspector General to carry out an independent assessment 
of the State's compliance under section 425(a)(3).
  Section 424 requires States receiving funds under this subtitle to 
submit an annual report to the Attorney General identifying the 
activities carried out with the funds and explaining how each activity 
complies with the terms and conditions of the grant.
  Section 425 directs the Inspector General of the Department of 
Justice to submit periodic reports to the Attorney General evaluating 
the compliance of each State receiving funds under this subtitle with 
the terms and conditions of the grant. In conducting such evaluations, 
the Inspector General shall give priority to States at the highest risk 
of noncompliance. If, after receiving a report from the Inspector 
General, the Attorney General finds that a State is not in compliance, 
the Attorney General shall take a series of steps to bring the State 
into compliance and report to Congress on the results.
  Section 425(a)(4) provides an opportunity for public comment during 
the Inspector General's review. This provision is not intended to 
preclude a member of the public from seeking any other available legal 
remedy after the Attorney General has made a final determination of 
whether a State is in compliance with the requirements of the statute.
  A special rule is provided in section 425(f) to ensure that any State 
relying on the Texas-related provision in section 421 is, in fact, 
complying with its own State law. Under the special rule, if the 
Inspector General determines

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that the State is not in compliance, Federal funds that would have 
otherwise been available to the prosecution function shall be used 
solely for the defense function. A separate determination by the 
Attorney General is not required to trigger this special rule.
  Section 426 authorizes $75 million a year for 5years to carry out 
this subtitle. States receiving grants under this subtitle shall 
allocate the funds equally between the programs established in sections 
421 and 422, subject to the special rule in section 425(f) that I just 
described.
  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. 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. Once again, I thank my colleagues in both bodies who 
worked hard to resolve conflicts and congratulate them on this 
legislative achievement.

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