U.S. Senator Patrick Leahy

Statement Of Senator Patrick Leahy, Ranking Member, Senate Judiciary Committee Hearing On Post-Conviction DNA Testing

June 13, 2000

Today the Senate Judiciary Committee holds a hearing in what I hope will be a series of hearings that will help focus the Congress' attention on steps we can take to help solve the national crisis in the administration of capital punishment. This hearing is an important first step not just for capital cases but for public confidence in the fairness and integrity of our criminal justice system as a whole.

As a Columbia University study published this week showed, state and federal judges have found over the past 25 years that about two-thirds of death penalty trials nationwide have been rendered unreliable by serious constitutional errors, and about 5 percent of the cases in which defendants were originally sentenced to death have ended in verdicts of not guilty on retrial.

The system that the study reveals is one that routinely makes grave errors, and then hopes haphazardly and belatedly to correct them years later by a mixture of state court review, federal court review and a large dose of luck.

And as prosecutors, defense lawyers, a judge, and a victim of the system will testify today, we have cast-iron scientific proof that a significant number of people sentenced to death in America in the late Twentieth Century have been absolutely, undeniably innocent.

A system that works in one case out of three is not good enough. And, while we do not know whether it has happened yet, a system that sentences a significant number of entirely innocent people to death is bound to execute one of them sooner or later. Certainly many have wrongfully suffered and many continue to endure years or decades in prison for crimes they did not commit.

The American people know this, and they understand the power of modern science, in the form of DNA evidence, to help prosecutors and innocent defendants alike establish the truth about guilt and innocence, and to save innocent lives.

In a recent poll, more than 90 percent of Americans agreed with leaders like President Clinton, Governor Ryan of Illinois, Governor Glendening of Maryland, and Governor Bush of Texas, with conservative columnist George Will, with former Reagan Administration Department of Justice official Bruce Fein, and with the American Association of Public Health Physicians . . . that DNA testing should be made available to defendants and inmates in all cases in which it has the potential to establish guilt or innocence. The American people also know that while Illinois and New York have made DNA testing available in appropriate cases, most of the States that have the death penalty have not met that standard.

DNA testing has opened a window to give us a disturbing view of the defects of capital punishment systems nationwide. Mounting evidence suggests that the cases in which DNA evidence has proven death row inmates innocent are just the tip of an iceberg of constitutional violations and wrongful convictions in death penalty cases. But DNA is a good starting point.

For more than a year I have been working on these issues with prosecutors, judges and defense counsel, with death penalty supporters and opponents, and with Democrats and Republicans. At the beginning of this year, I spoke to the Senate about the breakdown in the administration of capital punishment across the country and suggested some solutions.

I noted then that for every seven people executed, one death row inmate has been shown some time after conviction to be innocent of the crime.

Since then, many more fundamental problems have come to light. More court-appointed defense lawyers who have slept through trials in which their clients have been convicted and sentenced to death; more cases – 43 of the last 131 executions in Texas according to an investigation by the Chicago Tribune – in which lawyers who were disbarred, suspended or otherwise being disciplined for ethical violations have been appointed to represent people on trial for their lives; cases in which prosecutors have called for the death penalty based on the race of the victim; and cases in which potentially dispositive evidence has been destroyed or withheld from death row inmates for years.

We have also heard from the National Committee to Prevent Wrongful Executions, a blue-ribbon panel 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.

That diverse group of experts has expressed itself to be "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."

For months, I have worked with colleagues on both sides of the aisle and experts from all parts of the capital punishment system to craft some basic common-sense reforms.

The two most basic provisions of our bill would encourage governments to at least make DNA testing available in the kind of case in which it can determine guilt or innocence and to at least provide basic minimum standards for defense counsel so that capital trials have a chance of determining guilt or innocence by means of the adversarial testing of evidence that should be the hallmark of American criminal justice. Our bill will not free the system of all human error, but it will do much to eliminate errors caused by the willful blindness to the truth that our capital punishment system has exhibited all too often. That is the least we should demand of a justice system that puts people's lives at stake.

I am greatly encouraged that Senators Gordon Smith, Susan Collins, Russ Feingold, Jim Jeffords, and others here in the Senate, and Representatives Ray LaHood, William Delahunt, and 45 other members of both parties in the House have joined me in sponsoring the Innocence Protection Act of 2000.

Last year I began urging the Chairman to join us in examining these critical issues. I regret that he has thus far chosen not to join in our bipartisan bill, but I am grateful that he has agreed to hold this hearing, and I am hopeful that we can work together to get common-sense legislation enacted.

In that spirit, let me respond briefly to Chairman Hatch's remarks. I agree with Chairman Hatch that reforms need to be carefully measured, and that, as I have argued on many occasions in the Senate, federalism is an important value in the criminal justice system. As a former prosecutor and former Vice President of the National District Attorneys Association, I am always eager to consult with prosecutors at the State and local level, to let the States develop their own solutions to problems. . . to help provide the assistance, resources and training needed to make improvements. That is why we crafted the DNA provisions of the Innocence Protection Act with great care and with close attention to the experiences of Illinois and New York, the two States that have led the way in allowing DNA testing and that is why both the DNA and competent counsel provisions of the Innocence Protection Act work by encouraging States to meet minimum standards and giving them latitude to improve on those standards, not by inflexible federal mandates. On the other hand, I am also concerned to ensure that we enact reforms that are real and effective.

That is why our bill does not impose technical and legalistic barriers to DNA testing. That is why our bill does not require defendants to prove their innocence before they can obtain access to the DNA evidence that can determine guilt or innocence. And that is why our bill goes beyond DNA evidence to address the more fundamental issue of ensuring that defendants have minimally competent counsel at trial.

I have been greatly heartened by the response of experts on federalism and criminal justice across the political spectrum to our careful work, and I would like to just highlight one example: a letter I received yesterday from Bruce Fein, a leading constitutional expert and former Associate Deputy Attorney General in the Reagan Administration. I would ask for the Chairman's agreement for me to submit Mr. Fein's full letter for the record, but let me just quote his overall assessment of the constitutionality and wisdom of our bill:

"In my view, the proposed legislation raises no serious constitutional problems, respects our traditions of federalism in the field of criminal justice, and represents a measured and fact-bound response to the documented truth-finding deficiencies in death penalty and sister prosecutions, especially where DNA evidence might be conclusive on the question of innocence." I am grateful to Mr. Fein for his thoughtful letter, which tests each provision of the Innocence Protection Act against his commitment to federalism and his position of support for the death penalty in egregious cases. And I look forward to working with those who come with constructive criticism as well as supporters of our legislation to make a difference so that we can enact measured but effective reforms to combat the very real risk in America today that an innocent person is being executed.

I want to thank the Committee for proceeding with this hearing, and I especially want to thank Senator Smith, Congressman LaHood, and Congressman Delahunt for their testimony today. I commend Senator Feingold for his leadership on these issues and Senators Kohl, Feinstein, Schumer and Hatch for their interest in these important subjects.

Mr. Chairman, in addition to the letter by Bruce Fein, I have some additional materials that I would like to submit for the record, including portions of Professor Liebman 's report, portions of two reports by the National Institute of Justice relating to post-conviction DNA testing, and a letter to me from Professor Larry Yackle of the Boston University Law School addressing the constitutionality of section 104 of the Innocence Protection Act. I also offer for the record a letter that you and I have received from former FBI Director William Sessions. I also ask that the record of this hearing be kept open for a week for further submissions.

The public discourse on death penalty errors is maturing from a debate on whether the system is broken to a constructive dialogue on how broken it is, and about how much or how little reform we need to fix it. Mr. Chairman, this hearing will help us move toward solutions, and I join you in welcoming our witnesses.

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