MINORITY VIEWS ON S. 486 CONTENTS I. Introduction and Summary II. Capital Punishment in America III. Access to DNA Testing IV. Defense Counsel in State Capital Cases V. Supreme Court Review and Stay of Execution VI. Other Issues VII. Conclusion I. INTRODUCTION AND SUMMARY The stated purpose of S. 486, “The Innocence Protection Act,” is to “reduce the risk that innocent persons may be executed.” No one on the minority objects to such a purpose. There is no question that every member of the Judiciary Committee agrees that the death penalty in our country must be imposed fairly and accurately. To ensure such fairness, we agree on the need to provide post-conviction DNA testing for certain defendants. And we agree on the need to ensure that every defendant is represented by competent counsel as required by the Sixth Amendment of our Constitution and numerous Supreme Court decisions enforcing this requirement. But, as detailed herein, we disagree with the means contained in S. 486 to accomplish these important goals and some of the underlying premises on which the bill is based. S. 486 is presented by the Majority as a bill to ensure access to DNA testing and competent counsel in capital proceedings. While such goals are laudable, the Majority Report raises broader issues relating to the overall fairness of the death penalty system in this country, the need for a national moratorium, and the need to address other “defects of capital punishment systems nationwide.” Majority Report at 7-8, 19. Some who have injected these larger concerns into the debate over S. 486 are simply attempting to frustrate the administration of the death penalty in our country by alleging, without any credible evidence, that there is a significant risk that innocent persons have been or will be executed. By attaching itself to this claim, the Majority has lent credence to a minority of activist groups that has little concern for the overall safety of the public and the significant benefits to our society of a swift, accurate and fair death penalty system. Contrary to the Majority’s view, we submit that the death penalty system in our country is accurate. Suggestions to the contrary are contradicted by the fact that no credible evidence has been provided to suggest that a single innocent person has been executed since the Supreme Court imposed the heightened protections in 1976. The death penalty system now includes numerous layers of court review, which ensure that errors are identified and corrected. In fact, the death penalty system saves lives by incapacitating dangerous offenders who, if freed, would pose a significant risk that they will kill again. Moreover, there is substantial evidence that the death penalty is a significant deterrent; States that impose the death penalty have reduced murder 1 rates, while States that do not impose the death penalty have experienced increases in murder rates. For convicted murderers who are already serving life without parole sentences, the death penalty is a critical deterrent to the murder of prison guards, nurses, and other inmates. Moreover, the possibility of the death penalty has served a vital national security interest by encouraging those guilty of espionage against the United States, like Aldrich Ames and Robert Hanssen, to cooperate and provide full disclosure of the damage they caused. We remain vigilant in ensuring that capital punishment is meted out fairly against those truly guilty criminals. We cannot and should not tolerate defects in the capital punishment system. No one can disagree with this ultimate and solemn responsibility. No one wants to see an innocent person punished. Responsible reforms should be enacted when needed. With respect to post-conviction DNA testing, we recognize that, in the last decade, DNA testing has become the most reliable forensic technique for identifying criminals when biological evidence is recovered. Since the early 1990s, DNA testing is now standard in pre-trial investigations. We recognize that the need to ensure that the convicted have access to DNA testing where such testing was not previously available and where such testing holds a real possibility of establishing the defendant’s actual innocence. No one disagrees with the fact that post-conviction DNA testing should be made available to defendants when it serves the ends of justice. The integrity of our criminal justice system and, in particular, our death penalty system, can be enhanced with the appropriate use of DNA testing. Unfortunately, S. 486 establishes post-conviction DNA testing procedures which are too broad and unfairly skewed in favor of convicted defendants who have no reasonable chance to establish their innocence. S. 486 does not adequately protect against convicted criminals filing frivolous post-conviction applications in order to “game” the system. In addition, S. 486 unconstitutionally relies on Section 5 of the 14th Amendment to impose these same specific DNA testing requirements on the states, even though many States already have adopted, or are in the process of adopting, DNA testing procedures for convicted defendants. With respect to measures designed to improve the competency of defense counsel handling of State capital cases, the Majority has built into S. 486 a host of improper provisions aimed at restricting state sovereignty, and burdening States with a new set of unfunded federal mandates. Specifically, S. 486: (1) strips the States and State courts of their traditional role in the administration of State court systems by requiring States to establish “independent” agencies responsible for representation of indigent defendants in capital cases; (2) mandates competency standards which must be imposed on defense counsel in each state; or alternatively (3) funds private defense organizations to administer systems for appointment of defense counsel to represent indigent defendants in State capital trials. S. 486 also threatens to reduce vital Byrne Grant funding to the States in order to fund private defense organizations. Finally, S. 486 will unleash a torrent of enforcement suits by prisoners, private interest groups and others by authorizing private enforcement suits against the States to ensure that the separate agency is, in fact, “independent,” and that federally-mandated competency standards are being met. 2 Considered in this context, S. 486 is not limited to the creation of a reasonable post- conviction DNA testing system for certain defendants. If that were the case, legislation on the post-conviction DNA testing issue could have been worked out in short order and passed by a unanimous Judiciary Committee. Rather, S. 486 will remove the States and State courts from their traditional responsibility for appointing counsel to represent indigent capital defendants in State criminal cases. In its place, S. 486 seeks to resuscitate private organizations, e.g. capital resource litigation centers, which Congress defunded in the mid-1990s because of serious ethical, political and financial abuses. It is unfortunate that an opportunity to build a broad consensus around the important issues of DNA testing and competency of defense counsel has been missed. When the Judiciary Committee first began to examine these issues, we all shared the hope that meaningful and appropriate legislation could be developed by a unanimous Judiciary Committee. Unfortunately, S. 486, as passed by the Judiciary Committee, has been used as a vehicle for a broader and more dangerous agenda which relies on unconstitutional assertions of power, threatens traditional notions of federalism, and will frustrate the effective and fair imposition of the death penalty. We share the desire to afford post-conviction DNA testing where such tests will establish the defendant’s actual innocence. We also agree that funding should be provided to prosecutors, defense counsel and State courts to conduct meaningful training programs which will improve performance, and reduce errors in State capital trials. We remain hopeful that further consideration of S. 486 will result in modifications to reflect the true consensus on these important issues. We continue to support the more reasoned approach to the issues of access to DNA testing and competence of counsel made in S.2739, which was introduced by Senator Hatch. That proposal will further our nation’s commitment to justice, ensure that our country has a fair death penalty system, and protect the sovereignty of States from burdensome and unnecessary federal assertions of power. II. CAPITAL PUNISHMENT IN AMERICA We disagree with the underlying premise for much of S. 486 – that the death penalty system in our country is “broken” and needs to be fixed. In our view, the death penalty system in our country continues to play a vital role in protecting the public from vicious criminals by deterring and punishing murderers. Moreover, aside from the protection of the public and the just punishment of the guilty, our death penalty system vindicates the right of victims and their families to see that justice is done. All too often, the value of a swift, certain and reliable death penalty is challenged by a vocal minority of special interest groups seeking to advance their own anti-death penalty agenda by proffering unreliable studies and generalizations based on isolated incidents. Death penalty opponents pursue their cause without even considering the public benefits of the death penalty. S. 486, and the debate surrounding the bill, demonstrate once again the dangers of making public policy based on such a narrow viewpoint. The death penalty system in our country has been built on “super due process,” a term 3 used by former Supreme Court Justice Lewis Powell to describe the procedural system for imposing and reviewing death penalty cases. We have an elaborate system of appeals in capital cases, which typically involves multiple levels of State and federal review, ultimately landing at the United States Supreme Court. Over the past 25 years, procedural protections have been adopted to reduce as much as possible the likelihood that error will be committed or, if committed, that it will go undetected.