Statement of Senator Patrick Leahy, Chairman, Senate Judiciary Committee,
Executive Business Meeting On The Leahy-Specter-Feinstein-Biden-Durbin-Edwards Substitute Amendment to S. 486,
The Innocence Protection Act
July 11, 2002

Today this Committee is doing something that I have urged for a long time: We are marking up a version of S.486, the Innocence Protection Act. The legislation before us, the Leahy-Specter-Feinstein-Biden-Durbin substitute amendment to that bill, is not a cure-all for the criminal justice system, or even for the capital punishment system, but it is a very good bill. It reflects careful thought, and principled compromise, concerning the key reforms necessary to protect the innocent, and about the needs of law enforcement and States' rights. If we can pass it out of Committee today, and bring it to a vote this year, that will be a significant victory, not just for the many of us who have worked on it, but for American justice.

Over the past year, this Committee has held four hearings on the flaws in our nation's capital punishment system, which have repeatedly landed innocent people on death row. I believe that the members of this Committee have listened to the evidence carefully, and I am hopeful that we have reached a broad consensus, spanning Republicans and Democrats, those who support and those who oppose the death penalty.

One of Congress's most important responsibilities is to turn this sort of strong bipartisan consensus on fundamental principles of justice into practical legislation. So I am delighted today to recognize my colleagues who have worked hard and long to do just that in the area of capital punishment reform. First, I want to commend and thank Bill Delahunt and Ray LaHood, the lead sponsors of the Innocence Protection Act in the House. Their commitment to this legislation has been truly outstanding. I also want to thank their cosponsors - there are now 240 cosponsors of the House bill - as well as Gordon Smith, Susan Collins, and all the other cosponsors of S.486. I am especially grateful to all the Members of the Committee who have worked with me on this effort. Senator Feingold is an original cosponsor of S.486, and a powerful voice in the national debate on capital punishment. Senators Kennedy, Durbin, Cantwell, and Edwards are also cosponsors of S.486. Senator Feinstein has worked with me for the past year to find common ground on DNA and counsel provisions that would enable us to move forward together. Senator Specter brought his experience as a prosecutor to bear in crafting a bill that complements the Innocence Protection Act; several of his proposals have been incorporated in the substitute amendment. We also benefitted from Senator Biden's vast experience in the criminal justice system, and I welcome his cosponsorship of the substitute amendment. Now let me turn to the specifics of the substitute amendment before the Committee.

Title I of the substitute amendment ensures that post-conviction DNA testing will be available in appropriate cases, where it can help expose wrongful convictions. It establishes the procedures to be followed in the federal system, and it requires States to adopt comparable procedures as a condition of receiving federal funds for DNA-related programs. In addition, it adopts the view of two federal judges - Judge Luttig of the Fourth Circuit Court of Appeals and Judge Weiner of the Eastern District of Pennsylvania - that inmates have a constitutional right to access biological evidence for the purpose of DNA testing.

Title II of the substitute amendment addresses the counsel issue. It establishes a grant program for States to improve the systems by which they appoint and compensate lawyers in death cases. States that authorize capital punishment may apply for these grants or not, as they wish. If they accept the money, they must open themselves up to a set of controls, which are designed to ensure that their systems truly meet basic standards. If a State does not wish to participate in this program, then the money will be used to fund one or more organizations in the State that provide legal services in capital cases.

Title III of the substitute amendment addresses the bizarre spectacle that occurs when the Supreme Court grants a petition and agrees to hear an appeal by a death row inmate, but then renders that decision meaningless by failing to stay the inmate's execution while that appeal is pending. We owe a great debt to Senator Specter for raising this issue and devising a solution under which stays of execution would be automatic when the Supreme Court grants a petition to a death row inmate.

The remaining provisions of the substitute amendment relate to compensation of the wrongfully convicted, and loan forgiveness for prosecutors and public defenders. I thank Senator Durbin and Senator Kennedy for working out the details of the loan forgiveness program, which will help State and local prosecutor and public defender offices to recruit and retain the most talented young lawyers. Those familiar with the original bill that I introduced, S. 486, will notice several key differences in the substitute amendment, which address the concerns of prosecutors and States. In essence, the substitute amendment tightens requirements for DNA testing to screen out frivolous applications, and seeks to improve counsel systems through more of a carrot than a stick approach. We will finally put an end to the sleeping lawyer syndrome, but in a manner that is respectful of state prerogatives and that does not interfere with the 1996 changes to habeas corpus law.

As I stated at the outset of my remarks, the substitute amendment is a product of both careful thought and principled compromise.  In many - not all - respects, I prefer the original S.486.  For example, my understanding of States' rights does not call for a completely hands-off approach to habeas corpus when some States have consistently failed to provide indigent defendants with competent lawyers. But the issues this bill addresses are too important to play partisan gridlock games with.

The bill before the Committee reflects a principled consensus on the most basic essential reforms; it raises no serious constitutional or law enforcement concerns; it will improve criminal justice in America considerably; and it may well save innocent lives. I am therefore proud to sponsor it, and I hope we can send it forward today with strong bipartisan backing.

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