PUBLIC LAW 108–405—OCT. 30, 2004

JUSTICE FOR ALL ACT OF 2004

118 STAT. 2260 PUBLIC LAW 108–405—OCT. 30, 2004

Public Law 108–405

108th Congress

An Act

To protect crime victims’ rights, 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, to provide postconviction testing of DNA evidence to exonerate the innocent, to improve the

performance of counsel in State capital cases, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Justice for

All Act of 2004’’.

(b) TABLE OF CONTENTS.—The table of contents for this Act

is as follows:

Sec. 1. Short title; table of contents.

TITLE I—SCOTT CAMPBELL, STEPHANIE ROPER, WENDY PRESTON,

LOUARNA GILLIS, AND NILA LYNN CRIME VICTIMS’ RIGHTS ACT

Sec. 101. Short title.

Sec. 102. Crime victims’ rights.

Sec. 103. Increased resources for enforcement of crime victims’ rights.

Sec. 104. Reports.

TITLE II—DEBBIE SMITH ACT OF 2004

Sec. 201. Short title.

Sec. 202. Debbie Smith DNA Backlog Grant Program.

Sec. 203. Expansion of Combined DNA Index System.

Sec. 204. Tolling of statute of limitations.

Sec. 205. Legal assistance for victims of violence.

Sec. 206. Ensuring private laboratory assistance in eliminating DNA backlog.

TITLE III—DNA SEXUAL ASSAULT JUSTICE ACT OF 2004

Sec. 301. Short title.

Sec. 302. Ensuring public crime laboratory compliance with Federal standards.

Sec. 303. DNA training and education for law enforcement, correctional personnel,

and court officers.

Sec. 304. Sexual assault forensic exam program grants.

Sec. 305. DNA research and development.

Sec. 306. National Forensic Science Commission.

Sec. 307. FBI DNA programs.

Sec. 308. DNA identification of missing persons.

Sec. 309. Enhanced criminal penalties for unauthorized disclosure or use of DNA

information.

Sec. 310. Tribal coalition grants.

Sec. 311. Expansion of Paul Coverdell Forensic Sciences Improvement Grant Program.

Sec. 312. Report to Congress.

TITLE IV—INNOCENCE PROTECTION ACT OF 2004

Sec. 401. Short title.

42 USC 13701

note.

Justice for All

Act of 2004.

Oct. 30, 2004

[H.R. 5107]

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2261

Subtitle A—Exonerating the innocent through DNA testing

Sec. 411. Federal post-conviction DNA testing.

Sec. 412. Kirk Bloodsworth Post-Conviction DNA Testing Grant Program.

Sec. 413. Incentive grants to States to ensure consideration of claims of actual innocence.

Subtitle B—Improving the quality of representation in State capital cases

Sec. 421. Capital representation improvement grants.

Sec. 422. Capital prosecution improvement grants.

Sec. 423. Applications.

Sec. 424. State reports.

Sec. 425. Evaluations by Inspector General and administrative remedies.

Sec. 426. Authorization of appropriations.

Subtitle C—Compensation for the wrongfully convicted

Sec. 431. Increased compensation in Federal cases for the wrongfully convicted.

Sec. 432. Sense of Congress regarding compensation in State death penalty cases.

TITLE I—SCOTT CAMPBELL, STEPHANIE

ROPER, WENDY PRESTON, LOUARNA

GILLIS, AND NILA LYNN CRIME VICTIMS’ RIGHTS ACT

SEC. 101. SHORT TITLE.

This title may be cited as the ‘‘Scott Campbell, Stephanie

Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act’’.

SEC. 102. CRIME VICTIMS’ RIGHTS.

(a) AMENDMENT TO TITLE 18.—Part II of title 18, United States

Code, is amended by adding at the end the following:

‘‘CHAPTER 237—CRIME VICTIMS’ RIGHTS

‘‘Sec.

‘‘3771. Crime victims’ rights.

‘‘§ 3771. Crime victims’ rights

‘‘(a) RIGHTS OF CRIME VICTIMS.—A crime victim has the following rights:

‘‘(1) The right to be reasonably protected from the accused.

‘‘(2) The right to reasonable, accurate, and timely notice

of any public court proceeding, or any parole proceeding,

involving the crime or of any release or escape of the accused.

‘‘(3) The right not to be excluded from any such public

court proceeding, unless the court, after receiving clear and

convincing evidence, determines that testimony by the victim

would be materially altered if the victim heard other testimony

at that proceeding.

‘‘(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,

or any parole proceeding.

‘‘(5) The reasonable right to confer with the attorney for

the Government in the case.

‘‘(6) The right to full and timely restitution as provided

in law.

‘‘(7) The right to proceedings free from unreasonable delay.

‘‘(8) The right to be treated with fairness and with respect

for the victim’s dignity and privacy.

18 USC 3771

note.

Scott Campbell,

Stephanie Roper,

Wendy Preston,

Louarna Gillis,

and Nila Lynn

Crime Victims’

Rights Act.

118 STAT. 2262 PUBLIC LAW 108–405—OCT. 30, 2004

‘‘(b) RIGHTS AFFORDED.—In any court proceeding involving an

offense against a crime victim, the court shall ensure that the

crime victim is afforded the rights described in subsection (a).

Before making a determination described in subsection (a)(3), the

court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to

the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be

clearly stated on the record.

‘‘(c) BEST EFFORTS TO ACCORD RIGHTS.— ‘‘(1) GOVERNMENT.—Officers and employees of the Department of Justice and other departments and agencies of the

United States engaged in the detection, investigation, or

prosecution of crime shall make their best efforts to see that

crime victims are notified of, and accorded, the rights described

in subsection (a).

‘‘(2) ADVICE OF ATTORNEY.—The prosecutor shall advise

the crime victim that the crime victim can seek the advice

of an attorney with respect to the rights described in subsection

(a).

‘‘(3) NOTICE.—Notice of release otherwise required pursuant

to this chapter shall not be given if such notice may endanger

the safety of any person.

‘‘(d) ENFORCEMENT AND LIMITATIONS.—

‘‘(1) RIGHTS.—The crime victim or the crime victim’s lawful

representative, and the attorney for the Government may assert

the rights described in subsection (a). A person accused of

the crime may not obtain any form of relief under this chapter.

‘‘(2) MULTIPLE CRIME VICTIMS.—In a case where the court

finds that the number of crime victims makes it impracticable

to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to

give effect to this chapter that does not unduly complicate

or prolong the proceedings.

‘‘(3) MOTION FOR RELIEF AND WRIT OF MANDAMUS.—The

rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the

crime or, if no prosecution is underway, in the district court

in the district in which the crime occurred. The district court

shall take up and decide any motion asserting a victim’s right

forthwith. If the district court denies the relief sought, the

movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order

of a single judge pursuant to circuit rule or the Federal Rules

of Appellate Procedure. The court of appeals shall take up

and decide such application forthwith within 72 hours after

the petition has been filed. In no event shall proceedings be

stayed or subject to a continuance of more than five days

for purposes of enforcing this chapter. If the court of appeals

denies the relief sought, the reasons for the denial shall be

clearly stated on the record in a written opinion.

‘‘(4) ERROR.—In any appeal in a criminal case, the Government may assert as error the district court’s denial of any

crime victim’s right in the proceeding to which the appeal

relates.

‘‘(5) LIMITATION ON RELIEF.—In no case shall a failure

to afford a right under this chapter provide grounds for a

Deadline.

Notification.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2263

new trial. A victim may make a motion to re-open a plea

or sentence only if—

‘‘(A) the victim has asserted the right to be heard

before or during the proceeding at issue and such right

was denied;

‘‘(B) the victim petitions the court of appeals for a

writ of mandamus within 10 days; and

‘‘(C) in the case of a plea, the accused has not pled

to the highest offense charged.

This paragraph does not affect the victim’s right to restitution

as provided in title 18, United States Code.’’.

‘‘(6) NO CAUSE OF ACTION.—Nothing in this chapter shall

be construed to authorize a cause of action for damages or

to create, to enlarge, or to imply any duty or obligation to

any victim or other person for the breach of which the United

States or any of its officers or employees could be held liable

in damages. Nothing in this chapter shall be construed to

impair the prosecutorial discretion of the Attorney General

or any officer under his direction.

‘‘(e) DEFINITIONS.—For the purposes of this chapter, the term

‘crime victim’ means a person directly and proximately harmed

as a result of the commission of a Federal offense or an offense

in the District of Columbia. In the case of a crime victim who

is under 18 years of age, incompetent, incapacitated, or deceased,

the legal guardians of the crime victim or the representatives of

the crime victim’s estate, family members, or any other persons

appointed as suitable by the court, may assume the crime victim’s

rights under this chapter, but in no event shall the defendant

be named as such guardian or representative.

‘‘(f) PROCEDURES TO PROMOTE COMPLIANCE.—

‘‘(1) REGULATIONS.—Not later than 1 year after the date

of enactment of this chapter, the Attorney General of the United

States shall promulgate regulations to enforce the rights of

crime victims and to ensure compliance by responsible officials

with the obligations described in law respecting crime victims.

‘‘(2) CONTENTS.—The regulations promulgated under paragraph (1) shall—

‘‘(A) designate an administrative authority within the

Department of Justice to receive and investigate complaints

relating to the provision or violation of the rights of a

crime victim;

‘‘(B) require a course of training for employees and

offices of the Department of Justice that fail to comply

with provisions of Federal law pertaining to the treatment

of crime victims, and otherwise assist such employees and

offices in responding more effectively to the needs of crime

victims;

‘‘(C) contain disciplinary sanctions, including suspension or termination from employment, for employees of

the Department of Justice who willfully or wantonly fail

to comply with provisions of Federal law pertaining to

the treatment of crime victims; and

‘‘(D) provide that the Attorney General, or the designee

of the Attorney General, shall be the final arbiter of the

complaint, and that there shall be no judicial review of

the final decision of the Attorney General by a complainant.’’.

Deadline.

118 STAT. 2264 PUBLIC LAW 108–405—OCT. 30, 2004

(b) TABLE OF CHAPTERS.—The table of chapters for part II

of title 18, United States Code, is amended by inserting at the

end the following:

‘‘237. Crime victims’ rights .................................................................................... 3771’’.

(c) REPEAL.—Section 502 of the Victims’ Rights and Restitution

Act of 1990 (42 U.S.C. 10606) is repealed.

SEC. 103. INCREASED RESOURCES FOR ENFORCEMENT OF CRIME VICTIMS’ RIGHTS.

(a) CRIME VICTIMS LEGAL ASSISTANCE GRANTS.—The Victims

of Crime Act of 1984 (42 U.S.C. 10601 et seq.) is amended by

inserting after section 1404C the following:

‘‘SEC. 1404D. CRIME VICTIMS LEGAL ASSISTANCE GRANTS.

‘‘(a) IN GENERAL.—The Director may make grants as provided

in section 1404(c)(1)(A) to State, tribal, and local prosecutors’ offices,

law enforcement agencies, courts, jails, and correctional institutions,

and to qualified public and private entities, to develop, establish,

and maintain programs for the enforcement of crime victims’ rights

as provided in law.

‘‘(b) PROHIBITION.—Grant amounts under this section may not

be used to bring a cause of action for damages.

‘‘(c) FALSE CLAIMS ACT.—Notwithstanding any other provision

of law, amounts collected pursuant to sections 3729 through 3731

of title 31, United States Code (commonly known as the ‘False

Claims Act’), may be used for grants under this section, subject

to appropriation.’’.

(b) AUTHORIZATION OF APPROPRIATIONS.—In addition to funds

made available under section 1402(d) of the Victims of Crime Act

of 1984, there are authorized to be appropriated to carry out this

title—

(1) $2,000,000 for fiscal year 2005 and $5,000,000 for each

of fiscal years 2006, 2007, 2008, and 2009 to United States

Attorneys Offices for Victim/Witnesses Assistance Programs;

(2) $2,000,000 for fiscal year 2005 and $5,000,000 in each

of the fiscal years 2006, 2007, 2008, and 2009, to the Office

for Victims of Crime of the Department of Justice for enhancement of the Victim Notification System;

(3) $300,000 in fiscal year 2005 and $500,000 for each

of the fiscal years 2006, 2007, 2008, and 2009, to the Office

for Victims of Crime of the Department of Justice for staff

to administer the appropriation for the support of organizations

as designated under paragraph (4);

(4) $7,000,000 for fiscal year 2005 and $11,000,000 for

each of the fiscal years 2006, 2007, 2008, and 2009, to the

Office for Victims of Crime of the Department of Justice, for

the support of organizations that provide legal counsel and

support services for victims in criminal cases for the enforcement of crime victims’ rights in Federal jurisdictions, and in

States and tribal governments that have laws substantially

equivalent to the provisions of chapter 237 of title 18, United

States Code; and

(5) $5,000,000 for fiscal year 2005 and $7,000,000 for each

of fiscal years 2006, 2007, 2008, and 2009, to the Office for

Victims of Crime of the Department of Justice, for the support

of—

42 USC 10603d.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2265

(A) training and technical assistance to States and

tribal jurisdictions to craft state-of-the-art victims’ rights

laws; and

(B) training and technical assistance to States and

tribal jurisdictions to design a variety of compliance systems, which shall include an evaluation component.

(c) INCREASED RESOURCES TO DEVELOP STATE-OF-THE-ART SYS- TEMS FOR NOTIFYING CRIME VICTIMS OF IMPORTANT DATES AND

DEVELOPMENTS.—The Victims of Crime Act of 1984 (42 U.S.C.

10601 et seq.) is amended by inserting after section 1404D the

following:

‘‘SEC. 1404E. CRIME VICTIMS NOTIFICATION GRANTS.

‘‘(a) IN GENERAL.—The Director may make grants as provided

in section 1404(c)(1)(A) to State, tribal, and local prosecutors’ offices,

law enforcement agencies, courts, jails, and correctional institutions,

and to qualified public or private entities, to develop and implement

state-of-the-art systems for notifying victims of crime of important

dates and developments relating to the criminal proceedings at

issue in a timely and efficient manner, provided that the jurisdiction

has laws substantially equivalent to the provisions of chapter 237

of title 18, United States Code.

‘‘(b) INTEGRATION OF SYSTEMS.—Systems developed and implemented under this section may be integrated with existing case

management systems operated by the recipient of the grant.

‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—In addition to funds

made available under section 1402(d), there are authorized to be

appropriated to carry out this section—

‘‘(1) $5,000,000 for fiscal year 2005; and

‘‘(2) $5,000,000 for each of the fiscal years 2006, 2007,

2008, and 2009.

‘‘(d) FALSE CLAIMS ACT.—Notwithstanding any other provision

of law, amounts collected pursuant to sections 3729 through 3731

of title 31, United States Code (commonly known as the ‘False

Claims Act’), may be used for grants under this section, subject

to appropriation.’’.

SEC. 104. REPORTS.

(a) ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.—

Not later than 1 year after the date of enactment of this Act

and annually thereafter, the Administrative Office of the United

States Courts, for each Federal court, shall report to Congress

the number of times that a right established in chapter 237 of

title 18, United States Code, is asserted in a criminal case and

the relief requested is denied and, with respect to each such denial,

the reason for such denial, as well as the number of times a

mandamus action is brought pursuant to chapter 237 of title 18,

and the result reached.

(b) GOVERNMENT ACCOUNTABILITY OFFICE.—

(1) STUDY.—The Comptroller General shall conduct a study

that evaluates the effect and efficacy of the implementation

of the amendments made by this title on the treatment of

crime victims in the Federal system.

(2) REPORT.—Not later than 4 years after the date of enactment of this Act, the Comptroller General shall prepare and

submit to the appropriate committees a report containing the

results of the study conducted under subsection (a).

Deadline.

Deadline.

18 USC 3771

note.

42 USC 10603e.

118 STAT. 2266 PUBLIC LAW 108–405—OCT. 30, 2004

TITLE II—DEBBIE SMITH ACT OF 2004

SEC. 201. SHORT TITLE.

This title may be cited as the ‘‘Debbie Smith Act of 2004’’.

SEC. 202. DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.

(a) DESIGNATION OF PROGRAM; ELIGIBILITY OF LOCAL GOVERNMENTS AS GRANTEES.—Section 2 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135) is amended—

(1) by amending the heading to read as follows:

‘‘SEC. 2. THE DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.’’;

(2) in subsection (a)—

(A) in the matter preceding paragraph (1)—

(i) by inserting ‘‘or units of local government’’ after

‘‘eligible States’’; and

(ii) by inserting ‘‘or unit of local government’’ after

‘‘State’’;

(B) in paragraph (2), by inserting before the period

at the end the following: ‘‘, including samples from rape

kits, samples from other sexual assault evidence, and samples taken in cases without an identified suspect’’; and

(C) in paragraph (3), by striking ‘‘within the State’’;

(3) in subsection (b)—

(A) in the matter preceding paragraph (1)—

(i) by inserting ‘‘or unit of local government’’ after

‘‘State’’ both places that term appears; and

(ii) by inserting ‘‘, as required by the Attorney

General’’ after ‘‘application shall’’;

(B) in paragraph (1), by inserting ‘‘or unit of local

government’’ after ‘‘State’’;

(C) in paragraph (3), by inserting ‘‘or unit of local

government’’ after ‘‘State’’ the first place that term appears;

(D) in paragraph (4)—

(i) by inserting ‘‘or unit of local government’’ after

‘‘State’’; and

(ii) by striking ‘‘and’’ at the end;

(E) in paragraph (5)—

(i) by inserting ‘‘or unit of local government’’ after

‘‘State’’; and

(ii) by striking the period at the end and inserting

a semicolon; and

(F) by adding at the end the following:

‘‘(6) if submitted by a unit of local government, certify

that the unit of local government has taken, or is taking,

all necessary steps to ensure that it is eligible to include,

directly or through a State law enforcement agency, all analyses

of samples for which it has requested funding in the Combined

DNA Index System; and’’;

(4) in subsection (d)—

(A) in paragraph (1)—

(i) in the matter preceding subparagraph (A), by

striking ‘‘The plan’’ and inserting ‘‘A plan pursuant

to subsection (b)(1)’’;

(ii) in subparagraph (A), by striking ‘‘within the

State’’; and

42 USC 13701

note.

Debbie Smith Act

of 2004.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2267

(iii) in subparagraph (B), by striking ‘‘within the

State’’; and

(B) in paragraph (2)(A), by inserting ‘‘and units of

local government’’ after ‘‘States’’;

(5) in subsection (e)—

(A) in paragraph (1), by inserting ‘‘or local government’’

after ‘‘State’’ both places that term appears; and

(B) in paragraph (2), by inserting ‘‘or unit of local

government’’ after ‘‘State’’;

(6) in subsection (f), in the matter preceding paragraph

(1), by inserting ‘‘or unit of local government’’ after ‘‘State’’;

(7) in subsection (g)—

(A) in paragraph (1), by inserting ‘‘or unit of local

government’’ after ‘‘State’’; and

(B) in paragraph (2), by inserting ‘‘or units of local

government’’ after ‘‘States’’; and

(8) in subsection (h), by inserting ‘‘or unit of local government’’ after ‘‘State’’ both places that term appears.

(b) REAUTHORIZATION AND EXPANSION OF PROGRAM.—Section

2 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.

14135) is amended—

(1) in subsection (a)—

(A) in paragraph (3), by inserting ‘‘(1) or’’ before ‘‘(2)’’;

and

(B) by inserting at the end the following:

‘‘(4) To collect DNA samples specified in paragraph (1).

‘‘(5) To ensure that DNA testing and analysis of samples

from crimes, including sexual assault and other serious violent

crimes, are carried out in a timely manner.’’;

(2) in subsection (b), as amended by this section, by

inserting at the end the following:

‘‘(7) specify that portion of grant amounts that the State

or unit of local government shall use for the purpose specified

in subsection (a)(4).’’;

(3) by amending subsection (c) to read as follows:

‘‘(c) FORMULA FOR DISTRIBUTION OF GRANTS.—

‘‘(1) IN GENERAL.—The Attorney General shall distribute

grant amounts, and establish appropriate grant conditions

under this section, in conformity with a formula or formulas

that are designed to effectuate a distribution of funds among

eligible States and units of local government that—

‘‘(A) maximizes the effective utilization of DNA technology to solve crimes and protect public safety; and

‘‘(B) allocates grants among eligible entities fairly and

efficiently to address jurisdictions in which significant backlogs exist, by considering—

‘‘(i) the number of offender and casework samples

awaiting DNA analysis in a jurisdiction;

‘‘(ii) the population in the jurisdiction; and

‘‘(iii) the number of part 1 violent crimes in the

jurisdiction.

‘‘(2) MINIMUM AMOUNT.—The Attorney General shall allocate to each State not less than 0.50 percent of the total

amount appropriated in a fiscal year for grants under this

section, except that the United States Virgin Islands, American

Samoa, Guam, and the Northern Mariana Islands shall each

be allocated 0.125 percent of the total appropriation.

118 STAT. 2268 PUBLIC LAW 108–405—OCT. 30, 2004

‘‘(3) LIMITATION.—Grant amounts distributed under paragraph (1) shall be awarded to conduct DNA analyses of samples

from casework or from victims of crime under subsection (a)(2)

in accordance with the following limitations:

‘‘(A) For fiscal year 2005, not less than 50 percent

of the grant amounts shall be awarded for purposes under

subsection (a)(2).

‘‘(B) For fiscal year 2006, not less than 50 percent

of the grant amounts shall be awarded for purposes under

subsection (a)(2).

‘‘(C) For fiscal year 2007, not less than 45 percent

of the grant amounts shall be awarded for purposes under

subsection (a)(2).

‘‘(D) For fiscal year 2008, not less than 40 percent

of the grant amounts shall be awarded for purposes under

subsection (a)(2).

‘‘(E) For fiscal year 2009, not less than 40 percent

of the grant amounts shall be awarded for purposes under

subsection (a)(2).’’;

(4) in subsection (g)—

(A) in paragraph (1), by striking ‘‘and’’ at the end;

(B) in paragraph (2), by striking the period at the

end and inserting ‘‘; and’’; and

(C) by adding at the end the following:

‘‘(3) a description of the priorities and plan for awarding

grants among eligible States and units of local government,

and how such plan will ensure the effective use of DNA technology to solve crimes and protect public safety.’’;

(5) in subsection (j), by striking paragraphs (1) and (2)

and inserting the following:

‘‘(1) $151,000,000 for fiscal year 2005;

‘‘(2) $151,000,000 for fiscal year 2006;

‘‘(3) $151,000,000 for fiscal year 2007;

‘‘(4) $151,000,000 for fiscal year 2008; and

‘‘(5) $151,000,000 for fiscal year 2009.’’; and

‘‘(6) by adding at the end the following:

‘‘(k) USE OF FUNDS FOR ACCREDITATION AND AUDITS.—The

Attorney General may distribute not more than 1 percent of the

grant amounts under subsection (j)—

‘‘(1) to States or units of local government to defray the

costs incurred by laboratories operated by each such State

or unit of local government in preparing for accreditation or

reaccreditation;

‘‘(2) in the form of additional grants to States, units of

local government, or nonprofit professional organizations of persons actively involved in forensic science and nationally recognized within the forensic science community—

‘‘(A) to defray the costs of external audits of laboratories operated by such State or unit of local government,

which participates in the National DNA Index System,

to determine whether the laboratory is in compliance with

quality assurance standards;

‘‘(B) to assess compliance with any plans submitted

to the National Institute of Justice, which detail the use

of funds received by States or units of local government

under this Act; and

‘‘(C) to support future capacity building efforts; and

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2269

‘‘(3) in the form of additional grants to nonprofit professional associations actively involved in forensic science and

nationally recognized within the forensic science community

to defray the costs of training persons who conduct external

audits of laboratories operated by States and units of local

government and which participate in the National DNA Index

System.

‘‘(l) USE OF FUNDS FOR OTHER FORENSIC SCIENCES.—The

Attorney General may award a grant under this section to a State

or unit of local government to alleviate a backlog of cases with

respect to a forensic science other than DNA analysis if the State

or unit of local government—

‘‘(1) certifies to the Attorney General that in such State

or unit—

‘‘(A) all of the purposes set forth in subsection (a)

have been met;

‘‘(B) a significant backlog of casework is not waiting

for DNA analysis; and

‘‘(C) there is no need for significant laboratory equipment, supplies, or additional personnel for timely DNA

processing of casework or offender samples; and

‘‘(2) demonstrates to the Attorney General that such State

or unit requires assistance in alleviating a backlog of cases

involving a forensic science other than DNA analysis.

‘‘(m) EXTERNAL AUDITS AND REMEDIAL EFFORTS.—In the event

that a laboratory operated by a State or unit of local government

which has received funds under this Act has undergone an external

audit conducted to determine whether the laboratory is in compliance with standards established by the Director of the Federal

Bureau of Investigation, and, as a result of such audit, identifies

measures to remedy deficiencies with respect to the compliance

by the laboratory with such standards, the State or unit of local

government shall implement any such remediation as soon as practicable.’’.

SEC. 203. EXPANSION OF COMBINED DNA INDEX SYSTEM.

(a) INCLUSION OF ALL DNA SAMPLES FROM STATES.—Section

210304 of the DNA Identification Act of 1994 (42 U.S.C. 14132)

is amended—

(1) in subsection (a)(1), by striking ‘‘of persons convicted

of crimes;’’ and inserting the following: ‘‘of—

‘‘(A) persons convicted of crimes;

‘‘(B) persons who have been charged in an indictment

or information with a crime; and

‘‘(C) other persons whose DNA samples are collected

under applicable legal authorities, provided that DNA profiles from arrestees who have not been charged in an

indictment or information with a crime, and DNA samples

that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index

System;’’; and

(2) in subsection (d)(2)—

(A) by striking ‘‘if the responsible agency’’ and inserting

‘‘if—

‘‘(i) the responsible agency’’;

(B) by striking the period at the end and inserting

‘‘; or’’; and

118 STAT. 2270 PUBLIC LAW 108–405—OCT. 30, 2004

(C) by adding at the end the following:

‘‘(ii) the person has not been convicted of an offense

on the basis of which that analysis was or could have

been included in the index, and all charges for which

the analysis was or could have been included in the index

have been dismissed or resulted in acquittal.’’.

(b) FELONS CONVICTED OF FEDERAL CRIMES.—Section 3(d) of

the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.

14135a(d)) is amended to read as follows:

‘‘(d) QUALIFYING FEDERAL OFFENSES.—The offenses that shall

be treated for purposes of this section as qualifying Federal offenses

are the following offenses, as determined by the Attorney General:

‘‘(1) Any felony.

‘‘(2) Any offense under chapter 109A of title 18, United

States Code.

‘‘(3) Any crime of violence (as that term is defined in

section 16 of title 18, United States Code).

‘‘(4) Any attempt or conspiracy to commit any of the

offenses in paragraphs (1) through (3).’’.

(c) MILITARY OFFENSES.—Section 1565(d) of title 10, United

States Code, is amended to read as follows:

‘‘(d) QUALIFYING MILITARY OFFENSES.—The offenses that shall

be treated for purposes of this section as qualifying military offenses

are the following offenses, as determined by the Secretary of

Defense, in consultation with the Attorney General:

‘‘(1) Any offense under the Uniform Code of Military Justice

for which a sentence of confinement for more than one year

may be imposed.

‘‘(2) Any other offense under the Uniform Code of Military

Justice that is comparable to a qualifying Federal offense (as

determined under section 3(d) of the DNA Analysis Backlog

Elimination Act of 2000 (42 U.S.C. 14135a(d))).’’.

(d) KEYBOARD SEARCHES.—Section 210304 of the DNA Identification Act of 1994 (42 U.S.C. 14132), as amended by subsection

(a), is further amended by adding at the end the following new

subsection:

‘‘(e) AUTHORITY FOR KEYBOARD SEARCHES.—

‘‘(1) IN GENERAL.—The Director shall ensure that any person who is authorized to access the index described in subsection (a) for purposes of including information on DNA identification records or DNA analyses in that index may also access

that index for purposes of carrying out a one-time keyboard

search on information obtained from any DNA sample lawfully

collected for a criminal justice purpose except for a DNA sample

voluntarily submitted solely for elimination purposes.

‘‘(2) DEFINITION.—For purposes of paragraph (1), the term

‘keyboard search’ means a search under which information

obtained from a DNA sample is compared with information

in the index without resulting in the information obtained

from a DNA sample being included in the index.

‘‘(3) NO PREEMPTION.—This subsection shall not be construed to preempt State law.

(e) INCREASED PENALTIES FOR MISUSE OF DNA ANALYSES.—

(1) Section 210305(c)(2) of the DNA Identification Act of 1994 (42

U.S.C. 14133(c)(2)) is amended by striking ‘‘$100,000’’ and inserting

‘‘$250,000, or imprisoned for a period of not more than one year,

or both’’.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2271

(2) Section 10(c) of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135e(c)) is amended by striking ‘‘$100,000’’

and inserting ‘‘$250,000, or imprisoned for a period of not more

than one year, or both’’.

(f) REPORT TO CONGRESS.—If the Department of Justice plans

to modify or supplement the core genetic markers needed for

compatibility with the CODIS system, it shall notify the Judiciary

Committee of the Senate and the Judiciary Committee of the House

of Representatives in writing not later than 180 days before any

change is made and explain the reasons for such change.

SEC. 204. TOLLING OF STATUTE OF LIMITATIONS.

(a) IN GENERAL.—Chapter 213 of title 18, United States Code,

is amended by adding at the end the following:

‘‘§ 3297. Cases involving DNA evidence

‘‘In a case in which DNA testing implicates an identified person

in the commission of a felony, except for a felony offense under

chapter 109A, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution

until a period of time following the implication of the person by

DNA testing has elapsed that is equal to the otherwise applicable

limitation period.’’.

(b) CLERICAL AMENDMENT.—The table of sections for chapter

213 of title 18, United States Code, is amended by adding at

the end the following:

‘‘3297. Cases involving DNA evidence.’’.

(c) APPLICATION.—The amendments made by this section shall

apply to the prosecution of any offense committed before, on, or

after the date of the enactment of this section if the applicable

limitation period has not yet expired.

SEC. 205. LEGAL ASSISTANCE FOR VICTIMS OF VIOLENCE.

Section 1201 of the Violence Against Women Act of 2000 (42

U.S.C. 3796gg–6) is amended—

(1) in subsection (a), by inserting ‘‘dating violence,’’ after

‘‘domestic violence,’’;

(2) in subsection (b)—

(A) by redesignating paragraphs (1) through (3) as

paragraphs (2) through (4), respectively;

(B) by inserting before paragraph (2), as redesignated

by subparagraph (A), the following:

‘‘(1) DATING VIOLENCE.—The term ‘dating violence’ means

violence committed by a person who is or has been in a social

relationship of a romantic or intimate nature with the victim.

The existence of such a relationship shall be determined based

on a consideration of—

‘‘(A) the length of the relationship;

‘‘(B) the type of relationship; and

‘‘(C) the frequency of interaction between the persons

involved in the relationship.’’; and

(C) in paragraph (3), as redesignated by subparagraph

(A), by inserting ‘‘dating violence,’’ after ‘‘domestic

violence,’’;

(3) in subsection (c)—

(A) in paragraph (1)—

(i) by inserting ‘‘, dating violence,’’ after ‘‘between

domestic violence’’; and

18 USC 3297

note.

28 USC 531 note.

118 STAT. 2272 PUBLIC LAW 108–405—OCT. 30, 2004

(ii) by inserting ‘‘dating violence,’’ after ‘‘victims

of domestic violence,’’;

(B) in paragraph (2), by inserting ‘‘dating violence,’’

after ‘‘domestic violence,’’; and

(C) in paragraph (3), by inserting ‘‘dating violence,’’

after ‘‘domestic violence,’’;

(4) in subsection (d)—

(A) in paragraph (1), by inserting ‘‘, dating violence,’’

after ‘‘domestic violence’’;

(B) in paragraph (2), by inserting ‘‘, dating violence,’’

after ‘‘domestic violence’’;

(C) in paragraph (3), by inserting ‘‘, dating violence,’’

after ‘‘domestic violence’’; and

(D) in paragraph (4), by inserting ‘‘dating violence,’’

after ‘‘domestic violence,’’;

(5) in subsection (e), by inserting ‘‘dating violence,’’ after

‘‘domestic violence,’’; and

(6) in subsection (f)(2)(A), by inserting ‘‘dating violence,’’

after ‘‘domestic violence,’’.

SEC. 206. ENSURING PRIVATE LABORATORY ASSISTANCE IN ELIMINATING DNA BACKLOG.

Section 2(d)(3) of the DNA Analysis Backlog Elimination Act

of 2000 (42 U.S.C. 14135(d)(3)) is amended to read as follows:

‘‘(3) USE OF VOUCHERS OR CONTRACTS FOR CERTAIN PURPOSES.—

‘‘(A) IN GENERAL.—A grant for the purposes specified

in paragraph (1), (2), or (5) of subsection (a) may be made

in the form of a voucher or contract for laboratory services,

even if the laboratory makes a reasonable profit for the

services.

‘‘(B) REDEMPTION.—A voucher or contract under

subparagraph (A) may be redeemed at a laboratory operated on a nonprofit or for-profit basis, by a private entity

that satisfies quality assurance standards and has been

approved by the Attorney General.

‘‘(C) PAYMENTS.—The Attorney General may use

amounts authorized under subsection (j) to make payments

to a laboratory described under subparagraph (B).’’.

TITLE III—DNA SEXUAL ASSAULT

JUSTICE ACT OF 2004

SEC. 301. SHORT TITLE.

This title may be cited as the ‘‘DNA Sexual Assault Justice

Act of 2004’’.

SEC. 302. ENSURING PUBLIC CRIME LABORATORY COMPLIANCE WITH

FEDERAL STANDARDS.

Section 210304(b)(2) of the DNA Identification Act of 1994

(42 U.S.C. 14132(b)(2)) is amended to read as follows:

‘‘(2) prepared by laboratories that—

‘‘(A) not later than 2 years after the date of enactment

of the DNA Sexual Assault Justice Act of 2004, have been

accredited by a nonprofit professional association of persons

Deadline.

42 USC 13701

note.

DNA Sexual

Assault Justice

Act of 2004.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2273

actively involved in forensic science that is nationally recognized within the forensic science community; and

‘‘(B) undergo external audits, not less than once every

2 years, that demonstrate compliance with standards established by the Director of the Federal Bureau of Investigation; and’’.

SEC. 303. DNA TRAINING AND EDUCATION FOR LAW ENFORCEMENT,

CORRECTIONAL PERSONNEL, AND COURT OFFICERS.

(a) IN GENERAL.—The Attorney General shall make grants

to provide training, technical assistance, education, and information

relating to the identification, collection, preservation, analysis, and

use of DNA samples and DNA evidence by—

(1) law enforcement personnel, including police officers and

other first responders, evidence technicians, investigators, and

others who collect or examine evidence of crime;

(2) court officers, including State and local prosecutors,

defense lawyers, and judges;

(3) forensic science professionals; and

(4) corrections personnel, including prison and jail personnel, and probation, parole, and other officers involved in

supervision.

(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $12,500,000 for each of fiscal years 2005 through

2009 to carry out this section.

SEC. 304. SEXUAL ASSAULT FORENSIC EXAM PROGRAM GRANTS.

(a) IN GENERAL.—The Attorney General shall make grants

to eligible entities to provide training, technical assistance, education, equipment, and information relating to the identification,

collection, preservation, analysis, and use of DNA samples and

DNA evidence by medical personnel and other personnel, including

doctors, medical examiners, coroners, nurses, victim service providers, and other professionals involved in treating victims of sexual

assault and sexual assault examination programs, including SANE

(Sexual Assault Nurse Examiner), SAFE (Sexual Assault Forensic

Examiner), and SART (Sexual Assault Response Team).

(b) ELIGIBLE ENTITY.—For purposes of this section, the term

‘‘eligible entity’’ includes—

(1) States;

(2) units of local government; and

(3) sexual assault examination programs, including—

(A) sexual assault nurse examiner (SANE) programs;

(B) sexual assault forensic examiner (SAFE) programs;

(C) sexual assault response team (SART) programs;

(D) State sexual assault coalitions;

(E) medical personnel, including doctors, medical examiners, coroners, and nurses, involved in treating victims

of sexual assault; and

(F) victim service providers involved in treating victims

of sexual assault.

(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $30,000,000 for each of fiscal years 2005 through

2009 to carry out this section.

SEC. 305. DNA RESEARCH AND DEVELOPMENT.

(a) IMPROVING DNA TECHNOLOGY.—The Attorney General shall

make grants for research and development to improve forensic

Grants.

42 USC 14136b.

Definition.

42 USC 14136a.

Grants.

42 USC 14136.

118 STAT. 2274 PUBLIC LAW 108–405—OCT. 30, 2004

DNA technology, including increasing the identification accuracy

and efficiency of DNA analysis, decreasing time and expense, and

increasing portability.

(b) DEMONSTRATION PROJECTS.—The Attorney General shall

make grants to appropriate entities under which research is carried

out through demonstration projects involving coordinated training

and commitment of resources to law enforcement agencies and

key criminal justice participants to demonstrate and evaluate the

use of forensic DNA technology in conjunction with other forensic

tools. The demonstration projects shall include scientific evaluation

of the public safety benefits, improvements to law enforcement

operations, and cost-effectiveness of increased collection and use

of DNA evidence.

(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $15,000,000 for each of fiscal years 2005 through

2009 to carry out this section.

SEC. 306. NATIONAL FORENSIC SCIENCE COMMISSION.

(a) APPOINTMENT.—The Attorney General shall appoint a

National Forensic Science Commission (in this section referred to

as the ‘‘Commission’’), composed of persons experienced in criminal

justice issues, including persons from the forensic science and

criminal justice communities, to carry out the responsibilities under

subsection (b).

(b) RESPONSIBILITIES.—The Commission shall—

(1) assess the present and future resource needs of the

forensic science community;

(2) make recommendations to the Attorney General for

maximizing the use of forensic technologies and techniques

to solve crimes and protect the public;

(3) identify potential scientific advances that may assist

law enforcement in using forensic technologies and techniques

to protect the public;

(4) make recommendations to the Attorney General for

programs that will increase the number of qualified forensic

scientists available to work in public crime laboratories;

(5) disseminate, through the National Institute of Justice,

best practices concerning the collection and analyses of forensic

evidence to help ensure quality and consistency in the use

of forensic technologies and techniques to solve crimes and

protect the public;

(6) examine additional issues pertaining to forensic science

as requested by the Attorney General;

(7) examine Federal, State, and local privacy protection

statutes, regulations, and practices relating to access to, or

use of, stored DNA samples or DNA analyses, to determine

whether such protections are sufficient;

(8) make specific recommendations to the Attorney General,

as necessary, to enhance the protections described in paragraph

(7) to ensure—

(A) the appropriate use and dissemination of DNA

information;

(B) the accuracy, security, and confidentiality of DNA

information;

(C) the timely removal and destruction of obsolete,

expunged, or inaccurate DNA information; and

42 USC 14136c.

Grants.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2275

(D) that any other necessary measures are taken to

protect privacy; and

(9) provide a forum for the exchange and dissemination

of ideas and information in furtherance of the objectives

described in paragraphs (1) through (8).

(c) PERSONNEL; PROCEDURES.—The Attorney General shall—

(1) designate the Chair of the Commission from among

its members;

(2) designate any necessary staff to assist in carrying out

the functions of the Commission; and

(3) establish procedures and guidelines for the operations

of the Commission.

(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $500,000 for each of fiscal years 2005 through

2009 to carry out this section.

SEC. 307. FBI DNA PROGRAMS.

(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to the Federal Bureau of Investigation

$42,100,000 for each of fiscal years 2005 through 2009 to carry

out the DNA programs and activities described under subsection

(b).

(b) PROGRAMS AND ACTIVITIES.—The Federal Bureau of Investigation may use any amounts appropriated pursuant to subsection

(a) for—

(1) nuclear DNA analysis;

(2) mitochondrial DNA analysis;

(3) regional mitochondrial DNA laboratories;

(4) the Combined DNA Index System;

(5) the Federal Convicted Offender DNA Program; and

(6) DNA research and development.

SEC. 308. DNA IDENTIFICATION OF MISSING PERSONS.

(a) IN GENERAL.—The Attorney General shall make grants

to promote the use of forensic DNA technology to identify missing

persons and unidentified human remains.

(b) REQUIREMENT.—Each State or unit of local government

that receives funding under this section shall be required to submit

the DNA profiles of such missing persons and unidentified human

remains to the National Missing Persons DNA Database of the

Federal Bureau of Investigation.

(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $2,000,000 for each of fiscal years 2005 through

2009 to carry out this section.

SEC. 309. ENHANCED CRIMINAL PENALTIES FOR UNAUTHORIZED

DISCLOSURE OR USE OF DNA INFORMATION.

Section 10(c) of the DNA Analysis Backlog Elimination Act

of 2000 (42 U.S.C. 14135e(c)) is amended to read as follows:

‘‘(c) CRIMINAL PENALTY.—A person who knowingly discloses

a sample or result described in subsection (a) in any manner to

any person not authorized to receive it, or obtains or uses, without

authorization, such sample or result, shall be fined not more than

$250,000, or imprisoned for a period of not more than one year.

Each instance of disclosure, obtaining, or use shall constitute a

separate offense under this subsection.’’.

Grants.

42 USC 14136d.

118 STAT. 2276 PUBLIC LAW 108–405—OCT. 30, 2004

SEC. 310. TRIBAL COALITION GRANTS.

(a) IN GENERAL.—Section 2001 of title I of the Omnibus Crime

Control and Safe Streets Act of 1968 (42 U.S.C. 3796gg) is amended

by adding at the end the following:

‘‘(d) TRIBAL COALITION GRANTS.—

‘‘(1) PURPOSE.—The Attorney General shall award grants

to tribal domestic violence and sexual assault coalitions for

purposes of—

‘‘(A) increasing awareness of domestic violence and

sexual assault against American Indian and Alaska Native

women;

‘‘(B) enhancing the response to violence against American Indian and Alaska Native women at the tribal, Federal, and State levels; and

‘‘(C) identifying and providing technical assistance to

coalition membership and tribal communities to enhance

access to essential services to American Indian women

victimized by domestic and sexual violence.

‘‘(2) GRANTS TO TRIBAL COALITIONS.—The Attorney General

shall award grants under paragraph (1) to—

‘‘(A) established nonprofit, nongovernmental tribal

coalitions addressing domestic violence and sexual assault

against American Indian and Alaska Native women; and

‘‘(B) individuals or organizations that propose to incorporate as nonprofit, nongovernmental tribal coalitions to

address domestic violence and sexual assault against American Indian and Alaska Native women.

‘‘(3) ELIGIBILITY FOR OTHER GRANTS.—Receipt of an award

under this subsection by tribal domestic violence and sexual

assault coalitions shall not preclude the coalition from receiving

additional grants under this title to carry out the purposes

described in subsection (b).’’.

(b) TECHNICAL AMENDMENT.—Effective as of November 2, 2002,

and as if included therein as enacted, Public Law 107–273 (116

Stat. 1789) is amended in section 402(2) by striking ‘‘sections 2006

through 2011’’ and inserting ‘‘sections 2007 through 2011’’.

(c) AMOUNTS.—Section 2007 of the Omnibus Crime Control

and Safe Streets Act of 1968 (as redesignated by section 402(2)

of Public Law 107–273, as amended by subsection (b)) is amended

by amending subsection (b)(4) (42 U.S.C. 3796gg–1(b)(4)) to read

as follows:

‘‘(4) 1⁄54 shall be available for grants under section 2001(d);’’.

SEC. 311. EXPANSION OF PAUL COVERDELL FORENSIC SCIENCES

IMPROVEMENT GRANT PROGRAM.

(a) FORENSIC BACKLOG ELIMINATION GRANTS.—Section 2804

of the Omnibus Crime Control and Safe Streets Act of 1968 (42

U.S.C. 3797m) is amended—

(1) in subsection (a)—

(A) by striking ‘‘shall use the grant to carry out’’ and

inserting ‘‘shall use the grant to do any one or more of

the following:

‘‘(1) To carry out’’; and

(B) by adding at the end the following:

‘‘(2) To eliminate a backlog in the analysis of forensic

science evidence, including firearms examination, latent prints,

42 USC

3796gg–1—

3796gg–5,

3796–1 note.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2277

toxicology, controlled substances, forensic pathology, questionable documents, and trace evidence.

‘‘(3) To train, assist, and employ forensic laboratory personnel, as needed, to eliminate such a backlog.’’;

(2) in subsection (b), by striking ‘‘under this part’’ and

inserting ‘‘for the purpose set forth in subsection (a)(1)’’; and

(3) by adding at the end the following:

‘‘(e) BACKLOG DEFINED.—For purposes of this section, a backlog

in the analysis of forensic science evidence exists if such evidence—

‘‘(1) has been stored in a laboratory, medical examiner’s

office, coroner’s office, law enforcement storage facility, or medical facility; and

‘‘(2) has not been subjected to all appropriate forensic

testing because of a lack of resources or personnel.’’.

(b) EXTERNAL AUDITS.—Section 2802 of the Omnibus Crime

Control and Safe Streets Act of 1968 (42 U.S.C. 3797k) is amended—

(1) in paragraph (2), by striking ‘‘and’’ at the end;

(2) in paragraph (3), by striking the period at the end

and inserting ‘‘; and’’; and

(3) by adding at the end the following:

‘‘(4) a certification that a government entity exists and

an appropriate process is in place to conduct independent

external investigations into allegations of serious negligence

or misconduct substantially affecting the integrity of the

forensic results committed by employees or contractors of any

forensic laboratory system, medical examiner’s office, coroner’s

office, law enforcement storage facility, or medical facility in

the State that will receive a portion of the grant amount.’’.

(c) THREE-YEAR EXTENSION OF AUTHORIZATION OF APPROPRIATIONS.—Section 1001(a)(24) of the Omnibus Crime Control and Safe

Streets Act of 1968 (42 U.S.C. 3793(a)(24)) is amended—

(1) in subparagraph (E), by striking ‘‘and’’ at the end;

(2) in subparagraph (F), by striking the period at the end

and inserting a semicolon; and

(3) by adding at the end the following:

‘‘(G) $20,000,000 for fiscal year 2007;

‘‘(H) $20,000,000 for fiscal year 2008; and

‘‘(I) $20,000,000 for fiscal year 2009.’’.

(d) TECHNICAL AMENDMENT.—Section 1001(a) of such Act, as

amended by subsection (c), is further amended by realigning paragraphs (24) and (25) so as to be flush with the left margin.

SEC. 312. REPORT TO CONGRESS.

(a) IN GENERAL.—Not later than 2 years after the date of

enactment of this Act, the Attorney General shall submit to Congress a report on the implementation of this title and title II

and the amendments made by this title and title II.

(b) CONTENTS.—The report submitted under subsection (a) shall

include a description of—

(1) the progress made by Federal, State, and local entities

in—

(A) collecting and entering DNA samples from

offenders convicted of qualifying offenses for inclusion in

the Combined DNA Index System (referred to in this subsection as ‘‘CODIS’’);

(B) analyzing samples from crime scenes, including

evidence collected from sexual assaults and other serious

Certification.

118 STAT. 2278 PUBLIC LAW 108–405—OCT. 30, 2004

violent crimes, and entering such DNA analyses in CODIS;

and

(C) increasing the capacity of forensic laboratories to

conduct DNA analyses;

(2) the priorities and plan for awarding grants among

eligible States and units of local government to ensure that

the purposes of this title and title II are carried out;

(3) the distribution of grant amounts under this title and

title II among eligible States and local governments, and

whether the distribution of such funds has served the purposes

of the Debbie Smith DNA Backlog Grant Program;

(4) grants awarded and the use of such grants by eligible

entities for DNA training and education programs for law

enforcement, correctional personnel, court officers, medical personnel, victim service providers, and other personnel authorized

under sections 303 and 304;

(5) grants awarded and the use of such grants by eligible

entities to conduct DNA research and development programs

to improve forensic DNA technology, and implement demonstration projects under section 305;

(6) the steps taken to establish the National Forensic

Science Commission, and the activities of the Commission under

section 306;

(7) the use of funds by the Federal Bureau of Investigation

under section 307;

(8) grants awarded and the use of such grants by eligible

entities to promote the use of forensic DNA technology to identify missing persons and unidentified human remains under

section 308;

(9) grants awarded and the use of such grants by eligible

entities to eliminate forensic science backlogs under the amendments made by section 311;

(10) State compliance with the requirements set forth in

section 313; and

(11) any other matters considered relevant by the Attorney

General.

TITLE IV—INNOCENCE PROTECTION

ACT OF 2004

SEC. 401. SHORT TITLE.

This title may be cited as the ‘‘Innocence Protection Act of

2004’’.

Subtitle A—Exonerating the Innocent

Through DNA Testing

SEC. 411. FEDERAL POST-CONVICTION DNA TESTING.

(a) FEDERAL CRIMINAL PROCEDURE.—

(1) IN GENERAL.—Part II of title 18, United States Code,

is amended by inserting after chapter 228 the following:

18 USC 3600

note.

Innocence

Protection Act of

2004.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2279

‘‘CHAPTER 228A—POST-CONVICTION DNA TESTING

‘‘Sec.

‘‘3600. DNA testing.

‘‘3600A. Preservation of biological evidence.

‘‘§ 3600. DNA testing

‘‘(a) IN GENERAL.—Upon a written motion by an individual

under a sentence of imprisonment or death pursuant to a conviction

for a Federal offense (referred to in this section as the ‘applicant’),

the court that entered the judgment of conviction shall order DNA

testing of specific evidence if the court finds that all of the following

apply:

‘‘(1) The applicant asserts, under penalty of perjury, that

the applicant is actually innocent of—

‘‘(A) the Federal offense for which the applicant is

under a sentence of imprisonment or death; or

‘‘(B) another Federal or State offense, if—

‘‘(i) evidence of such offense was admitted during

a Federal death sentencing hearing and exoneration

of such offense would entitle the applicant to a reduced

sentence or new sentencing hearing; and

‘‘(ii) in the case of a State offense—

‘‘(I) the applicant demonstrates that there is

no adequate remedy under State law to permit

DNA testing of the specified evidence relating to

the State offense; and

‘‘(II) to the extent available, the applicant has

exhausted all remedies available under State law

for requesting DNA testing of specified evidence

relating to the State offense.

‘‘(2) The specific evidence to be tested was secured in relation to the investigation or prosecution of the Federal or State

offense referenced in the applicant’s assertion under paragraph

(1).

‘‘(3) The specific evidence to be tested—

‘‘(A) was not previously subjected to DNA testing and

the applicant did not—

‘‘(i) knowingly and voluntarily waive the right to

request DNA testing of that evidence in a court proceeding after the date of enactment of the Innocence

Protection Act of 2004; or

‘‘(ii) knowingly fail to request DNA testing of that

evidence in a prior motion for postconviction DNA

testing; or

‘‘(B) was previously subjected to DNA testing and the

applicant is requesting DNA testing using a new method

or technology that is substantially more probative than

the prior DNA testing.

‘‘(4) The specific evidence to be tested is in the possession

of the Government and has been subject to a chain of custody

and retained under conditions sufficient to ensure that such

evidence has not been substituted, contaminated, tampered

with, replaced, or altered in any respect material to the proposed DNA testing.

‘‘(5) The proposed DNA testing is reasonable in scope, uses

scientifically sound methods, and is consistent with accepted

forensic practices.

Applicability.

118 STAT. 2280 PUBLIC LAW 108–405—OCT. 30, 2004

‘‘(6) The applicant identifies a theory of defense that—

‘‘(A) is not inconsistent with an affirmative defense

presented at trial; and

‘‘(B) would establish the actual innocence of the

applicant of the Federal or State offense referenced in

the applicant’s assertion under paragraph (1).

‘‘(7) If the applicant was convicted following a trial, the

identity of the perpetrator was at issue in the trial.

‘‘(8) The proposed DNA testing of the specific evidence

may produce new material evidence that would—

‘‘(A) support the theory of defense referenced in paragraph (6); and

‘‘(B) raise a reasonable probability that the applicant

did not commit the offense.

‘‘(9) The applicant certifies that the applicant will provide

a DNA sample for purposes of comparison.

‘‘(10) The motion is made in a timely fashion, subject to

the following conditions:

‘‘(A) There shall be a rebuttable presumption of timeliness if the motion is made within 60 months of enactment

of the Justice For All Act of 2004 or within 36 months

of conviction, whichever comes later. Such presumption

may be rebutted upon a showing—

‘‘(i) that the applicant’s motion for a DNA test

is based solely upon information used in a previously

denied motion; or

‘‘(ii) of clear and convincing evidence that the

applicant’s filing is done solely to cause delay or harass.

‘‘(B) There shall be a rebuttable presumption against

timeliness for any motion not satisfying subparagraph (A)

above. Such presumption may be rebutted upon the court’s

finding—

‘‘(i) that the applicant was or is incompetent and

such incompetence substantially contributed to the

delay in the applicant’s motion for a DNA test;

‘‘(ii) the evidence to be tested is newly discovered

DNA evidence;

‘‘(iii) that the applicant’s motion is not based solely

upon the applicant’s own assertion of innocence and,

after considering all relevant facts and circumstances

surrounding the motion, a denial would result in a

manifest injustice; or

‘‘(iv) upon good cause shown.

‘‘(C) For purposes of this paragraph—

‘‘(i) the term ‘incompetence’ has the meaning as

defined in section 4241 of title 18, United States Code;

‘‘(ii) the term ‘manifest’ means that which is

unmistakable, clear, plain, or indisputable and requires

that the opposite conclusion be clearly evident.

‘‘(b) NOTICE TO THE GOVERNMENT; PRESERVATION ORDER;

APPOINTMENT OF COUNSEL.—

‘‘(1) NOTICE.—Upon the receipt of a motion filed under

subsection (a), the court shall—

‘‘(A) notify the Government; and

‘‘(B) allow the Government a reasonable time period

to respond to the motion.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2281

‘‘(2) PRESERVATION ORDER.—To the extent necessary to

carry out proceedings under this section, the court shall direct

the Government to preserve the specific evidence relating to

a motion under subsection (a).

‘‘(3) APPOINTMENT OF COUNSEL.—The court may appoint

counsel for an indigent applicant under this section in the

same manner as in a proceeding under section 3006A(a)(2)(B).

‘‘(c) TESTING PROCEDURES.— ‘‘(1) IN GENERAL.—The court shall direct that any DNA

testing ordered under this section be carried out by the Federal

Bureau of Investigation.

‘‘(2) EXCEPTION.—Notwithstanding paragraph (1), the court

may order DNA testing by another qualified laboratory if the

court makes all necessary orders to ensure the integrity of

the specific evidence and the reliability of the testing process

and test results.

‘‘(3) COSTS.—The costs of any DNA testing ordered under

this section shall be paid—

‘‘(A) by the applicant; or

‘‘(B) in the case of an applicant who is indigent, by

the Government.

‘‘(d) TIME LIMITATION IN CAPITAL CASES.—In any case in which

the applicant is sentenced to death—

‘‘(1) any DNA testing ordered under this section shall be

completed not later than 60 days after the date on which

the Government responds to the motion filed under subsection

(a); and

‘‘(2) not later than 120 days after the date on which the

DNA testing ordered under this section is completed, the court

shall order any post-testing procedures under subsection (f)

or (g), as appropriate.

‘‘(e) REPORTING OF TEST RESULTS.—

‘‘(1) IN GENERAL.—The results of any DNA testing ordered

under this section shall be simultaneously disclosed to the

court, the applicant, and the Government.

‘‘(2) NDIS.—The Government shall submit any test results

relating to the DNA of the applicant to the National DNA

Index System (referred to in this subsection as ‘NDIS’).

‘‘(3) RETENTION OF DNA SAMPLE.—

‘‘(A) ENTRY INTO NDIS.—If the DNA test results

obtained under this section are inconclusive or show that

the applicant was the source of the DNA evidence, the

DNA sample of the applicant may be retained in NDIS.

‘‘(B) MATCH WITH OTHER OFFENSE.—If the DNA test

results obtained under this section exclude the applicant

as the source of the DNA evidence, and a comparison

of the DNA sample of the applicant results in a match

between the DNA sample of the applicant and another

offense, the Attorney General shall notify the appropriate

agency and preserve the DNA sample of the applicant.

‘‘(C) NO MATCH.—If the DNA test results obtained

under this section exclude the applicant as the source

of the DNA evidence, and a comparison of the DNA sample

of the applicant does not result in a match between the

DNA sample of the applicant and another offense, the

Attorney General shall destroy the DNA sample of the

applicant and ensure that such information is not retained

Deadlines.

118 STAT. 2282 PUBLIC LAW 108–405—OCT. 30, 2004

in NDIS if there is no other legal authority to retain

the DNA sample of the applicant in NDIS.

‘‘(f) POST-TESTING PROCEDURES; INCONCLUSIVE AND INCULPATORY RESULTS.—

‘‘(1) INCONCLUSIVE RESULTS.—If DNA test results obtained

under this section are inconclusive, the court may order further

testing, if appropriate, or may deny the applicant relief.

‘‘(2) INCULPATORY RESULTS.—If DNA test results obtained

under this section show that the applicant was the source

of the DNA evidence, the court shall—

‘‘(A) deny the applicant relief; and

‘‘(B) on motion of the Government—

‘‘(i) make a determination whether the applicant’s

assertion of actual innocence was false, and, if the

court makes such a finding, the court may hold the

applicant in contempt;

‘‘(ii) assess against the applicant the cost of any

DNA testing carried out under this section;

‘‘(iii) forward the finding to the Director of the

Bureau of Prisons, who, upon receipt of such a finding,

may deny, wholly or in part, the good conduct credit

authorized under section 3632 on the basis of that

finding;

‘‘(iv) if the applicant is subject to the jurisdiction

of the United States Parole Commission, forward the

finding to the Commission so that the Commission

may deny parole on the basis of that finding; and

‘‘(v) if the DNA test results relate to a State

offense, forward the finding to any appropriate State

official.

‘‘(3) SENTENCE.—In any prosecution of an applicant under

chapter 79 for false assertions or other conduct in proceedings

under this section, the court, upon conviction of the applicant,

shall sentence the applicant to a term of imprisonment of

not less than 3 years, which shall run consecutively to any

other term of imprisonment the applicant is serving.

‘‘(g) POST-TESTING PROCEDURES; MOTION FOR NEW TRIAL OR

RESENTENCING.—

‘‘(1) IN GENERAL.—Notwithstanding any law that would

bar a motion under this paragraph as untimely, if DNA test

results obtained under this section exclude the applicant as

the source of the DNA evidence, the applicant may file a

motion for a new trial or resentencing, as appropriate. The

court shall establish a reasonable schedule for the applicant

to file such a motion and for the Government to respond to

the motion.

‘‘(2) STANDARD FOR GRANTING MOTION FOR NEW TRIAL OR

RESENTENCING.—The court shall grant the motion of the

applicant for a new trial or resentencing, as appropriate, if

the DNA test results, when considered with all other evidence

in the case (regardless of whether such evidence was introduced

at trial), establish by compelling evidence that a new trial

would result in an acquittal of—

‘‘(A) in the case of a motion for a new trial, the Federal

offense for which the applicant is under a sentence of

imprisonment or death; and

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2283

‘‘(B) in the case of a motion for resentencing, another

Federal or State offense, if evidence of such offense was

admitted during a Federal death sentencing hearing and

exoneration of such offense would entitle the applicant

to a reduced sentence or a new sentencing proceeding.

‘‘(h) OTHER LAWS UNAFFECTED.—

‘‘(1) POST-CONVICTION RELIEF.—Nothing in this section shall

affect the circumstances under which a person may obtain

DNA testing or post-conviction relief under any other law.

‘‘(2) HABEAS CORPUS.—Nothing in this section shall provide

a basis for relief in any Federal habeas corpus proceeding.

‘‘(3) NOT A MOTION UNDER SECTION 2255.—A motion under

this section shall not be considered to be a motion under section

2255 for purposes of determining whether the motion or any

other motion is a second or successive motion under section

2255.

‘‘§ 3600A. Preservation of biological evidence

‘‘(a) IN GENERAL.—Notwithstanding any other provision of law,

the Government shall preserve biological evidence that was secured

in the investigation or prosecution of a Federal offense, if a defendant is under a sentence of imprisonment for such offense.

‘‘(b) DEFINED TERM.—For purposes of this section, the term

‘biological evidence’ means—

‘‘(1) a sexual assault forensic examination kit; or

‘‘(2) semen, blood, saliva, hair, skin tissue, or other identified biological material.

‘‘(c) APPLICABILITY.—Subsection (a) shall not apply if—

‘‘(1) a court has denied a request or motion for DNA testing

of the biological evidence by the defendant under section 3600,

and no appeal is pending;

‘‘(2) the defendant knowingly and voluntarily waived the

right to request DNA testing of the biological evidence in a

court proceeding conducted after the date of enactment of the

Innocence Protection Act of 2004;

‘‘(3) after a conviction becomes final and the defendant

has exhausted all opportunities for direct review of the conviction, the defendant is notified that the biological evidence may

be destroyed and the defendant does not file a motion under

section 3600 within 180 days of receipt of the notice;

‘‘(4)(A) the evidence must be returned to its rightful owner,

or is of such a size, bulk, or physical character as to render

retention impracticable; and

‘‘(B) the Government takes reasonable measures to remove

and preserve portions of the material evidence sufficient to

permit future DNA testing; or

‘‘(5) the biological evidence has already been subjected to

DNA testing under section 3600 and the results included the

defendant as the source of such evidence.

‘‘(d) OTHER PRESERVATION REQUIREMENT.—Nothing in this section shall preempt or supersede any statute, regulation, court order,

or other provision of law that may require evidence, including

biological evidence, to be preserved.

‘‘(e) REGULATIONS.—Not later than 180 days after the date

of enactment of the Innocence Protection Act of 2004, the Attorney

General shall promulgate regulations to implement and enforce

Deadline.

118 STAT. 2284 PUBLIC LAW 108–405—OCT. 30, 2004

this section, including appropriate disciplinary sanctions to ensure

that employees comply with such regulations.

‘‘(f) CRIMINAL PENALTY.—Whoever knowingly and intentionally

destroys, alters, or tampers with biological evidence that is required

to be preserved under this section with the intent to prevent that

evidence from being subjected to DNA testing or prevent the production or use of that evidence in an official proceeding, shall be

fined under this title, imprisoned for not more than 5 years, or

both.

‘‘(g) HABEAS CORPUS.—Nothing in this section shall provide

a basis for relief in any Federal habeas corpus proceeding.’’.

(2) CLERICAL AMENDMENT.—The chapter analysis for part

II of title 18, United States Code, is amended by inserting

after the item relating to chapter 228 the following: ‘‘228A. Post-conviction DNA testing ............................................................... 3600’’.

(b) SYSTEM FOR REPORTING MOTIONS.—

(1) ESTABLISHMENT.—The Attorney General shall establish

a system for reporting and tracking motions filed in accordance

with section 3600 of title 18, United States Code.

(2) OPERATION.—In operating the system established under

paragraph (1), the Federal courts shall provide to the Attorney

General any requested assistance in operating such a system

and in ensuring the accuracy and completeness of information

included in that system.

(3) REPORT.—Not later than 2 years after the date of enactment of this Act, the Attorney General shall submit a report

to Congress that contains—

(A) a list of motions filed under section 3600 of title

18, United States Code, as added by this title;

(B) whether DNA testing was ordered pursuant to

such a motion;

(C) whether the applicant obtained relief on the basis

of DNA test results; and

(D) whether further proceedings occurred following a

granting of relief and the outcome of such proceedings.

(4) ADDITIONAL INFORMATION.—The report required to be

submitted under paragraph (3) may include any other information the Attorney General determines to be relevant in

assessing the operation, utility, or costs of section 3600 of

title 18, United States Code, as added by this title, and any

recommendations the Attorney General may have relating to

future legislative action concerning that section.

(c) EFFECTIVE DATE; APPLICABILITY.—This section and the

amendments made by this section shall take effect on the date

of enactment of this Act and shall apply with respect to any offense

committed, and to any judgment of conviction entered, before, on,

or after that date of enactment.

SEC. 412. KIRK BLOODSWORTH POST-CONVICTION DNA TESTING

GRANT PROGRAM.

(a) IN GENERAL.—The Attorney General shall establish the

Kirk Bloodsworth Post-Conviction DNA Testing Grant Program to

award grants to States to help defray the costs of post-conviction

DNA testing.

(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated $5,000,000 for each of fiscal years 2005 through

2009 to carry out this section.

42 USC 14136e.

18 USC 3600

note.

18 USC 3600

note.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2285

(c) STATE DEFINED.—For purposes of this section, the term

‘‘State’’ means a State of the United States, the District of Columbia,

the Commonwealth of Puerto Rico, the United States Virgin Islands,

American Samoa, Guam, and the Northern Mariana Islands.

SEC. 413. INCENTIVE GRANTS TO STATES TO ENSURE CONSIDERATION

OF CLAIMS OF ACTUAL INNOCENCE.

For each of fiscal years 2005 through 2009, all funds appropriated to carry out sections 303, 305, 308, and 412 shall be reserved

for grants to eligible entities that—

(1) meet the requirements under section 303, 305, 308,

or 412, as appropriate; and

(2) demonstrate that the State in which the eligible entity

operates—

(A) provides post-conviction DNA testing of specified

evidence—

(i) under a State statute enacted before the date

of enactment of this Act (or extended or renewed after

such date), to persons convicted after trial and under

a sentence of imprisonment or death for a State felony

offense, in a manner that ensures a reasonable process

for resolving claims of actual innocence; or

(ii) under a State statute enacted after the date

of enactment of this Act, or under a State rule, regulation, or practice, to persons under a sentence of imprisonment or death for a State felony offense, in a manner

comparable to section 3600(a) of title 18, United States

Code (provided that the State statute, rule, regulation,

or practice may make post-conviction DNA testing

available in cases in which such testing is not required

by such section), and if the results of such testing

exclude the applicant, permits the applicant to apply

for post-conviction relief, notwithstanding any provision of law that would otherwise bar such application

as untimely; and

(B) preserves biological evidence secured in relation

to the investigation or prosecution of a State offense—

(i) under a State statute or a State or local rule,

regulation, or practice, enacted or adopted before the

date of enactment of this Act (or extended or renewed

after such date), in a manner that ensures that reasonable measures are taken by all jurisdictions within

the State to preserve such evidence; or

(ii) under a State statute or a State or local rule,

regulation, or practice, enacted or adopted after the

date of enactment of this Act, in a manner comparable

to section 3600A of title 18, United States Code, if—

(I) all jurisdictions within the State comply

with this requirement; and

(II) such jurisdictions may preserve such evidence for longer than the period of time that such

evidence would be required to be preserved under

such section 3600A.

42 USC 14136

note.

118 STAT. 2286 PUBLIC LAW 108–405—OCT. 30, 2004

Subtitle B—Improving the Quality of

Representation in State Capital Cases

SEC. 421. CAPITAL REPRESENTATION IMPROVEMENT GRANTS.

(a) IN GENERAL.—The Attorney General shall award grants

to States for the purpose of improving the quality of legal representation provided to indigent defendants in State capital cases.

(b) DEFINED TERM.—In this section, the term ‘‘legal representation’’ means legal counsel and investigative, expert, and other services necessary for competent representation.

(c) USE OF FUNDS.—Grants awarded under subsection (a)—

(1) shall be used to establish, implement, or improve an

effective system for providing competent legal representation

to—

(A) indigents charged with an offense subject to capital

punishment;

(B) indigents who have been sentenced to death and

who seek appellate or collateral relief in State court; and

(C) indigents who have been sentenced to death and

who seek review in the Supreme Court of the United States;

and

(2) shall not be used to fund, directly or indirectly, representation in specific capital cases.

(d) APPORTIONMENT OF FUNDS.— (1) IN GENERAL.—Of the funds awarded under subsection

(a)—

(A) not less than 75 percent shall be used to carry

out the purpose described in subsection (c)(1)(A); and

(B) not more than 25 percent shall be used to carry

out the purpose described in subsection (c)(1)(B).

(2) WAIVER.—The Attorney General may waive the requirement under this subsection for good cause shown.

(e) EFFECTIVE SYSTEM.—As used in subsection (c)(1), an effective system for providing competent legal representation is a system

that—

(1) invests the responsibility for appointing qualified attorneys to represent indigents in capital cases—

(A) in a public defender program that relies on staff

attorneys, members of the private bar, or both, to provide

representation in capital cases;

(B) in an entity established by statute or by the highest

State court with jurisdiction in criminal cases, which is

composed of individuals with demonstrated knowledge and

expertise in capital cases, except for individuals currently

employed as prosecutors; or

(C) pursuant to a statutory procedure enacted before

the date of the enactment of this Act under which the

trial judge is required to appoint qualified attorneys from

a roster maintained by a State or regional selection committee or similar entity; and

(2) requires the program described in paragraph (1)(A),

the entity described in paragraph (1)(B), or an appropriate

entity designated pursuant to the statutory procedure described

in paragraph (1)(C), as applicable, to—

(A) establish qualifications for attorneys who may be

appointed to represent indigents in capital cases;

42 USC 14163.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2287

(B) establish and maintain a roster of qualified attorneys;

(C) except in the case of a selection committee or

similar entity described in paragraph (1)(C), assign 2 attorneys from the roster to represent an indigent in a capital

case, or provide the trial judge a list of not more than

2 pairs of attorneys from the roster, from which 1 pair

shall be assigned, provided that, in any case in which

the State elects not to seek the death penalty, a court

may find, subject to any requirement of State law, that

a second attorney need not remain assigned to represent

the indigent to ensure competent representation;

(D) conduct, sponsor, or approve specialized training

programs for attorneys representing defendants in capital

cases;

(E)(i) monitor the performance of attorneys who are

appointed and their attendance at training programs; and

‘‘(ii) remove from the roster attorneys who—

‘‘(I) fail to deliver effective representation or

engage in unethical conduct;

‘‘(II) fail to comply with such requirements as such

program, entity, or selection committee or similar

entity may establish regarding participation in training

programs; or

‘‘(III) during the past 5 years, have been sanctioned

by a bar association or court for ethical misconduct

relating to the attorney’s conduct as defense counsel

in a criminal case in Federal or State court; and

(F) ensure funding for the cost of competent legal representation by the defense team and outside experts

selected by counsel, who shall be compensated—

(i) in the case of a State that employs a statutory

procedure described in paragraph (1)(C), in accordance

with the requirements of that statutory procedure; and

(ii) in all other cases, as follows:

(I) Attorneys employed by a public defender

program shall be compensated according to a

salary scale that is commensurate with the salary

scale of the prosecutor’s office in the jurisdiction.

(II) Appointed attorneys shall 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.

(III) Non-attorney members of the defense

team, including investigators, mitigation specialists, and experts, shall be compensated at a rate

that reflects the specialized skills needed by those

who assist counsel with the litigation of death

penalty cases.

(IV) Attorney and non-attorney members of

the defense team shall be reimbursed for reasonable incidental expenses.

118 STAT. 2288 PUBLIC LAW 108–405—OCT. 30, 2004

SEC. 422. CAPITAL PROSECUTION IMPROVEMENT GRANTS.

(a) IN GENERAL.—The Attorney General shall award grants

to States for the purpose of enhancing the ability of prosecutors

to effectively represent the public in State capital cases.

(b) USE OF FUNDS.—

(1) PERMITTED USES.—Grants awarded under subsection

(a) shall be used for one or more of the following:

(A) To design and implement training programs for

State and local prosecutors to ensure effective representation in State capital cases.

(B) To develop and implement appropriate standards

and qualifications for State and local prosecutors who litigate State capital cases.

(C) To assess the performance of State and local

prosecutors who litigate State capital cases, provided that

such assessment shall not include participation by the

assessor in the trial of any specific capital case.

(D) To identify and implement any potential legal

reforms that may be appropriate to minimize the potential

for error in the trial of capital cases.

(E) To establish a program under which State and

local prosecutors conduct a systematic review of cases in

which a death sentence was imposed in order to identify

cases in which post-conviction DNA testing may be appropriate.

(F) To provide support and assistance to the families

of murder victims.

(2) PROHIBITED USE.—Grants awarded under subsection

(a) shall not be used to fund, directly or indirectly, the prosecution of specific capital cases.

SEC. 423. APPLICATIONS.

(a) IN GENERAL.—The Attorney General shall establish a

process through which a State may apply for a grant under this

subtitle.

(b) APPLICATION.—

(1) IN GENERAL.—A State desiring a grant under this subtitle shall submit an application to the Attorney General at

such time, in such manner, and containing such information

as the Attorney General may reasonably require.

(2) CONTENTS.—Each application submitted under paragraph (1) shall contain—

(A) a certification by an appropriate officer of the State

that the State authorizes capital punishment under its

laws and conducts, or will conduct, prosecutions in which

capital punishment is sought;

(B) a description of the communities to be served by

the grant, including the nature of existing capital defender

services and capital prosecution programs within such

communities;

(C) a long-term statewide strategy and detailed

implementation plan that—

(i) reflects consultation with the judiciary, the

organized bar, and State and local prosecutor and

defender organizations; and

(ii) establishes as a priority improvement in the

quality of trial-level representation of indigents

Certification.

Procedures.

42 USC 14163b.

42 USC 14163a.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2289

charged with capital crimes and trial-level prosecution

of capital crimes;

(D) in the case of a State that employs a statutory

procedure described in section 421(e)(1)(C), a certification

by an appropriate officer of the State that the State is

in substantial compliance with the requirements of the

applicable State statute; and

(E) assurances that Federal funds received under this

subtitle shall be—

(i) used to supplement and not supplant non-Federal funds that would otherwise be available for activities funded under this subtitle; and

(ii) allocated in accordance with section 426(b).

SEC. 424. STATE REPORTS.

(a) IN GENERAL.—Each State receiving funds under this subtitle

shall submit an annual report to the Attorney General that—

(1) identifies the activities carried out with such funds;

and

(2) explains how each activity complies with the terms

and conditions of the grant.

(b) CAPITAL REPRESENTATION IMPROVEMENT GRANTS.—With

respect to the funds provided under section 421, a report under

subsection (a) shall include—

(1) an accounting of all amounts expended;

(2) an explanation of the means by which the State—

(A) invests the responsibility for identifying and

appointing qualified attorneys to represent indigents in

capital cases in a program described in section 421(e)(1)(A),

an entity described in section 421(e)(1)(B), or a selection

committee or similar entity described in section

421(e)(1)(C); and

(B) requires such program, entity, or selection committee or similar entity, or other appropriate entity designated pursuant to the statutory procedure described in

section 421(e)(1)(C), to—

(i) establish qualifications for attorneys who may

be appointed to represent indigents in capital cases

in accordance with section 421(e)(2)(A);

(ii) establish and maintain a roster of qualified

attorneys in accordance with section 421(e)(2)(B);

(iii) assign attorneys from the roster in accordance

with section 421(e)(2)(C);

(iv) conduct, sponsor, or approve specialized

training programs for attorneys representing defendants in capital cases in accordance with section

421(e)(2)(D);

(v) monitor the performance and training program

attendance of appointed attorneys, and remove from

the roster attorneys who fail to deliver effective representation or fail to comply with such requirements

as such program, entity, or selection committee or

similar entity may establish regarding participation

in training programs, in accordance with section

421(e)(2)(E); and

(vi) ensure funding for the cost of competent legal

representation by the defense team and outside experts

42 USC 14163c.

118 STAT. 2290 PUBLIC LAW 108–405—OCT. 30, 2004

selected by counsel, in accordance with section

421(e)(2)(F), including a statement setting forth—

(I) if the State employs a public defender program under section 421(e)(1)(A), the salaries

received by the attorneys employed by such program and the salaries received by attorneys in

the prosecutor’s office in the jurisdiction;

(II) if the State employs appointed attorneys

under section 421(e)(1)(B), the hourly fees received

by such attorneys for actual time and service and

the basis on which the hourly rate was calculated;

(III) the amounts paid to non-attorney members of the defense team, and the basis on which

such amounts were determined; and

(IV) the amounts for which attorney and nonattorney members of the defense team were

reimbursed for reasonable incidental expenses;

(3) in the case of a State that employs a statutory procedure

described in section 421(e)(1)(C), an assessment of the extent

to which the State is in compliance with the requirements

of the applicable State statute; and

(4) a statement confirming that the funds have not been

used to fund representation in specific capital cases or to supplant non-Federal funds.

(c) CAPITAL PROSECUTION IMPROVEMENT GRANTS.—With respect

to the funds provided under section 422, a report under subsection

(a) shall include—

(1) an accounting of all amounts expended;

(2) a description of the means by which the State has—

(A) designed and established training programs for

State and local prosecutors to ensure effective representation in State capital cases in accordance with section

422(b)(1)(A);

(B) developed and implemented appropriate standards

and qualifications for State and local prosecutors who litigate State capital cases in accordance with section

422(b)(1)(B);

(C) assessed the performance of State and local

prosecutors who litigate State capital cases in accordance

with section 422(b)(1)(C);

(D) identified and implemented any potential legal

reforms that may be appropriate to minimize the potential

for error in the trial of capital cases in accordance with

section 422(b)(1)(D);

(E) established a program under which State and local

prosecutors conduct a systematic review of cases in which

a death sentence was imposed in order to identify cases

in which post-conviction DNA testing may be appropriate

in accordance with section 422(b)(1)(E); and

(F) provided support and assistance to the families

of murder victims; and

(3) a statement confirming that the funds have not been

used to fund the prosecution of specific capital cases or to

supplant non-Federal funds.

(d) PUBLIC DISCLOSURE OF ANNUAL STATE REPORTS.—The

annual reports to the Attorney General submitted by any State

under this section shall be made available to the public.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2291

SEC. 425. EVALUATIONS BY INSPECTOR GENERAL AND ADMINISTRATIVE REMEDIES.

(a) EVALUATION BY INSPECTOR GENERAL.— (1) IN GENERAL.—As soon as practicable after the end of

the first fiscal year for which a State receives funds under

a grant made under this subtitle, the Inspector General of

the Department of Justice (in this section referred to as the

‘‘Inspector General’’) shall—

(A) submit to the Committee on the Judiciary of the

House of Representatives and the Committee on the

Judiciary of the Senate a report evaluating the compliance

by the State with the terms and conditions of the grant;

and

(B) if the Inspector General concludes that the State

is not in compliance with the terms and conditions of

the grant, specify any deficiencies and make recommendations to the Attorney General for corrective action.

(2) PRIORITY.—In conducting evaluations under this subsection, the Inspector General shall give priority to States that

the Inspector General determines, based on information submitted by the State and other comments provided by any other

person, to be at the highest risk of noncompliance.

(3) DETERMINATION FOR STATUTORY PROCEDURE STATES.—

For each State that employs a statutory procedure described

in section 421(e)(1)(C), the Inspector General shall submit to

the Committee on the Judiciary of the House of Representatives

and the Committee on the Judiciary of the Senate, not later

than the end of the first fiscal year for which such State

receives funds, a determination as to whether the State is

in substantial compliance with the requirements of the

applicable State statute.

(4) COMMENTS FROM PUBLIC.—The Inspector General shall

receive and consider comments from any member of the public

regarding any State’s compliance with the terms and conditions

of a grant made under this subtitle. To facilitate the receipt

of such comments, the Inspector General shall maintain on

its website a form that any member of the public may submit,

either electronically or otherwise, providing comments. The

Inspector General shall give appropriate consideration to all

such public comments in reviewing reports submitted under

section 424 or in establishing the priority for conducting evaluations under this section.

(b) ADMINISTRATIVE REVIEW.—

(1) COMMENT.—Upon the submission of a report under

subsection (a)(1) or a determination under subsection (a)(3),

the Attorney General shall provide the State with an opportunity to comment regarding the findings and conclusions of

the report or the determination.

(2) CORRECTIVE ACTION PLAN.—If the Attorney General,

after reviewing a report under subsection (a)(1) or a determination under subsection (a)(3), determines that a State is not

in compliance with the terms and conditions of the grant,

the Attorney General shall consult with the appropriate State

authorities to enter into a plan for corrective action. If the

State does not agree to a plan for corrective action that has

been approved by the Attorney General within 90 days after

the submission of the report under subsection (a)(1) or the

Deadline.

Deadline.

Reports.

42 USC 14163d.

118 STAT. 2292 PUBLIC LAW 108–405—OCT. 30, 2004

determination under subsection (a)(3), the Attorney General

shall, within 30 days, issue guidance to the State regarding

corrective action to bring the State into compliance.

(3) REPORT TO CONGRESS.—Not later than 90 days after

the earlier of the implementation of a corrective action plan

or the issuance of guidance under paragraph (2), the Attorney

General shall submit a report to the Committee on the Judiciary

of the House of Representatives and the Committee on the

Judiciary of the Senate as to whether the State has taken

corrective action and is in compliance with the terms and

conditions of the grant.

(c) PENALTIES FOR NONCOMPLIANCE.—If the State fails to take

the prescribed corrective action under subsection (b) and is not

in compliance with the terms and conditions of the grant, the

Attorney General shall discontinue all further funding under sections 421 and 422 and require the State to return the funds granted

under such sections for that fiscal year. Nothing in this paragraph

shall prevent a State which has been subject to penalties for noncompliance from reapplying for a grant under this subtitle in

another fiscal year.

(d) PERIODIC REPORTS.—During the grant period, the Inspector

General shall periodically review the compliance of each State with

the terms and conditions of the grant.

(e) ADMINISTRATIVE COSTS.—Not less than 2.5 percent of the

funds appropriated to carry out this subtitle for each of fiscal

years 2005 through 2009 shall be made available to the Inspector

General for purposes of carrying out this section. Such sums shall

remain available until expended.

(f) SPECIAL RULE FOR ‘‘STATUTORY PROCEDURE’’ STATES NOT

IN SUBSTANTIAL COMPLIANCE WITH STATUTORY PROCEDURES.—

(1) IN GENERAL.—In the case of a State that employs a

statutory procedure described in section 421(e)(1)(C), if the

Inspector General submits a determination under subsection

(a)(3) that the State is not in substantial compliance with

the requirements of the applicable State statute, then for the

period beginning with the date on which that determination

was submitted and ending on the date on which the Inspector

General determines that the State is in substantial compliance

with the requirements of that statute, the funds awarded under

this subtitle shall be allocated solely for the uses described

in section 421.

(2) RULE OF CONSTRUCTION.—The requirements of this subsection apply in addition to, and not instead of, the other

requirements of this section.

SEC. 426. AUTHORIZATION OF APPROPRIATIONS.

(a) AUTHORIZATION FOR GRANTS.—There are authorized to be

appropriated $75,000,000 for each of fiscal years 2005 through

2009 to carry out this subtitle.

(b) RESTRICTION ON USE OF FUNDS TO ENSURE EQUAL ALLOCATION.—Each State receiving a grant under this subtitle shall allocate the funds equally between the uses described in section 421

and the uses described in section 422, except as provided in section

425(f).

42 USC 14163e.

PUBLIC LAW 108–405—OCT. 30, 2004 118 STAT. 2293

LEGISLATIVE HISTORY—H.R. 5107 (H.R. 3214):

HOUSE REPORTS: No. 108–711 (Comm. on the Judiciary).

SENATE REPORTS: No. 108–321, Pt. 1 (Comm. on the Judiciary).

CONGRESSIONAL RECORD, Vol. 150 (2004):

Oct. 6, considered and passed House.

Oct. 9, considered and passed Senate.

Æ

Subtitle C—Compensation for the

Wrongfully Convicted

SEC. 431. INCREASED COMPENSATION IN FEDERAL CASES FOR THE

WRONGFULLY CONVICTED.

Section 2513(e) of title 28, United States Code, is amended

by striking ‘‘exceed the sum of $5,000’’ and inserting ‘‘exceed

$100,000 for each 12-month period of incarceration for any plaintiff

who was unjustly sentenced to death and $50,000 for each 12-

month period of incarceration for any other plaintiff’’.

SEC. 432. SENSE OF CONGRESS REGARDING COMPENSATION IN STATE

DEATH PENALTY CASES.

It is the sense of Congress that States should provide reasonable compensation to any person found to have been unjustly convicted of an offense against the State and sentenced to death.

Approved October 30, 2004.