STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KYL (for himself, Mr. CHAMBLISS, Mr. CRAIG, Mr. NICKLES, Mr. SESSIONS, and Mr. CORNYN):
S. 1828. A bill to eliminate the substantial backlog of DNA samples collected from crime scenes and convicted offenders, to improve and expand the DNA testing capacity of Federal, State, and local crime laboratories, to increase research and development of new DNA testing technologies, to develop new training programs regarding the collection and use of DNA evidence, and for other purposes; to the Committee on the Judiciary.
Mr. KYL. Mr. President, I rise today to introduce the "Advancing Justice Through DNA Technology Act of 2003." This bill consists of the President's DNA initiative, which will expand and improve DNA databases used for criminal investigations and authorize additional funds to clear the backlog of untested DNA evidence in the nation's crime labs.
This bill offers several advantages over another version of the President's proposal that recently was introduced in the Senate. Today's bill gives States greater leeway in the use of DNA grants, removes arbitrary and unnecessary restrictions on the testing of criminal suspects' DNA samples, authorizes additional funds to clear the backlog of non-DNA forensics evidence, and-most importantly avoids tying this critical program to unrelated and highly controversial anti-death penalty legislation. I include in the record at the end of this statement a news story that describes the nature of the state counsel and other extraneous provisions that others have sought to attach to the President's proposal.
The bill that I introduce today is an unencumbered-and unabridged-ver sion of the President's DNA initiative: the DNA Sexual Assault Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act, which authorize the Debbie Smith DNA Backlog Grant Program and provide $755 million over five years to address the DNA backlog crisis in the nation's crime labs.
Today's bill includes the following improvements over other congressional versions of the President's proposal: First, this bill also expands funding for non-DNA forensics funding. Section 211 of the bill authorizes $100 million in new grant programs to eliminate "the backlog in the analysis of any area of forensic science evidence, including firearms examination, latent prints, toxicology, controlled substances, forensic pathology, questionable documents, and trace evidence."
Second, this bill increases the authorization for the Paul Coverdell grant program, in recognition of the fact that this program never has been funded at more than a small fraction of its authorization. Other congressional versions of the President's DNA initiative only authorize decreasing Coverdell funding in the coming years. This bill resets the clock on the Coverdell program, authorizing 2004 funding at the level for 2001, and subsequent years accordingly. This will allow sharp increases in Coverdell funding in the coming years.
Third, today's bill allows states to test DNA samples from convicts seeking exoneration against the national DNA database, in order to determine if the convict has committed other rapes or murders. The other congressional versions of the President's DNA initiative would bar such testing; they effectively would give convicts a free roll of the dice to challenge their current convictions while protecting them against the risk that they will be linked to other crimes. There is no reason why states should be prevented from solving such other crimes. If DNA evidence is good enough to test a prisoner's conviction for the crimes that we do know that he committed, it also is good enough to establish the prisoner's involvement in crimes that we do not yet know that he committed.
Fourth, this bill includes all Federal felony arrestees in the federal DNA database. Other versions of this bill exclude arrestees and place other unnecessary and arbitrary limits on the federal DNA index. The federal government already maintains fingerprints for all federal felony arrestees-there is no reason to treat DNA evidence differently. Nor is there any reason to prevent states and the federal government from solving other crimes committed by suspects arrested for a federal felony offense.
The Department of Justice has expressly informed Congress of the benefits of casting a wide net when including criminal suspects in the federal DNA database. During a July 17 hearing on the President's DNA initiative before the Crime Subcommittee of the House Judiciary Committee, Sarah Hart, the Director of the National Institute of Justice, testified that:
The efficacy of the DNA identification system depends entirely on the profiles entered into it. Experience demonstrates that broad collection and indexing of DNA samples is critical to the effective use of the DNA technology to solve rapes, murders, and other serious crimes.
The DNA sample that enables law enforcement to identify the perpetrator of a rape, for example, often was not collected in connection with an earlier rape. Rather, in a large proportion of such cases, the sample was taken as a result of the perpetrator's prior conviction for a non-violent crime (such as a burglary, theft, or drug offense).
For example, in Virginia, which has authorized the collection of DNA samples from all felons since 1991, a review of cases in which offenders were linked to sex crimes through DNA matching found that almost 40% of the offenders had no prior convictions for sexual or violent offenses. Most serious offenders do not confine themselves to violent crimes. The experience of States with broad DNA collection regimes demonstrates that DNA databases that include all felons dramatically increase law enforcement's ability to solve serious crimes.
Fifth, today's bill tolls the statute of limitations when a perpetrator has been identified through DNA-including in rape cases. Other congressional versions of the President's initiative inexplicably exclude sexual-assault crimes from the initiative's DNA tolling provision. There is no reason to do so. Indeed, it is in sexual-assault cases that DNA evidence is most likely to identify a perpetrator. At the July 17 hearing before the House Judiciary Committee's Crime Subcommittee, the Department of Justice testified in favor of tolling the statute of limitations to the full extent permitted by the Constitution.
Sixth, this bill allows grants for DNA training and research to be made to prosecutors' organizations, universities, and other private entities. Competing bill versions limit such grants to state and local governments, which is inconsistent with the President's DNA initiative.
Finally, the bill that I introduce today does not include the so-called "Innocence Protection Act" (IPA), a controversial anti-death penalty bill. The other congressional versions of the President's initiative have incorporated the IPA as a third title to the President's bill. At the July 17 hearing on the President's initiative, the Department of Justice made very clear that it "do[es] not believe that legislation embodying the important proposals in the President's DNA initiative should be joined to these controversial [IPA] measures, which intrinsically are unrelated to DNA."
In an October 27 letter to several members of Congress, the National District Attorneys Association also voiced strong objections to the capital-counsel provisions included in the IPA titles of the other bills. The NDAA's letter stated:
Section 321 [of these bills] attempts to re-establish the old 'death penalty resource centers.' As you no doubt recall, Congress abolished funding for such centers because they devolved into organizations dedicated solely to the abolition of the death penalty and were staffed and controlled by those dedicated to the disruption of the criminal justice system by whatever means available, ethical or otherwise. Section 321 would cause a return to such tactics by removing the ability for the state judiciary to appoint counsel in death penalty cases and giving that authority to a self-appointed group of anti-death penalty attorneys.
. . . NDAA strongly urges deletion of Section 321 from this bill . . . .
Elimination of Section 321 . . . keeps the appointment and control of capital defense counsel in the hands of state court judges who are responsible for insuring that defendants receive quality representation. With Section 321 there is no oversight of those individuals selected to develop state standards for capital defense counsel.
The IPA titles included in the other congressional versions of the President's DNA initiative would authorize $500 million in Federal funding for State public defenders in State capital cases. There is no reason for Congress to finance the States' public-defender systems. The States adequately fund these programs themselves-indeed, many have enacted reforms and substantially increased funding for public defenders in recent years. When the IPA originally was introduced in 2000, it was targeted at the State of Texas. In 2001, the Texas legislature enacted reforms that completely overhauled the State's public-defender system. Yet the IPA provisions of the other Senate bill would declare Texas's reforms "ineffective," and would force the State to again replace its indigent-defense system. Such a mandate makes no sense.
Moreover, there is no reason why States cannot or should not fund their own indigent-defender systems. Basic principles of federalism dictate that each level of government should finance its own operations. Once States become accustomed to and budget for Federal funds, they never are able to reject the money (or its conditions) in the future. And Federal funding inevitably comes with increasing Federal strings. In the long run, the States risk losing control over their own public-defender programs. There is no reason to start down this path.
The IPA proposals in the other congressional versions of the President's initiative begin by placing a number of conditions on the states' receipt of federal funds. Among these conditions is that states transfer control over capital defense to an "entity" composed of persons with "demonstrated knowledge and expertise in capital representation." (This means private defense lawyers; public prosecutors likely would be barred by their jobs from serving or would be conflicted out.) This new "entity" would be charged with: (1) setting standards for capital-defense counsel; (2) deciding which lawyers meet those standards; and (3) appointing lawyers from the roster of qualifying attorneys to represent defendants in particular cases.
Essentially, the bill's new "entity" would completely control staffing of the defense in capital cases. From past experience with the "capital resource centers," which were defunded by Congress in 1996, we know that hard-core death penalty opponents tend to gravitate toward these jobs, and will engage in litigation abuse when not supervised. Congress should not require the states to repeat its own past mistakes. It should not place anti-death penalty partisans in charge of public representation of capital defendants.
The other congressional versions of the President's proposal also include these additional highly problematic provisions:
They allow free DNA testing under very low standards. The competing bills provide that DNA tests shall be available to any prisoners if a negative test match would "raise a reasonable probability that the applicant did not commit the offense." This standard is too low. Not all DNA evidence clearly came from the perpetrator of the crime or had anything to do with the crime-for example, a blood spot near the crime scene may or may not have come from the perpetrator. The "reasonable probability" standard means a prisoner could secure a test even if, despite a negative match, the other evidence would still show that the prisoner more likely than not committed the crime. The bill requires only a chance that the prisoner did not commit the crime. Almost every prisoner with material to test will be able to meet this standard. Reopening old cases forces victims and their families to relive the ordeal of the crime. They should not be put through this unless a negative test result could at least show more likely than not that the prisoner did not commit the crime.
During the July 17 hearing before the House Crime Subcommittee, NIJ Director Sarah Hart expressly warned congress of the consequences of applying unduly low DNA testing standards. Director Hart testified:
[W]hile post-conviction DNA testing is necessary to correct erroneous convictions imposed prior to the ready availability of DNA technology, experience also points to the need to ensure that postconviction DNA testing is appropriately designed so as to benefit actually innocent persons, rather than actually guilty criminals who wish to game the system or retaliate against the victims of their crimes. Frequently, the results of postconviction DNA testing sought by prisoners confirm guilt, rather than establishing innocence. In such cases, justice system resources are squandered and the system has been misused to inflict further harm on the crime victim. The recent experience of a local jurisdiction is instructive:
"Twice last month, DNA tests at the police crime lab in St. Louis confirmed the guilt of convicted rapists. Two other tests, last year and in 2001, also showed the right men were behind bars for brutal rapes committed a decade or more earlier.
" [The St. Louis circuit attorney's] staff spent scores of hours and thousands of dollars on those tests. She personally counseled shaking, sobbing victims who were distraught to learn that their traumas were being aired again.
" One victim, she said, became suicidal and then vanished; her family has not heard from her for months. Another, a deaf elderly woman, grew so despondent that her son has not been able to tell her the results of the DNA tests. Every time he raises the issue, she squeezes her eyes shut so that she will not be able to read his lips.
" 'She finally seemed to have some peace about the rape, and now she's gone back to being angry,' the woman's son said.
" DNA tests confirmed that she was raped by Kenneth Charron in 1985, when she was 59. To get that confirmation, however, investigators had to collect a swab of saliva from her so that they could analyze her DNA. They also had to inquire about her sexual past, so they could be sure the semen found in her home was not that of a consensual partner.
" The questioning sent the woman into such depression that she's now on medication. 'None of this needed to happen,' her
son said. "
Post-conviction DNA testing is not without its costs. It should be allowed only in carefully measured circumstances.
Another problematic provision in the other congressional versions of the President's DNA initiative would employ an unduly low standard to authorize new trials for very old cases. This provision of these bills is designed to allow new trials for prisoners who may have been convicted 20 or more years ago. But it is very often impossible to retry a case this old-key witnesses die or disappear or their memories simply fade, and other evidence deteriorates or is lost. For many such cases, ordering a new trial effectively means that the prisoner walks free.
Congress should make sure that there is compelling evidence of innocence before ordering new trials in old cases. Unfortunately, these other bills would allow a new trial if test results simply "establish by a preponderance of the evidence that a new trial would result in an acquittal." The key language here is "result in acquittal." It means a test result would not even have to indicate actual innocence; it need only conflict with other evidence of guilt so as to undermine the jury's ability to convict beyond a reasonable doubt. Prisoners could win new trials-and go free-even if, despite the negative DNA match, other evidence still shows the prisoner very likely committed the crime. Current law, Federal Rule 33, uses the liberal "result in acquittal" standard to allow new trials based on new evidence, but only within three years of trial. It usually is not difficult to retry a case within three years. But for older cases, Congress should insist on a showing of actual innocence before ordering an often-impossible new trial.
There are other problems with the IPA titles in the various congressional versions of the President's DNA initiative. These titles would vastly expand DNA testing by authorizing tests even for prisoners who pleaded guilty. According to the Department of Justice, 90 percent of Federal prisoners pleaded guilty. Extending free tests to these prisoners literally expands the pool of potential test seekers by an order of magnitude. A guilty plea also means that there is no trial record, which makes it much more difficult to assess the potential relevance of DNA-test evidence.
These other bills also impose broad and potentially costly new evidence-retention requirements on the States-requirements that appear to require States to preserve all potential DNA evidence in all cases, indefinitely. And these bills also would give the newly created capital-counsel "entities" an unwarranted degree of control over defense attorneys' budgets. States traditionally have charged courts and other responsible agencies with monitoring budgets for capital representation. Prosecutors do not have unlimited budgets. There is no reason to allow the capital-counsel entity to draw a blank check on State treasuries.
There are other problems with the IPA titles of the competing bills. Suffice it to say that these titles are unrelated to the President's DNA initiative and both the Department of Justice and the NDAA oppose adding them to the President's bill. We should not weigh down the President's DNA initiative with the IPA. For this reason, my colleagues and I today introduce the President's proposal-important, consensus legislation that should be enacted by Congress without delay.
Mr. President, I ask unanimous consent that the text of the bill, the following letter, and the following article all be printed in the RECORD.
There being no objection, the additional material was ordered to be printed in the RECORD, as follows:
BREAK IN TRANSCRIPT
CRIMINAL JUSTICE LEGAL FOUNDATION,
Sacramento, CA, November 5, 2003.
Hon. JON KYL,
DEAR MR. KYL: Recently, the Judiciary Committee approved H.R. 3214, the "Advancing Justice Through DNA Technology Act of 2003." Although the goals of this bill are laudable, one provision in particular is extremely ill-considered, and it will actually operate to obstruct the system rather than improve it. Section 321 should be deleted from the bill.
Section 321 authorizes grants "for the purpose of improving the quality of legal representation provided to indigent defendants in State capital cases." That is certainly a worthy purpose, but this bill will not achieve it. Instead, it is a giant step backward in the direction of the discredited "resource centers" which Congress defunded years ago, after finding that they had become taxpayer-funded nests of saboteurs.
A condition for the grant is that a state establish an "effective system" for capital representation. However, "effective system" is nonsensically defined as one that removes the authority to appoint trial counsel from the trial judge and gives it to a central authority composed of capital defense lawyers.
We saw with the "resource centers" how these capital representation organizations were invariably staffed by hard-core, anti-death-penalty fanatics who saw it as their mission to bring the system to a screeching halt. In an unusual moment of candor, the head of one of the resource centers wrote in a published article that it was the duty of the lawyer to file motions just to "make trouble," Lyon, Defending the Capital Case: What Makes Death Different? 42 Mercer L. Rev. 695, 700 (1991). Such conduct is, of course, clearly unethical. In 1996, Congress finally woke up to what was being done with taxpayer money and defunded the resource centers.
Appointment authority is one of the few checks available against unethical conduct by defense lawyers. The attorney discipline system is toothless. The prosecution cannot appeal on defense misconduct, the way the defense does on prosecutor misconduct. The trial judge's refusal to appoint lawyers who are notorious for obstructionism and other unethical behavior is the most effective deterrent. To remove the appointment authority to an entity full of people who actually encourage such misconduct is a recipe for chaos.
Congress has not removed the appointment authority from federal district judges, for good reason. A number of states have recently implemented improvements to their capital representation systems. These reforms have taken different shapes in different states, as is appropriate for a federal system. Instead of evaluating the different approaches to see which one works best in the real world, section 321 would declare most, if not all, of them "ineffective," and deny defense grants to states that have chosen a different and possibly better path. Section 326 effectively makes a state ineligible for the prosecution grants if it chooses not to change its appointment system to qualify for the defense grants.
Congress should not mandate a single solution without the most careful consideration of the reforms the states have already enacted. The problem of effective counsel is a complex one. It requires more study and more debate before Congress endorses a particular solution. Section 321 of H.R. 3214 is half-baked, and it should be deleted.
KENT S. SCHEIDEGGER,
[From National Review Online, Oct. 29, 2003]
PROTECTION RACKET-CONGRESS PREPARES TO FUND THE ANTI-DEATH-PENALTY LOBBY
(By Ramesh Ponnuru)
Why is a Republican Congress considering a bill to fund anti-death-penalty activists? A bill that could result in murderers going free? A bill that was initially introduced to hurt George W. Bush? Beats me. But that's exactly what Congress is doing.
In early 2000, Democrats were portraying George W. Bush's Texas as a third-world hellhole where the water was dirty, the churches were filled with guns, and the streets ran red with blood of unlucky defendants. A few anecdotes in which public defenders really had been lax in capital murder cases were extrapolated into a critique of law enforcement in the state. At around this time, Senator Patrick Leahy of Vermont and Representative William Delahunt of Massachusetts, both Democrats, introduced the "Innocence Protection Act." Supposedly, the bill was going to keep innocents from getting put on death row by, among other things, providing for better legal defenses for accused capital murderers.
In a modified form, the bill has been made part of the "Advancing Justice Through DNA Technology Act of 2003." Sponsors of the bill include Orrin Hatch and James Sensenbrenner, the chairmen of the House and Senate judiciary committees. The House Judiciary Committee voted for the bill 28-1. Conservative Jeff Flake was the only dissenter.
There are two major problems with the bill. First, its low standard for requiring new trials makes it likely that murderers will go free. The bill says that federal prisoners have a right to a new trial if a DNA test "establish[es] by a preponderance of evidence that a new trial would result in acquittal." This standard is very different from a requirement that the DNA test establish that the prisoner probably did not commit the crime. DNA at a murder scene can, of course, come from a variety of sources. It may be that the jury in the original trial, faced with a negative DNA result, would have found the defendant guilty anyway based on other evidence. But witnesses die and evidence deteriorates. Wait long enough to get a DNA test, and a new trial may be unlikely to yield a conviction even if the defendant actually committed the crime. The "result in acquittal" standard is used to allow new trials based on new evidence-but only within three years of the original trial. This bill has no such time limit. The result is not a reduced sentence, but the defendant's walking.
The second problem is that the bill bribes states to give up control of their public-defender systems. Essentially, the bill would funnel taxpayer dollars to the "capital resource centers" that Congress defunded in 1996, having found that they frequently abused the appeals process. (See pages 53-57 of this report for a long list of examples of such abuses.) Abuses would be likely since state courts, and other branches of state and local government, would no longer have supervisory authority over publicly funded defense counsel. Indeed, supporters of the Innocence Protection Act have been positively enthusiastic about one form of abuse. When Leahy ran the Judiciary Committee last year, it issued a report that said that capital resource centers "may legitimately assert a large number of claims" based on a "reversal of existing law." In other words, it's legitimate for tax-funded public defenders to file a "large number of claims" that are precluded by current law.
Is federal intervention necessary? States have been busy reforming their own capital-defense systems. But the same Leahy report mentioned earlier identified five cases in which ineffective counsel had led innocent people to be sentenced to death. But as the dissenting Republican report pointed out, the five cases Leahy discussed established no such thing. In one of the cases, the defendent was never actually sentenced to death. In three of the cases, it is not at all clear that the defendant was innocent. (Prosecutors declined to retry them because evidence had deteriorated. In one case, for example, the building in which the murder took place had been demolished.) The cases are marked more, in any case, by prosecutorial misconduct than by sloppy defenses.
That's true, by the way, of cases in which actually innocent people have been put on death row. It has generally been because prosecutors relied too much on unreliable evidence, such as the testimony of jailhouse informants, or because police and prosecutors acted in grossly improper ways. (Say hello to our friends in Cook County.) When prosecutors suppress evidence, the most competent defense attorneys will be at a disadvantage. The Innocence Protection Act's capital-defense provisions will not ameliorate that problem. But then, it's more about funneling tax money to opponents of the death penalty than springing truly innocent people from death row.
"What's disgusting is we're actually wasting time fighting this in a Republican Congress," says one Republican Senate staffer.