Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment.
To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen – not weaken – procedural protections for death row inmates was rich in symbolic importance and promise.
Writing in the April 2001 issue of The Champion (”Innocence Protection Act: Death Penalty Reform on the Horizon”), I said optimistically: “The criminal justice pendulum may be swinging back in the direction of fairness.
The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.” Four years later I’d claim that prediction was fairly accurate. While the reforms in the final bill are not as meaningful as I and others had hoped, the pendulum clearly swung. (Title IV of Public Law 108-405, Justice for All Act.)
The IPA marks a dramatic departure from 25 years of congressional debate on the death penalty. Soon after the Supreme Court revived capital punishment in 1976, proposals emerged to restore the federal death penalty. In 1986, the Reagan Administration unsuccessfully urged the U.S. Sentencing Commission to promulgate guidelines for federal capital punishment. In 1988, as part of an omnibus anti-drug bill, Congress reauthorized the federal death penalty for certain drug-related murders. The 1994 crime bill signed by President Clinton authorized a death sentence for over 50 new and existing federal crimes.
At the same time that Congress was dusting off the machinery of federal capital punishment, it began to debate measures to limit federal review of state death sentences. Proposals to eviscerate habeas corpus came close to passage in crime bills throughout the early 1990s, but were held at bay by strenuous opposition from senior Democrats on the House Judiciary Committee and members of the Emergency Committee to Save Habeas Corpus, co-chaired by former Attorneys General Katzenbach, Richardson, Levi and Civiletti. Pressure to streamline death row appeals finally found an outlet in the 1996 anti-terrorism bill that followed the Oklahoma City bombing. That same Congress cut off funding for the death penalty resource centers that had provided a modicum of procedural protection for death row inmates in a number of active death penalty jurisdictions.
But by 2000, the climate began to change. The advent of DNA technology demonstrated with scientific precision the fallibility of the criminal justice system. Pioneering legal work and public advocacy by Innocence Project founders Barry Scheck and Peter Neufeld exonerated dozens of long-time prisoners based on post-conviction DNA testing. An overlapping list of wrongly convicted death row inmates – some exonerated by DNA testing, some by non-scientific evidence – began to grow, and soon both lists topped 100. Public pressure that only a few years earlier led to an acceleration of capital punishment now shifted in favor of closer scrutiny of death sentences to protect the innocent.
Senator Patrick Leahy and Congressman William Delahunt both began their political careers as prosecutors, Leahy in Vermont and Delahunt in Massachusetts. Both Democrats are opponents of the death penalty, but they are also savvy legislators. They built alliances with Republican death penalty supporters – Leahy with Senator Gordon Smith of Oregon and Delahunt with Congressman Ray LaHood of Illinois – to advance a package of new statutory protections for capital defendants. They dubbed their proposal the Innocence Protection Act.
Introduction of the IPA in 2000 coincided with the decision of Governor George Ryan to impose a moratorium on executions in Illinois following the exoneration of 13 death row inmates in that state. Ryan attended an early press conference on the Innocence Protection Act and was the star witness at the first House Judiciary Committee hearing on the bill.
During this time, a non-profit organization called The Justice Project – for which I served as outside counsel – developed a grassroots and media campaign to publicize growing concerns about the administration of capital punishment and build support for the Leahy/Delahunt reforms. Eventually dozens of senators and over half of the House cosponsored the bill.
Still, it would require five years of legislative slogging before the IPA would become law. Proponents of reform faced institutional opposition from federal and state prosecutors as well as skepticism from senior Republican members of the Senate and House Judiciary Committees who, only a few years before, had championed the 1996 limits on habeas corpus.
Early versions of the IPA were more wide-ranging than the recently enacted law. From the outset, the two pillars of the bill were expanded access to post-conviction DNA testing and improvements in the systems by which states appoint defense lawyers for indigent capital defendants. But the original IPA also contained other reforms such as limits on the application of the federal death penalty in states that do not authorize capital punishment, improved jury instructions in federal capital cases, and a Sense of Congress that juveniles and the mentally retarded should not be executed. These peripheral proposals dropped out during legislative negotiations over the years.
Moreover, the two central reforms in the bill were significantly altered to obtain the support needed for passage. The original post-conviction DNA testing title invoked section 5 of the Fourteenth Amendment to create an entitlement to scientific testing – without time limits – for inmates with plausible claims of innocence. Similarly, the competent counsel title of the bill established federal counsel standards with which every state would be required to comply, as a condition of the state’s defenses in habeas proceedings. Neither reform survived intact.
The bill sponsors agreed to make compromises at two critical stages. In 2002, negotiations with Senators Arlen Specter (R-PA), Joe Biden (D-DE) and Dianne Feinstein (D-CA) – all strong death penalty supporters – resulted in a version of the bill being reported favorably from the Senate Judiciary Committee. Notably that version of the bill abandoned any linkage between counsel reforms and habeas corpus. Each state authorizing capital punishment would receive funds to improve their counsel systems and those improvements would be enforced through a private right of action in federal court. But a state’s failure to live up to the bill’s requirements would not alter the scope of federal review of its death sentences.
Then in late 2003, the sponsors engaged in intense negotiations with House Judiciary Chairman James Sensenbrenner (R-WI) and Senate Judiciary Chairman Orrin Hatch (R-UT), eventually winning the support of both key members. The price of their support, however, was steep. Rather than a broadly applicable right to post-conviction DNA testing, the compromise bill established a procedure for federal prisoners to obtain testing and conditioned certain federal funds on states enacting similar procedures. And rather than requiring every state to improve their capital counsel systems with enforcement via a private right of action, the 2003 compromise merely authorized a discretionary grant program to help willing states develop improved systems.
Perhaps the most painful compromise to emerge from the 2003 negotiation was the requirement that grants to improve the representation of capital defendants be matched by equal-sized grants to capital prosecutors. While the provision authorizing federal support to capital prosecutors is carefully circumscribed, it represents the first time that the federal government will specifically bolster a state’s resources to carry out capital punishment. Of course only states that accept federal money to improve their defense systems will obtain money for prosecutors.
Even with the support of Sensenbrenner and Hatch, the bill did not become law in 2003. After the new bill was reported favorably by the House Judiciary Committee, Majority Leader Tom DeLay insisted on a special rule to protect the 2001 state law under which Texas had begun to reform its own counsel appointment system. And even after the bill overwhelmingly passed the House packaged with President Bush’s proposal to expand use of the federal DNA database, the Department of Justice nonetheless sent a scathing letter of opposition that emboldened Senate opponents led by Jon Kyl of Arizona.
The IPA only passed the Senate after Chairman Sensenbrenner played legislative hardball by attaching it to highly popular victim’s rights legislation sponsored by Kyl. Even so, opponents were able to win one final concession: a soft time limit on post-conviction DNA testing described below. So altered, the IPA became law as Title IV of H.R. 5107, the Justice for All Act. President Bush signed the bill into law on October 30, 2004, just days before the 2004 election. Were it not for the election, Bush might have vetoed the bill because the Justice Department remained opposed to the bitter end.
Now that the dust has settled, it is possible to examine the final version of the IPA to see whether it lives up to my 2001 prediction in these pages that “enactment of meaningful reform is inevitable.” At the very least, it can be said that the new law plants the seeds of meaningful reform.
In the remainder of this article, I will review the key provisions of the enacted version of the IPA. A fuller description of the act and useful legislative history can be found in Senator Leahy’s floor statement at S11609 of the Congressional Record (November 19, 2004).
Title IV of the Justice For All Act contains two subtitles: Subtitle A enacts a new chapter in the Federal Criminal Code dealing with DNA testing. It establishes rules for when a court shall order post-conviction DNA testing (to be codified at 18 U.S.C. 3600) and rules for when the government may dispose of biological evidence (to be codified at 18 U.S.C. 3600A). Subtitle B authorizes grants to states to improve the quality of legal representation in capital cases.
Under new Section 3600, a federal inmate can obtain post-conviction DNA testing by showing that the testing may produce new material evidence that would raise a reasonable probability that the inmate did not commit the offense for which he is imprisoned. This standard was the subject of difficult negotiations, as members recognized that setting the standard too low could invite frivolous applications, while setting it too high could defeat the purpose of the legislation and result in injustice. In the end, Congress was guided by the principle that the criminal justice system should err on the side of permitting testing.
The bill lists numerous requirements for obtaining a post-conviction DNA test, but none are onerous enough to defeat a meritorious claim. Notably, the applicant must assert his or her innocence under penalty of perjury; the evidence to be tested must have been retained under conditions sufficient to ensure that it was not contaminated; and the applicant must identify a theory of exoneration that is not inconsistent with any affirmative defense presented at trial.
If the applicant was convicted following a trial, the identity of the perpetrator must have been at issue in the trial. If the applicant was convicted following a guilty plea, this requirement does not apply. Congress rightly rejected the Justice Department’s position that inmates who pleaded guilty should be ineligible for DNA testing in light of the many documented cases in which defendants pleaded guilty to crimes they did not commit, due to fear, mental disability, or other reasons.
As noted earlier, the final version of the IPA includes a “soft time limit” on DNA testing. Section 3600 requires that motions for post-conviction DNA testing be made “in a timely fashion.” There is a rebuttable presumption of timeliness if the motion is filed within five years of enactment of the IPA, or three years after the applicant’s conviction, whichever is later. Thereafter it is presumed that a motion is untimely, except upon good cause shown. The good cause exception is intentionally open-ended, and, as Senator Leahy made clear in his November 19 floor statement, should be sufficient to permit any serious claim of innocence to move forward.
This provision is far from a rigid three-year time limit, which is what the Justice Department sought. In rejecting a time limit, Congress recognized the need for a permanent DNA testing law. The need will likely diminish over time as pre-trial DNA testing becomes more prevalent, but there will always be cases that fall through the cracks due to a defense lawyer’s incompetence, a defendant’s mental illness or mental retardation, or other reasons. There should be no statute of limitations on serious claims of innocence.
Of course there can be no post-conviction DNA testing unless biological evidence is preserved. With certain exceptions, new section 3600A requires the preservation of all biological evidence secured in relation to a federal criminal case for as long as any person remains incarcerated in connection with that case unless meaningful notice of imminent destruction is permitted. If the evidence is unusually large or bulky, or if it must be returned to its rightful owner, the government may remove and retain representative portions of the evidence.
While it provides a statutory procedure for federal prisoners to obtain DNA testing, the final bill does not directly establish such a right for state prisoners. However the IPA encourages states that have not already done so to enact evidence retention and post-conviction DNA testing laws of their own. This incentive is created by conditioning certain grant programs authorized in the act on the adoption of state procedures for providing post-conviction DNA testing and preserving biological evidence comparable to the new federal procedures.
The bill also authorizes federal grants to assist states in carrying out post-conviction DNA testing. Fittingly, this new grant program is named in honor of Kirk Bloodsworth, the first death row prisoner exonerated by DNA testing and a major advocate for enactment of the IPA itself.
Post-conviction DNA testing is an essential safeguard that can save innocent lives. But most criminal cases do not involve biological evidence at all. Subtitle B of title IV addresses the predominant cause of wrongful convictions: inadequate defense representation at trial.
Testimony in both the Senate and House Judiciary Committees documented the utter failure of most states to provide competent lawyers to indigent defendants facing the death penalty. Too often individuals facing the ultimate punishment are represented by lawyers who are drunk, sleeping, soon-to-be disbarred, or just plain ineffective. Even the best lawyers in these systems are hampered by inadequate compensation and insufficient investigative resources.
Section 421 of the new law authorizes a federal grant program to improve the quality of legal representation provided to indigent defendants in state capital cases. Grants will be used to establish or improve an “effective system” for providing competent legal representation in capital cases.
The phrase “effective system” is a term of art. It is defined in the new law to mean a system in which a public defender program or other entity establishes capital counsel qualifications, maintains a roster of qualified attorneys, and itself assigns attorneys from the roster in each capital case. The underlying purpose of the scheme is to help insulate the appointment process from the political pressures that make it difficult for trial judges to appoint competent lawyers in individual cases.
The act’s definition of an effective system evolved from standards developed by the American Bar Association and adopted by other standard-setting bodies, such as the Constitution Project’s blue-ribbon commission on capital punishment. While the ABA standards call for an “independent” appointing authority, the word “independent” dropped out of the IPA during negotiations. Still, the law precludes the participation of sitting prosecutors on the panel, although judges may participate. Significantly, Sen. Leahy’s floor statement describes North Carolina and New York, two states that have established relatively independent state-wide entities for this purpose, as models for the national program.
In the course of negotiations to pass the bill in the House last year, sponsors of the bill reluctantly accepted an amendment, now Section 421(e)(1)(C) of the act, that has come to be described as “the Texas carve-out.” Under this provision, a state may qualify for a capital representation improvement grant if it has adopted and substantially complies with a state statutory procedure enacted before the IPA under which the trial judge appoints attorneys from a roster maintained by a state or regional selection committee or similar entity.
In fact, the “Texas carve-out” is not a carve-out at all. It simply acknowledges that Texas is in the process of implementing a recent statewide reform law, the Fair Defense Act of 2001, and should be permitted to continue that process. If Texas is awarded a federal grant it will still be required to improve its capital counsel appointment system, but federal authorities will measure those improvements against standards in the 2001 Texas law.
Texas is not yet living up to the promise of the Fair Defense Act. A November 2003 report by the Equal Justice Center and the Texas Defender Service demonstrates that many Texas counties have failed to establish effective roster systems for identifying qualified lawyers and fail to provide reasonable compensation to capital counsel. If Texas accepts federal funds under this new program, it will be required to live up to its own standards, including a requirement of reasonable compensation.
Indeed, any “effective system” under the new law must provide “reasonable” compensation to capital defense lawyers. Thus, section 421(e)(2)(F)(ii) requires, among other things, that public defenders be compensated according to a salary scale commensurate with the salary scale of the prosecutor’s office in the jurisdiction. This requirement parallels the requirement that capital representation improvement grants are to be divided evenly between the defense and prosecution functions. In these provisions the bill’s sponsors endorsed the concept of resource parity between the defense and the prosecution.
Another important requirement concerning attorney compensation appears in section 421(e)(2)(F)(ii)(II), which states that appointed attorneys be compensated “for actual time and service, computed on an hourly basis and at a reasonable hourly rate in light of the qualifications and experience of the attorney and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases.” Again, this concept is drawn from the American Bar Association standards. This new statutory requirement would clearly preclude a participating state from compensating attorneys under a flat fee or capped fee system, because such a system would not compensate the attorney for “actual time and services, computed on an hourly basis.”
In his November 19 floor statement, Senator Leahy suggested that a state rate comparable to the federal compensation rate of $125 per hour should be considered reasonable in most parts of the country, taking into account regional cost of living differences. “Capital cases are among the most complex, high stakes cases tried in any courthouse, and the lawyers who represent defendants in such cases should be paid at a rate comparable to that earned by other lawyers engaged in similarly important litigation.” Cong. Rec. at S 11614.
For those states that accept funds to improve their defense systems, section 422 authorizes grants to state capital prosecutors. These grants may only be used to implement training programs for capital prosecutors; enforce appropriate standards for prosecutors and assess their performance; establish programs under which prosecutors conduct a systematic review to identify cases in which post-conviction DNA testing is appropriate; and to assist the families of murder victims.
A key limitation on these prosecution grants is that they may not be used “to fund, directly or indirectly, the prosecution of specific capital cases.” They are not to be used to hire additional capital prosecutors. As Senator Leahy said in his floor statement, “the bill’s sponsors intend the grant program to be administered in a way that ensures meaningful improvements in this vital State function. Congress did not create this program to support existing death penalty systems in the States but rather to leverage needed improvements.”
Finally, the requirements of the new grant program are enforced through a unique system of audits by the inspector general of the Department of Justice, informed by public comment. While it would have been preferable for a state’s compliance with federal requirements to be assessed by a federal habeas court, as the original IPA contemplated, the inspector general is an independent voice within the department who can be counted on to render a judgment without political interference.
It is important to acknowledge the limitations of the final IPA, especially the counsel title. Funds may never be appropriated for the new grant program. Even if funds are available, the states most in need of reform may never apply for a grant in order to avoid subjecting the state to federal oversight. Thus, the final version of the Innocence Protection Act amounts to only incremental, potential advances.
Nonetheless, the act establishes a framework for improving the administration of capital punishment and the justice system generally. It creates a foothold in federal law for congressional oversight of state death penalty systems. And most importantly, it represents the first time Congress has recognized flaws in capital punishment and the fallibility of the justice system.
In these ways, the IPA is a turning point in the national debate over the administration of the death penalty reform and the reliability of the criminal justice system as a whole.
As published in the March 2005 edition of the National Association of Criminal Defense Lawyers‘ magazine, The Champion.