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The Innocence Protection
Act
November 18, 2002
Mr. LEAHY. Mr.
President, for more than two years, I have been working hard with
members on both sides of the aisle, and in both houses of Congress, to
address the horrendous problem of innocent people being condemned to
death. Our bill, the Innocence Protection Act, proposes a number of
basic, commonsense reforms to our criminal justice system. These
reforms are aimed at reducing the risk that innocent people will be
put to death.
The Evolving
Consensus
We have come many
miles since I first introduced the IPA in February 2000, along with
four Democratic co-sponsors. There is now a broad consensus across
the country – among Democrats and Republicans, supporters and
opponents of the death penalty, liberals and conservatives -- that our
death penalty machinery is broken. We know that the nightmare of
innocent people on death row is not just a dream, but a frequently
recurring reality. Since the early 1970s, more than 100 people who
were sentenced to death have been released – not because of
technicalities, but because they were innocent. Goodness only knows
how many were not so lucky.
These are not
just numbers; these are real people whose lives were ruined. Anthony
Porter came within two days of execution in 1998; he was exonerated
and released from prison only because a class of journalism students
investigated his case and identified the real killer. Ray Krone spent
ten years in prison, including three on death row; he was released
this year after DNA testing exculpated him and pointed to another man
as the real killer. These are just two of the many tragedies we learn
of every year.
Today, federal
judges are voicing concern about the death penalty. Justice Sandra
Day O’Connor has warned that “the system may well be allowing some
innocent defendants to be executed.” Justice Ginsberg has supported a
state moratorium on the death penalty. Another respected jurist,
Sixth Circuit Judge Gilbert Merritt, has referred to the capital
punishment system as “broken.” And two district court judges have
found constitutional problems with the federal death penalty.
So we can all
agree that there is a grave problem. The good news is, there is also
a broad consensus on one important step we must take – we can pass the
Innocence Protection Act.
As the 107th
Congress draws to a close, the IPA is cosponsored by a substantial
bipartisan majority of the House and by 32 Senators from both sides of
the aisle, including, most recently, Senator Bob Smith of New
Hampshire. A version of the bill has been reported by a bipartisan
majority of the Senate Judiciary Committee. And the bill enjoys the
support of ordinary Americans across the political spectrum.
The Innocence
Protection Act
What would the
Innocence Protection Act do? As reported by the Committee, the bill
proposes two minimum steps that we need to take – not to make the
system perfect, but simply to reduce what is currently an unacceptably
high risk of error. First, we need to make good on the promise of
modern technology in the form of DNA testing. Second, we need to make
good on the constitutional promise of competent counsel.
DNA testing comes
first because it is proven and effective. We all know that DNA testing
is an extraordinary tool for uncovering the truth, whatever the truth
may be. It is the fingerprint of the 21st Century.
Prosecutors across the country rightly use it to prove guilt. By the
same token, it should also be used to do what it is equally
scientifically reliable to do – prove innocence.
Where there is
DNA evidence, it can show us conclusively, even years after a
conviction, where mistakes have been made. And there is no good
reason not to use it.
Allowing testing
does not deprive the state of its ability to present its case, and
under a reasonable scheme for the preservation and testing of DNA
evidence, the practical costs, burdens and delays involved are
relatively small.
The Innocence
Protection Act would therefore provide improved access to DNA testing
for people who claim that they have been wrongfully convicted. It
would also prevent the premature destruction of biological evidence
that could hold the key to clearing an innocent person and, as we
recently saw in Ray Krone’s case, identifying the real culprit.
Just last week,
prosecutors in St. Paul, Minnesota, vacated a 1985 rape conviction
after a review of old cases led to DNA testing that showed they had
the wrong man – and also identified the actual rapist. The district
attorney wanted to conduct DNA testing in two other cases, but the
evidence in those cases had already been destroyed. She has called on
law enforcement agencies to adopt policies requiring retention of
evidence as long as defendants remain incarcerated. The IPA shares
this same objective.
But DNA testing
addresses only the tip of the iceberg of the problem of wrongful
convictions. In most cases, there is no DNA evidence to be tested,
just as in most cases, there are no fingerprints. In the vast
majority of death row exonerations, no DNA testing has or could have
been involved.
So the broad and
growing consensus on death penalty reform has another top priority.
All the statistics and evidence show that the single most frequent
cause of wrongful convictions is inadequate defense representation at
trial. By far the most important reform we can undertake is to ensure
minimum standards of competency and funding for capital defense.
Under the IPA as
reported, states may choose to work with the federal government to
improve the systems by which they appoint and compensate lawyers in
death cases. These states would receive an infusion of new federal
grant money, but they would also open themselves up to a set of
controls that are designed to ensure that their systems truly meet
basic standards. In essence, the bill offers the states extra money
for quality and accountability.
A state may also
decline to participate in the new grant program. In that case, the
money that would otherwise be available to the state would be used to
fund one or more organizations that provide capital representation in
that state. One way or another, the bill would improve the quality of
appointed counsel in capital cases.
This is a reform
that does not in any way hinder good, effective law enforcement. More
money is good for the states. More openness and accountability is
good for everyone. And better lawyering makes the trial process far
less prone to error.
When I was a
State’s Attorney in Vermont, I wanted those I prosecuted to have
competent defense counsel. I wanted to reach the right result,
whatever that was, and I wanted a clean record, not a record riddled
with error. Any prosecutor worth his or her salt will tell you the
same; any prosecutor who is afraid of trying his cases against
competent defense counsel ought to try a new line of work.
The Constitution
requires the government to provide an attorney for any defendant who
cannot afford one. The unfortunate fact is that in some parts of the
country, it is better to be rich and guilty than poor and innocent.
Far too often, defendants find their lives placed in the hands of
underpaid court-appointed lawyers who are inexperienced, inept,
uninterested, or worse. We have seen case after case of sleeping
lawyers, drunk lawyers, lawyers who meet with their clients for the
first time on the eve of trial, and lawyers who refer to their own
clients with racial slurs.
Part of the
problem, I think, lies with some state court judges who do not appear
to expect much of anything from criminal defense attorneys, even when
they are representing people who are on trial for their lives. Good
judges, like good prosecutors, want competent lawyering for both
sides. But some judges run for reelection touting the number and
speed of death sentences they have handed down. For them, the
adversary process may be an unwelcome obstacle to their political
ambitions.
The problem of
low standards is not confined to elected state judges. Earlier this
year, a bare majority of the Supreme Court held that it was okay for
the defendant in a capital murder trial to be represented by the same
lawyer who represented the murder victim. And last year, a federal
appeals court struggled with the question whether a defense lawyer who
slept through most of his client’s capital murder trial provided
effective assistance of counsel. Fortunately, a majority of the court
eventually came to the sensible conclusion that “unconscious counsel
equates to no counsel at all.”
We can never
guarantee that no innocent person will be convicted. But surely we
can do better than this. Surely we should demand more of defense
counsel than that they simply show up for the trial and remain
conscious. When people in this country are put on trial for their
lives, they should be defended by lawyers who meet reasonable
standards of competence and who have sufficient funds to investigate
the facts and prepare thoroughly for trial. That bare minimum is all
that the counsel provisions in the Innocence Protection Act seek to
achieve.
The Way
Forward
I have described
the two principal reforms proposed by the bill. I have described the
groundswell of support in favor of the bill, among those who work in
and study the criminal justice system, among ordinary Americans, and
here in Congress. So what is holding it up? I have heard four
arguments against the bill, but they are all truly feeble.
First, critics
claim that the bill is an affront to states’ rights. As a Vermonter,
and as a former state prosecutor, I agree that states’ rights are very
important. States should have the right to set their own laws, free
of federal preemption at the behest of special interests. They should
have the right to set their own budgets, free of unfunded mandates.
And their reasonable expectations of federal funding for criminal
justice and other essential programs should be met, rather than
bankrupting state governments in favor of tax cuts for the rich.
The IPA as
reported is entirely consistent with these principles of state
sovereignty. It leaves state laws, including death penalty laws, in
place. It offers states new funding for their criminal justice
systems. And a provision added during the Committee process, which
establishes a student loan forgiveness program for prosecutors and
public defenders, would also help the state criminal justice systems
to recruit and retain competent young lawyers.
This is one of
those cases, like in the civil rights era, where the rhetoric of
“states’ rights” is being abused as a code for the denial of basic
justice and accountability.
Some states have
made real and meaningful reforms voluntarily, but many have not. They
have had more than a quarter of a century and 100 death row
exonerations to get their act together, and they have failed. As many
in this body argued in 1996 when promoting legislation to speed up
executions, justice delayed is justice denied. We cannot wait forever
while innocent lives are put in peril.
The second
argument I have heard against the bill is that our society cannot
afford to pay for the reforms it proposes. The truth, however, is
that we cannot afford to do otherwise if our system of justice is to
retain the confidence of the American people and the admiration of the
civilized world. The costs of providing DNA testing and competent
counsel are relatively small, especially when we compare them to the
cost of retrials that are necessitated by the lack of adequate counsel
at trial, or the cost of locking up innocent people for years or even
decades. I am all for efficiency, but the greatest nation on earth
should not be skimping on justice in matters of life or death.
A third argument
I have heard against the Innocence Protection Act is made by a small
but vocal minority of state prosecutors. They claim that the bill
would make it unduly difficult, if not impossible, to seek the death
penalty. To me, as a former prosecutor, that is a shocking claim.
When I was a
State’s Attorney, I felt comfortable prosecuting cases because of two
things: I knew that no potentially exonerating evidence was being
withheld from the defendant, and I knew that I was working in a
well-functioning adversarial system with effective representation on
the other side. That is how the system is meant to work.
So when I hear a
prosecutor say that the IPA’s reforms – enabling DNA testing and
securing adequate defense representation – would make it almost
impossible for him to do his job, it makes me wonder just what he
thinks his job is.
Finally, there is
one more argument against the bill which is rarely stated out loud,
but which may be the most important stumbling block we face. I call
it the “innocence denial” argument.
We saw this in
the Earl Washington case in Virginia, where despite conclusive DNA
evidence to the contrary, the Commonwealth for years clung to the
hopelessly unreliable and implausible confession of a mentally
retarded man. We see it in claims that “the system is working” when
an innocent man is released after years on death row due to the
investigative work of journalism students. And we see it in the
often-repeated insistence that, however many people have been
exonerated, no one can prove that an innocent person has actually been
executed.
The “innocence
deniers” will never concede that there is a problem. But we do know
that with over 100 known instances of the system failing, it would be
surprising if there were not more unknown cases of innocent people
sentenced to death. We need to act now, before we wake up one day to
discover that we have, indeed, executed an innocent person.
Conclusion
The Innocence
Protection Act has broad bipartisan support and the arguments that
have been made against it are feeble. It addresses grave and urgent
problems with moderate, fine-tuned practical solutions. It has passed
out of Committee in the Senate and is supported by a majority of the
House. Justice demands that we pass it before more lives are ruined.
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