THE INNOCENCE PROTECTION ACT OF 2000

Mr. LEAHY. Mr. President, a few months ago, I came to this floor to draw attention to a growing national crisis in the administration of capital punishment and to suggest some solutions. You will recall some of the shocking facts I described:

For every 7 people executed, 1 death row inmate is shown some time after conviction to be innocent of the crime.

Many of those exonerated have come within hours of being executed, and many have spent a decade or more in jail before they were given a fair opportunity to establish their innocence .

Capital defendants are frequently represented by lawyers who lack the funds or the competence to do the job, or who have been disbarred or suspended for misconduct, and, from time to time, by lawyers who sleep through the trial, but the courts turn a blind eye.

Inexpensive and practically foolproof means of proving innocence are often denied to defendants.

The saddest fact of all, to me, is that the society facing this crisis is not a medieval one; it is America, today, in the 21st Century. As the Governor of Illinois told us when he placed a moratorium on the death penalty in his State earlier this year, something urgently needs to be done to remedy this situation. That is why I have been talking with Senators on both sides of the aisle and all sides of the capital punishment debate. That is why I have been searching for ways to reduce the risk of mistaken executions.

That is why I am so pleased that today, with my good friend, the junior Senator from Oregon (Senator Gordon Smith), we are introducing the bipartisan Innocence Protection Act of 2000. This bill is a carefully crafted package of criminal justice reforms designed to protect the innocent and to ensure that if the death penalty is imposed, it is the result of informed and reasoned deliberation, not politics, luck, bias or guesswork.

Every American child is taught that justice is blind. It is important to remember what justice is supposed to be blind to. Justice should never be blind to the truth, it should never be blind to the evidence, and it should never be blind to the teachings of modern science. What justice should be blind to is ideology, politics, race and money.

Too often in this chamber, we find ourselves dividing along party or ideological lines. The bill that Senator Smith and I are introducing today is not about that, and it is not about whether in the abstract, you favor or disfavor the death penalty. It is about what kind of society we want America to be in the 21st Century.

I am optimistic about America's future. I have become all the more optimistic in the past few months as I have seen an outpouring of support across the political spectrum and across the country for common-sense measures to reduce the risk of executing the innocent.

Today, Senator Smith and I are joined by Senators from both sides of the aisle, by some who support capital punishment and by others who oppose it. On the Republican side, I want to thank my friend Senator Susan Collins of Maine and my fellow Vermonter, Senator Jim Jeffords. On the Democratic side, Senators Levin, Feingold, Moynihan, Akaka, Kerrey, and Wellstone. I also want to thank our House sponsors William Delahunt and Ray LaHood, along with their 39 cosponsors, both Democratic and Republican. Here on Capitol Hill it is our job to represent Americans. The scores of legislators who have sponsored this legislation clearly do represent Americans, both in their diversity and in their readiness to work together for common-sense solutions.

The outpouring of bipartisan support we have seen in Congress reflects an emerging public consensus. Opinion polls show Americans divided on the death penalty in the abstract. But they show overwhelmingly that Americans will not tolerate the execution of innocent people, and that Americans expect their justice system to provide everyone with a fair trial and a competent lawyer. A recent Gallup Poll found that 92 percent of Americans believe that people convicted before modern advances in DNA technology should be given the opportunity to obtain DNA testing if such tests might show their innocence .

I am also encouraged by the growing chorus of calls for reform of our capital punishment system by criminal justice experts and respected opinion leaders nationwide. George Will wrote in a April 6th column that `skepticism is in order' when it comes to capital punishment. Another conservative columnist, Bruce Fein, wrote in The Washington Times on April 25th:

A decent respect for life . . . demands scrupulous concern for the reliability of verdicts in capital punishment trials. Otherwise, the death penalty game is not worth the gamble of executing the innocent--a shameful stain on any system of justice--and life sentences (perhaps in solitary confinement) should be the maximum.

Mr. Fein writes as one who served as a senior Justice Department official in the Reagan Administration.

More recently, on May 11th, the Constitution Project at Georgetown University Law Center established a blue-ribbon National Committee to Prevent Wrongful Executions, comprised of supporters and opponents of the death penalty, Democrats and Republicans, including six former State and Federal judges, a former U.S. Attorney, two former State Attorneys General, and a former Director of the FBI. According to its mission statement, this Committee is `united in [its] profound concern that, in recent years, and around the country, procedural safeguards and other

assurances of fundamental fairness in the administration of capital punishment have been significantly diminished.' Many of the concerns that the Committee has raised are addressed in the legislation that Senator Smith and I are introducing today.

Just yesterday, the editors of The Washington Times noted that `the increased use of DNA analysis has in fact revealed some serious flaws in the way the justice system exacts the supreme penalty,' and succinctly expressed the common sense view of nine out of ten Americans and the basic point that underlies our legislation: `Surely no one could reasonably object to making sure we execute only the guilty.'

I ask unanimous consent that The Washington Times editorial be included in the Record at this point, together with the articles by George Will and Bruce Fein, and editorials dated February 19 and 28 from the New York Times and The Washington Post, both praising the Innocence Protection Act .

As I describe some of the major reforms proposed by our legislation, I ask you to consider these issues from the perspective of a capital juror, an ordinary citizen who is asked by his government to do one of the toughest things a citizen can do: sit in judgment on another person's life. You would not want to make the wrong decision. You would want the process to work so that you could make the right decision.

We need to enact real reforms to combat the very real risk in America today that an innocent person is being executed. I will now describe some of the major reforms proposed by our legislation.

More than any other development, improvements in DNA testing have provided the critical evidence to exonerate innocent people. In the last decade, scores of wrongfully convicted people have been released from prison--including many from death row--after DNA testing proved they could not have committed the crime for which they were convicted. In some cases the same DNA testing that vindicated the innocent helped catch the guilty.

As I already mentioned, 92 percent of Americans agree that we need to make DNA testing available in every appropriate case. But this legislation is not about public opinion polls--it is about saving innocent lives.

A few months ago, I met Kirk Bloodsworth, a former Marine who was convicted and sentenced to death in Maryland for a crime that he did not commit. Nine years later, DNA testing conclusively established his innocence .

On the same day, I met Clyde Charles. He spent 9 years pleading with the State of Louisiana for the DNA testing that eventually exonerated him. He missed the childhood of his daughter, he contracted diabetes and tuberculosis while in prison, and both of his parents died before his release.

Just last Wednesday, the Governor of Texas pardoned A.B. Butler, who served 17 years of a 99-year sentence for a sexual assault that he did not commit before he was finally cleared by DNA testing. Butler spent 10 years trying to have DNA testing done in his case.

One day later, the Governor of Virginia ordered new DNA testing for Earl Washington, a retarded man convicted of a rape-murder in 1982.

There are still significant numbers of convicted men and women in prisons throughout the country whose trials preceded modern DNA testing. If history is any guide, then some of these individuals are innocent of any crime.

If DNA testing can help establish innocence , there is no reason to deny testing, and every reason to grant it. This is not about guilty people trying to get off on legal technicalities. This is about innocent people trying to prove their innocence --and being thwarted by legal technicalities. Our bill will allow retroactive tests for people tried before DNA technology was available to them, and eliminate the procedural bars that may prevent the introduction of new, exculpatory DNA evidence. Our bill will also ensure that inmates are notified before a State destroys a rape kit or other biological evidence that may, through DNA testing, prove that an inmate was wrongfully convicted.

What possible reason could there be to deny people access to the evidence--often the only evidence--that could prove their innocence ? Now that we have DNA fingerprinting that can prove a person's innocence , why should we as a society be willfully blind to the truth?

The sole argument I have heard advanced against the Leahy-Smith proposal is that it is somehow overly broad. As best I can understand this objection, the point seems to be that in some cases, DNA evidence will only confirm the jury's guilty verdict. That is the point that Virginia prosecutors have advanced in opposing DNA testing for death row inmate Derek Barnabei. But as the Washington Post pointed out in a March 20th editorial about the Barnabei case, the possibility that DNA testing will confirm an inmate's guilt is no reason to deny testing:

It is hard to see why a state, before putting someone to death, would be unwilling to demonstrate a jury verdict's consistency with all of the evidence. Indeed, this is precisely the type of case in which the state should have no choice. Under [the Innocence Protection Act ], states would be obligated in such circumstances to allow post-conviction DNA testing. Such a law would not merely offer a layer of protection to innocent people but would increase public confidence in the convictions of guilty people.

I am grateful for the Post's endorsement.

As the Post has pointed out, this is a common sense reform. As opinion polls have shown, the idea of ensuring DNA testing is available in appropriate cases enjoys the support of the vast majority of Americans. And as the recent cases that I have discussed make clear, this is a matter of national urgency. I hope we can move forward expeditiously.

Post-conviction DNA testing is an essential safeguard that can save innocent lives when the trial process has failed to uncover the truth. As the Governor of New York has recognized, DNA testing also serves as a window into the systemic flaws of our capital punishment apparatus. In May, Governor Pataki proposed the creation of a panel to investigate the facts behind DNA exonerations and to determine what went wrong.

When DNA uncovers one miscarriage of justice after another, it is neither just nor sensible to stop at making post-conviction DNA testing more available. It is unjust because innocent people should not have to wait for years after trial to be exonerated and freed. It is not sensible because society should not have to wait for years to know the truth. When dozens of innocent people are being sentenced to death, and dozens of guilty people are working free because the State has convicted the wrong person, we must ask ourselves what went wrong in the trial process, and we must take what steps we can to make sure it does not happen again.

There is a recurring theme in wrongful conviction cases--incompetent and grossly underpaid defense counsel. That theme is well illustrated by the case of Federico Macias. He spent nine years on Texas's death row and came within two days of execution because his trial lawyer did almost nothing to prepare for trial. No doubt, being paid less than $12 an hour was a disincentive for the lawyer to conduct a more thorough investigation.

This lawyer failed to call available witnesses who could have refuted the State's case, and based his trial decisions on a fundamental misunderstanding of Texas law. The lawyer also admitted he did no investigation at all for the sentencing phase. His only preparation was to speak to his client and his client's wife during the lunch break of the sentencing proceeding.

Macias was eventually cleared of all charges and released from prison, thanks to volunteer work by a Washington lawyer who intervened just before the scheduled execution. Here is what the Federal Court of Appeals had to say when it overturned Macias's conviction:

We are left with the firm conviction that Macias was denied his constitutional right to adequate counsel in a capital case in which actual innocence was a close question. The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.

Federico Macias's case was not unique. In the Texas criminal justice system, there is a whole category of capital cases known as the sleeping lawyer cases, to which the majority of the Texas Court of Criminal Appeals has responded with apathy. This attitude was chillingly conveyed by one Texas judge who reasoned that, while the Constitution requires a defendant to be represented by a lawyer, it `doesn't say the lawyer has to be awake.'

But this is not just a Texas problem, this is a nationwide problem. In case after case across the country, capital defendants have found their lives placed in the hands of lawyers who are hopelessly incompetent--lawyers who were drunk during the trial; lawyers who never bothered to investigate the case or even meet with their client before trial; and lawyers who were suspended or disbarred.

Oklahoma spent all of $3,200 on the defense of Ronald Keith Williamson; it got what it paid for when Williamson's lawyer failed to investigate and present to the jury a simple fact--the fact that another man had confessed to the murder. Both Williamson and his codefendant were eventually cleared of any crime.

In Illinois, Dennis Williams was defended by a lawyer who was simultaneously defending himself in disbarment proceedings. Williams was eventually exonerated in 1996, after 18 years on death row, with the help of three journalism students from Northwestern University.

That is not how the American adversarial system of criminal justice is meant to work. Americans on trial for their lives should not be condemned to rely on sleeping lawyers, drunk lawyers, disbarred lawyers, or lawyers who do not have the resources to do the job. In our society, lawyers and journalists both serve important fact-finding functions. But, as one of the Northwestern University journalism students so aptly said after proving the innocence of yet another death row inmate, Anthony Porter, `Twenty-one-year-olds are not supposed to be responsible for finding the innocent people on death row.'

The need for competent and adequately funded lawyers to make our adversarial system work is not a novel insight, and the lack of such lawyers and funding is not a novel discovery. In 1991, Retired Chief Justice Harold Clarke of Georgia told the Georgia State Bar that:

Providing lawyers for poor people accused of crimes is a state obligation. The Constitution teaches us that. But more important, common sense and human decency tell us that. Yet we haven't listened to those voices.

In repeated resolutions dating back to the 1980s, the Conference of Chief Justices has urged States to do more to ensure that capital defendants are provided quality representation. In 1995, for example, the Chief Justices resolved that each State should `establish standards and a process that will assure the timely appointment of competent counsel, with adequate resources, to represent defendants in capital cases at each stage of such proceedings.'

As we enter the 21st century, a few States have heeded this advice. But many are still not listening to the voices of the people who know first hand what a mockery incompetent and underfunded defense lawyers can make of our criminal justice system. I have described two cases, from Texas and Oklahoma, in which the State grossly underfunded appointed counsel and

got what it paid for. There are many more examples, including an Alabama case within the past year in which the court, after a full trial, limited the fee for investigating and defending against a charge of capital murder to about $4,000. After paying his investigator and paralegal, the lawyer pocketed $1,212, which worked out to $5.05 an hour--less than the minimum wage.

We should not sit back and rely on 21-year-old journalism students to save innocent people from execution. And a quarter of a century of experience with the death penalty since the Supreme Court restored it in 1976 teaches us that we cannot sit back and rely on the States to provide adequate counsel to those whom they seek to execute.

We in Congress can never guarantee that the innocent will not be convicted. But we have a responsibility, at a minimum, to ensure that when people in this country are on trial for their lives, they will be defended by lawyers who meet reasonable minimum standards of competence and who have sufficient funds to investigate the facts and prepare thoroughly for trial. That goal can be achieved by cooperation between the States and the Federal Government whereby we give the States money to fund their criminal justice systems conditioned on their meeting a floor of minimum standards, and leave the States free to improve on those standards if they are so inclined. That is what our bill seeks to achieve.

What do we owe to the innocent people who are able to win their release from prison? How do we compensate them for all the years they spent behind bars, sometimes on death row, for all the lost wages, for all the pain and suffering. In most cases, there is no compensation, or at least not much. Federal law provides a miserly $5,000 in cases of unjust imprisonment, regardless of the time served. In the case of Clyde Charles, who spent 18 years in Louisiana's Angola prison, that would come out to about 75 cents a day. Is that what society owes to Clyde Charles, for the walls placed between him and his family for 18 years, for missing his daughter's childhood, and for the diabetes and tuberculosis he contracted in prison? Does that seem about right--75 cents a day?

How about nothing at all? In 36 States, people who have been unjustly convicted and incarcerated for crimes they did not commit are barred from recovering any damages against the State. Louisiana, which destroyed the life of Clyde Charles, has no compensation statute. The States that have compensation statutes generally put a cap on payments, although none sets the cap as low as the current Federal cap of $5,000.

Let us step back and put this situation in perspective. A few years ago, a Maryland jury found that three young men had been falsely imprisoned by a security guard at an Eddie Bauer clothing store. The guard detained these men for about 10 minutes on suspicion of shoplifting, and forced one of them to remove his shirt. How much did the jury award for those 10 minutes of false imprisonment? $1 million.

Now compare what happened to Walter McMillian. In 1986, in a small town in Alabama, an 18-year-old white woman was shot to death. Walter McMillian was a black man who lived in the next town. From the day of his arrest, McMillian was placed on death row. No physical evidence linked him to the crime, and several people testified at the trial that he could not have committed the murder because he was with them all day. All three witnesses who connected McMillian with the murder later recanted their testimony. The one supposed `eyewitness' said that prosecutors had pressured him to implicate McMillian in the crime.

The jury in the trial recommended a life sentence, but the judge overruled this recommendation and sentenced McMillian to death. His case went through four rounds of appeal, all of which were denied. New attorneys, not paid by the State of Alabama, voluntarily took over the case and eventually found that the prosecutors had illegally withheld exculpatory evidence. A story about the case appeared on 60 Minutes in November 1992. Finally, the State agreed to investigate its earlier handling of the case and admitted that a grave mistake had been made. McMillian was freed into the welcoming arms of his family and friends on March 3, 1993.

Despite many years of litigation, McMillian has never been given any recompense for the years he was unjustly held on death row. His attorney has taken the issue of just compensation all the way to the U.S. Supreme Court, but to no avail.

Let us take another example in another State. In Oklahoma, 4 inmates have been exonerated by DNA testing over the past few years. When you add it up, they spent about 40 years in prison. Two of them were on death row. One came within 5 days of execution. None has received compensation--not a dime.

Putting one's life back together after such an experience is difficult enough, even with financial support. Without such support, a wrongly convicted person might never be able to establish roots that would allow him to contribute to society.

We need to do more to help repair the lives that are shattered by wrongful convictions. The Innocence Protection Act does this by raising the Federal cap on compensation, and by pushing the States to provide meaningful compensation to any person who is unjustly convicted and sentenced to death.

Money damages will never compensate for the mental anguish of being falsely convicted, for the lost years, or for the day-to-day brutality and deprivations of prison. But we must do what we can. Society owes a moral debt to the wrongfully imprisoned; that debt should be paid.

Finally, we as a Nation need to go back to first principles when it comes to deciding who is eligible for the death penalty. The United States stands alongside Iran, Nigeria, Pakistan, and Saudi Arabia as the only nations still executing people for crimes committed as juveniles. Is this the company that we want to keep?

The execution of juvenile offenders is also barred by several major human rights treaties, including the U.N. Convention on the Rights of the Child, the American Convention on Human Rights, and the International Covenant on Civil and Political Rights--perhaps the most important human rights documents in the world today. As a leader in the human rights community, it would be fitting if the United States agreed to respect the precepts of international humans rights law and comply with the terms of these treaties.

This country should also stop executing the mentally retarded. People with mental retardation have a diminished capacity to understand right from wrong. They are more prone to confess to crimes they did not commit simply to please their interrogators, and they are often unable to assist their lawyer in preparing a defense. Executing them is wrong; it is immoral. In addition, the execution of the mentally retarded, like the execution of juvenile offenders, severely damages U.S. standing in the international community.

Today, 13 States with capital punishment forbid the execution of defendants with mental retardation. The State Senator who sponsored the Nebraska bill in 1998 later said that it should not have been necessary because `no civilized, mature society would ever entertain the possibility of executing anybody who was mentally retarded.'

The legislation that I introduce today proposes that the United States Congress speak as the conscience of the Nation in condemning the continued execution of juvenile offenders and the mentally retarded.

There can be no longer be any question that our capital punishment system is in crisis. The Innocence Protection Act is the absolute minimum we must do to prevent and catch these mistakes and to restore the public's confidence in our criminal justice system.

I ask unanimous consent that the bill, a summary of the bill, and additional material be included in the Record.