Calendar No. 731 107TH CONGRESS REPORT " ! 2d Session SENATE 107–315 THE INNOCENCE PROTECTION ACT OF 2002 OCTOBER 16, 2002.—Ordered to be printed Mr. LEAHY, from the Committee on the Judiciary, submitted the following R E P O R T together with MINORITY VIEWS [To accompany S. 486] The Committee on the Judiciary, to which was referred the bill (S. 486) to reduce the risk that innocent persons may be executed, and for other purposes, having considered the same, reports favor- ably thereon, with an amendment in the nature of a substitute, and recommends that the bill, as amended, do pass. CONTENTS Page I. Purpose and summary ................................................................................... 1 II. Legislative history ......................................................................................... 2 III. Votes of the Committee ................................................................................. 6 IV. Discussion ....................................................................................................... 7 V. Section-by-section analysis ............................................................................ 42 VI. Cost estimate .................................................................................................. 46 VII. Regulatory impact statement ........................................................................ 46 VIII. Minority views of Senator Hatch .................................................................. 47 IX. Changes in existing law ................................................................................ 216 I. PURPOSE AND SUMMARY The purpose of the Innocence Protection Act, S. 486, is to help reduce the risk both that innocent persons will be put to death and that those guilty of violent crimes will remain at large. The bill, as amended and reported by the Senate Judiciary Committee, would improve the administration of justice by (1) providing eligible in- mates access to DNA testing to establish innocence; (2) authorizing 19–010 VerDate 0ct 09 2002 23:52 Oct 23, 2002 Jkt 019010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR315.XXX SR315 2 grants to assist States in improving systems for the appointment of capital defense attorneys; (3) authorizing grants to train State and local prosecutors, defense counsel, and judges in handling cap- ital cases; (4) increasing compensation of individuals wrongfully convicted in Federal court; (5) staying the execution of inmates whose cases are pending in the U.S. Supreme Court; and (6) estab- lishing a student loan forgiveness program for prosecutors and pub- lic defenders. II. LEGISLATIVE HISTORY A. 106TH CONGRESS The Innocence Protection Act was first introduced as S. 2073 on February 10, 2000, by Senators Leahy, Levin, Feingold, Moynihan and Akaka. A revised version of the bill was introduced as S. 2690 on June 7, 2000, by Senators Leahy, Smith of Oregon, Collins, Levin, Jeffords, Feingold, Moynihan, Akaka, Kerrey, and Wellstone. Representatives William Delahunt, Ray LaHood, and nine cosponsors introduced the measure in the House of Represent- atives as H.R. 4167 on April 4, 2000. On June 13, 2000, the Judiciary Committee held a hearing enti- tled ‘‘Post-Conviction DNA Testing: When is Justice Served?’’, chaired by Senator Hatch. The witnesses included two State Attor- neys General—Drew Edmonson of Oklahoma and Elliott Spitzer of New York—and three members of the Department of Justice’s Na- tional Commission on the Future of DNA Evidence—George Clarke, Deputy District Attorney in San Diego, CA; James Wooley, a partner in the law firm of Baker & Hostetler and a former Fed- eral prosecutor; and Barry Scheck, cofounder of the Innocence Project at the Benjamin N. Cardozo School of Law in New York City. The other witnesses were Enid Camps, Deputy Attorney Gen- eral for the State of California; Charles Baird, a former judge on the Texas Court of Criminal Appeals and cochair of the Constitu- tion Project’s National Committee to Prevent Wrongful Executions; Joshua Marquis, District Attorney of Clatsop County, OR; and Den- nis Fritz, a man wrongfully convicted of rape and murder who was exonerated through DNA testing after serving 12 years in Okla- homa prisons. Incident to the June 13 hearing, the Committee received letters in support of S. 2690 from former Associate Deputy Attorney Gen- eral Bruce Fein and Prof. Larry Yackle of Boston University Law School. Other items submitted for the hearing record included the following: a memorandum entitled ‘‘The Effect of the Innocence Protection Act on State Sovereignty’’; a letter from former F.B.I. Di- rector William S. Sessions to Senator Hatch dated June 12, 2000; Chapters I–III of the National Institute of Justice report entitled ‘‘Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial,’’ pub- lished in June 1996; Chapters I–III of the National Institute of Justice report entitled ‘‘Postconviction DNA Testing: Recommenda- tions for Handling Requests,’’ published in September 1999; and the executive summary of ‘‘A Broken System: Error Rates in Cap- ital Cases, 1973–1995,’’ published in June 2000 by professors at Co- lumbia University. VerDate 0ct 09 2002 23:52 Oct 23, 2002 Jkt 019010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR315.XXX SR315 3 One week after the Senate hearing, the House Subcommittee on Crime held a hearing on H.R. 4167. Testifying in support of the legislation were Illinois Governor George Ryan; New York Attorney General Elliot Spitzer; Stephen Bright, Director of the Southern Center for Human Rights; Gerald Kogan, former Chief Justice of the Florida Supreme Court and cochair of the National Committee to Prevent Wrongful Executions; Prof. James Coleman, Jr., of the Duke University School of Law, on behalf of the American Bar As- sociation (ABA); Peter Neufeld, cofounder of the Innocence Project; and Kirk Bloodsworth of Cambridge, MD, who was the first capital defendant freed as a result of DNA testing. Testifying against the legislation were two State prosecutors, Stuart VanMeveren, Dis- trict Attorney in Fort Collins, CO, on behalf of the National Dis- trict Attorneys Association, and California Deputy Attorney Gen- eral Ward Campbell. B. 107TH CONGRESS Senators Leahy, Smith of Oregon, Collins and 13 additional co- sponsors introduced S. 486 on March 7, 2001. The same day, Rep- resentatives Delahunt, LaHood and 116 cosponsors introduced an identical version of the bill, H.R. 912, in the House of Representa- tives. 1. Hearings On June 27, 2001, the Judiciary Committee held a hearing on the bill entitled ‘‘Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases,’’ chaired by Senator Leahy. Wit- nesses testifying in support of the bill were: Texas State Senator Rodney Ellis; Stephen Bright, Director of the Southern Center for Human Rights; Beth Wilkinson, a former Federal prosecutor and cochair of the Constitution Project’s Death Penalty Initiative (for- merly the National Committee to Prevent Wrongful Executions); and Michael Graham, a former death row inmate who was exoner- ated in December 2000. Testifying against the bill were Alabama Attorney General William Pryor; Ronald Eisenberg, Deputy District Attorney in Philadelphia; and Kevin Brackett, Deputy Solicitor, 16th Circuit, South Carolina. The Committee received written statements and letters regard- ing various State capital defense systems from Steven Benjamin (Virginia); David Bruck (South Carolina); Bryan Stevenson (Ala- bama); Clive Stafford Smith (Louisiana); Charles Press (Mis- sissippi); Michael Pescetta (Nevada); Maureen Kearney Rowley (Pennsylvania); Maurie Levin (Texas); and Denise Young (Arizona). Other items submitted at the hearing included the executive sum- mary of a report entitled ‘‘The Crisis in Post-Conviction Represen- tation in Capital Cases since the Elimination by Congress of Fund- ing for the Post-Conviction Defender Organizations,’’ published by the Administrative Office of the U.S. Courts in 1999 and updated in 2001; a statement by Norman Lefstein, Dean of the Indiana Uni- versity School of Law, on behalf of the ABA; a summary of the rec- ommendations of the Constitution Project’s Death Penalty Initia- tive; an open letter from a number of current and former prosecu- tors, law enforcement officers, and Justice Department officials, en- dorsing S. 486; and a letter from Charles Lloyd, an attorney who VerDate 0ct 09 2002 23:52 Oct 23, 2002 Jkt 019010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR315.XXX SR315 4 represented Michael Graham’s codefendant, Albert Burrell, describ- ing the ‘‘shocking incompetence’’ of Burrell’s trial lawyers. The Judiciary Committee continued its examination of the Na- tion’s capital punishment systems on June 18, 2002, with a hearing chaired by Senator Leahy entitled, ‘‘Protecting the Innocent: Pro- posals to Reform the Death Penalty.’’ This hearing addressed S. 486 and a number of other bills introduced in the 107th Congress designed to reform systems of capital punishment: S. 233, the Na- tional Death Penalty Moratorium Act of 2001; S. 800, the Criminal Justice Integrity and Innocence Protection Act of 2001; and S. 2446, the Confidence in Criminal Justice Act of 2002. The wit- nesses were Representatives Delahunt and LaHood; Barry Scheck; Prof. Larry Yackle of the Boston University School of Law; Prof. James Liebman of the Columbia Law School; Paul A. Logli, State’s Attorney for Winnebago County, IL, on behalf of the National Dis-