Floor Statement on the Innocence Protection Act of 2001

March 7, 2001

Mr. President, a little over one year ago, I came to this floor to draw attention to the growing crisis in the administration of capital punishment. I noted the startling number of cases – 85 – in which death row inmates had been exonerated after long stays in prison. In some of those cases, the inmate had come within days of being executed.

A lot has happened in a year. For one thing, a lot more death row inmates have been exonerated. The number jumped in a single year from 85 all the way to 95. There are now 95 people in 22 States who have been cleared of the crime that sent them to death row, according to the Death Penalty Information Center. The appalling number of exonerations, and the fact that they span so many States -- a substantial majority of the States that have the death penalty -- makes it clearer than ever that the crisis I spoke of last year is real, and that it is national in its scope. This is not an "Illinois problem" or a "Texas problem." Nor, with Earl Washington ’s release last month from prison, is it a "Virginia problem." There are death penalty problems across the nation, and as a nation we need to pay attention to what is happening.

It seems like every time you pick up a paper these days, there is another story about another person who was sentenced to death for a crime that he did not commit. The most horrifying miscarriages of justice are becoming commonplace: "Yet Another Innocent Person Cleared By DNA, Walks Off Death Row" – story on page 10. We should never forget that behind each of these headlines is a person whose life was completely shattered and nearly extinguished by a wrongful conviction.

And those were the "lucky" ones. We simply do not know how many innocent people remain on death row, and how many may already have been executed.

People of good conscience can and will disagree on the morality of the death penalty. I have always opposed it. I did when I was a prosecutor, and I do today. But no matter what you believe about the death penalty, no one wants to see innocent people sentenced to death. It is completely unacceptable.

A year ago, along with several of my colleagues, I introduced the Innocence Protection Act of 2000. I hoped this bill would stimulate a national debate and begin work on national reforms on what is, as I said, a national problem. A year later, the national debate is well under way, but the need for real, concrete reforms is more urgent than ever.

Today, my friend GORDON SMITH and I are introducing the Innocence Protection Act of 2001. We 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 Senators SUSAN COLLINS and LINCOLN CHAFEE, and my fellow Vermonter JIM JEFFORDS. On the Democratic side, my thanks to Senators LEVIN, FEINGOLD, KENNEDY, AKAKA, MIKULSKI, DODD, LIEBERMAN, TORRICELLI, WELLSTONE, BOXER, and CORZINE. I also want to thank our House sponsors WILLIAM DELAHUNT and RAY LaHOOD, along with their 117 additional cosponsors, both Democratic and Republican.

Over the last year we have turned the corner in showing that the death penalty process is broken. Now we will push forward to our goal of acting on reforms that address these problems.

Here on Capitol Hill it is our job to represent the public. The scores of legislators who have sponsored this legislation clearly do represent the American public, both in their diversity and in their readiness to work together in a bipartisan manner for common-sense solutions.

Too often in this chamber, we find ourselves dividing along party or ideological lines. The Innocence Protection Act 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.

The goal of our bill is simple, but profoundly important: to reduce the risk of mistaken executions. The Innocence Protection Act proposes basic, common-sense reforms to our criminal justice system that are 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. We have listened to a lot of good advice and made some refinements to the bill since the last Congress, but it is still structured around two principal reforms: improving the availability of DNA testing, and ensuring reasonable minimum standards and funding for court-appointed counsel.

The need to make DNA testing more available is obvious. DNA is the fingerprint of the 21st Century. Prosecutors across the country use it, and rightly so, to prove guilt. By the same token, it should be used to do what it is equally scientifically reliable to do – prove innocence. Our bill would provide broader access to DNA testing by convicted offenders. It would also prevent the premature destruction of biological evidence that could hold the key to clearing an innocent person or identifying the real culprit.

I am gratified that our bill has served as a catalyst for reforms in the States with respect to post-conviction DNA testing. In just one year, several States have passed some form of DNA legislation. Others have DNA bills under consideration. Much of this legislation is modeled on the DNA provisions proposed in the Innocence Protection Act, and we can be proud about this.

But there are still many States that have not moved on this issue, even though it has been more than six years since New York passed the Nation’s first post-conviction DNA statute. And some of the States that have acted have done so in ways that will leave the vast majority of prisoners without access to DNA testing. Moreover, none of these new laws addresses the larger and more urgent problem of ensuring that people facing the death penalty have adequate legal representation. The Innocence Protection Act does address this problem.

In our adversarial system of justice, effective assistance of counsel is essential to the fair administration of justice. Unfortunately, the manner in which defense lawyers are selected and compensated in death penalty cases too often results in fundamental unfairness and unreliable verdicts. More than two-thirds of all death sentences are overturned on appeal or after post-conviction review because of errors in the trial; such errors are minimized when the defendant has a competent counsel.

It is a sobering fact that in some areas of the Nation it is often better to be rich and guilty than poor and innocent. All too often, lawyers defending people whose lives are at stake are inexperienced, inept, or just plain incompetent. All too often, they fail to take the time to review the evidence and understand the basic facts of the case before the trial is under way.

The reasons for this inadequacy of representation are well known: lack of standards for choosing defense counsel, and lack of funding for this type of legal service. The Innocence Protection Act addresses these problems head on. It calls for the creation of a temporary Commission on Capital Representation, which would consist of distinguished American legal experts who have experienced the criminal justice system first hand – prosecutors, defense lawyers, and judges. The Commission would be tasked with formulating standards that specify the elements of an effective system for providing adequate representation in capital cases. The bill also authorizes more than $50,000,000 in grants to help put the new standards into effect.

We have consulted a great many legal experts in the course of formulating these provisions. They have all provided valuable insights, but as a former prosecutor myself, I have been particularly pleased with the encouragement and assistance we have received from prosecutors across the nation.

Good prosecutors have two things in common. First, good prosecutors want to convict the right person, not to get a conviction that may be a mistake, and that may leave the real culprit in the clear. Second, good prosecutors want defendants to be represented by good defense lawyers. Lawyers who investigate their clients’ cases thoroughly before trial, and represent their clients vigorously in court, are essential in getting at the truth in our adversarial system.

Given some leadership from the people’s representatives in Congress, some fair and objective standards, and some funding, America’s prosecutors will be ready, willing and able to help fix the system. We owe them, and the American people, that leadership.

On August 3, 1995 -- more than five years ago – the Conference of Chief Justices urged the judicial leadership in each State in which the death penalty is authorized by law to "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." The States’ top jurists, the people who run our justice system, called for reform. But not much came of their initiative. Although a few States have established effective standards and sound administrative systems for the appointment and compensation of counsel in capital cases, most have not. The do-nothing politics of gridlock got in the way of sensible, consensus-based reform.

We have made a commitment to the American people to do better than that. At the end of the last Congress, members on both sides of the aisle joined together to pass the Paul Coverdell National Forensic Sciences Improvement Act and the DNA Analysis Backlog Elimination Act. I strongly supported both bills, which will give States the help they desperately need to reduce the backlogs of untested DNA evidence in their crime labs, and to improve the quality and capacity of these facilities. Both bills passed unanimously in both houses. And in both bills, all of us here in Congress committed ourselves to working with the States to ensure access to post-conviction DNA testing in appropriate cases, and to improve the quality of legal representation in capital cases through the establishment of counsel standards. Congress has already gone on record in recognizing what has to be done. Now it is time to actually do it.

If we had a series of close calls in airline traffic, we would be rushing to fix the problem. These close calls on death row should concentrate our minds, and focus our will, to act.

This new Congress is, as our new President has said, a time for leadership. It is a time for fulfilling the commitments we have made to the American people. And it is a time for action. The Innocence Protection Act is a bipartisan effort to move beyond the politics of gridlock. By passing it, we can work cooperatively with the States to ensure that defendants who are put on trial for their lives have competent legal representation at every stage of their cases. By passing it, we can send a message about the values of fundamental justice that unite all Americans. And by passing it, we can substantially reduce the risk of executing innocent people. We have had a constructive debate, and we have made a noble commitment. It is now time to act.