II

106TH CONGRESS

2D SESSION S. 2073

To reduce the risk that innocent persons may be executed, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 10, 2000

Mr. LEAHY (for himself, Mr. LEVIN, Mr. FEINGOLD, Mr. MOYNIHAN, and Mr.

AKAKA) introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To reduce the risk that innocent persons may be executed,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Innocence Protection Act of 2000’’.

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

7 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—EXONERATING THE INNOCENT THROUGH DNA TESTING

Sec. 101. Findings and purposes.

Sec. 102. DNA testing in Federal criminal justice system.
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Sec. 103. DNA testing in State criminal justice systems.

Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.

TITLE II—ENSURING COMPETENT LEGAL SERVICES IN CAPITAL

CASES

Sec. 201. Amendments to Byrne grant programs.

Sec. 202. Effect on procedural default rules.

Sec. 203. Capital representation grants.

TITLE III—COMPENSATING THE UNJUSTLY CONDEMNED

Sec. 301. Increased compensation in Federal cases.

Sec. 302. Compensation in State death penalty cases.

TITLE IV—MISCELLANEOUS PROVISIONS

Sec. 401. Accommodation of State interests in Federal death penalty prosecutions.

Sec. 402. Alternative of life imprisonment without possibility of release.

Sec. 403. Right to an informed jury.

Sec. 404. Annual reports.

Sec. 405. Discretionary appellate review.

Sec. 406. Sense of the Senate regarding the execution of juvenile offenders and

the mentally retarded.

1 TITLE I—EXONERATING THE IN2 NOCENT THROUGH DNA

3 TESTING

4 SEC. 101. FINDINGS AND PURPOSES.

5 (a) FINDINGS.—Congress makes the following find6 ings:

7 (1) Over the past decade, deoxyribonucleic acid

8 testing (referred to in this section as ‘‘DNA test9 ing’’) has emerged as the most reliable forensic tech10 nique for identifying criminals when biological mate11 rial is left at a crime scene.

12 (2) Because of its scientific precision, DNA

13 testing can, in some cases, conclusively establish the

14 guilt or innocence of a criminal defendant. In other
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1 cases, DNA testing may not conclusively establish

2 guilt or innocence, but may have significant pro3 bative value to a finder of fact.

4 (3) While DNA testing is increasingly common5 place in pretrial investigations today, it was not

6 widely available in cases tried prior to 1994. More7 over, new forensic DNA testing procedures have

8 made it possible to get results from minute samples

9 that could not previously be tested, and to obtain

10 more informative and accurate results than earlier

11 forms of forensic DNA testing could produce. Con12 sequently, in some cases convicted inmates have

13 been exonerated by new DNA tests after earlier tests

14 had failed to produce definitive results.

15 (4) Since DNA testing is often feasible on rel16 evant biological material that is decades old, it can,

17 in some circumstances, prove that a conviction that

18 predated the development of DNA testing was based

19 upon incorrect factual findings. Uniquely, DNA evi20 dence showing innocence, produced decades after a

21 conviction, provides a more reliable basis for estab22 lishing a correct verdict than any evidence proffered

23 at the original trial. DNA testing, therefore, can and

24 has resulted in the post-conviction exoneration of in25 nocent men and women.
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1 (5) In the past decade, there have been more

2 than 65 post-conviction exonerations in the United

3 States and Canada based upon DNA testing. At

4 least 8 individuals sentenced to death have been ex5 onerated through post-conviction DNA testing, some

6 of whom came within days of being executed.

7 (6) The 2 States that have established statutory

8 processes for post-conviction DNA testing, Illinois

9 and New York, have the most post-conviction DNA

10 exonerations, 14 and 7, respectively.

11 (7) The advent of DNA testing raises serious

12 concerns regarding the prevalence of wrongful con13 victions, especially wrongful convictions arising out

14 of mistaken eyewitness identification testimony. Ac15 cording to a 1996 Department of Justice study enti16 tled ‘‘Convicted by Juries, Exonerated by Science:

17 Case Studies of Post-Conviction DNA Exonera18 tions’’, in approximately 20 to 30 percent of the

19 cases referred for DNA testing, the results excluded

20 the primary suspect. Without DNA testing, many of

21 these individuals might have been wrongfully con22 victed.

23 (8) Laws in more than 30 States require that

24 a motion for a new trial based on newly discovered

25 evidence of innocence be filed within 6 months or
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1 less. These laws are premised on the belief—inappli2 cable to DNA testing—that evidence becomes less

3 reliable over time. Such time limits have been used

4 to deny inmates access to DNA testing, even when

5 guilt or innocence could be conclusively established

6 by such testing. For example, in Dedge v. Florida,

7 723 So.2d 322 (Fla. Dist. Ct. App. 1998), the court

8 without opinion affirmed the denial of a motion to

9 release trial evidence for the purpose of DNA test10 ing. The trial court denied the motion as proce11 durally barred under the 2-year limitation on claims

12 of newly discovered evidence established by the State

13 of Florida, which has since adopted a 6-month limi14 tation on such claims.

15 (9) Even when DNA testing has been done and

16 has persuasively demonstrated the actual innocence

17 of an inmate, States have sometimes relied on time

18 limits and other procedural barriers to deny release.

19 (10) The National Commission on the Future

20 of DNA Evidence, a Federal panel established by

21 the Department of Justice and comprised of law en22 forcement, judicial, and scientific experts, has issued

23 a report entitled ‘‘Recommendations For Handling

24 Post-Conviction DNA Applications’’ that urges post25 conviction DNA testing in 2 carefully defined cat-
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1 egories of cases, notwithstanding procedural rules

2 that could be invoked to preclude such testing, and

3 notwithstanding the inability of the inmate to pay

4 for the testing.

5 (11) The number of cases in which post-convic6 tion DNA testing is appropriate is relatively small

7 and will decrease as pretrial testing becomes more

8 common and accessible.

9 (12) The cost of DNA testing has also de10 creased in recent years. The typical case, involving

11 the analysis of 8 samples, currently costs between

12 $2,400 and $5,000, depending upon jurisdictional

13 differences in personnel costs.

14 (13) In 1994, Congress authorized funding to

15 improve the quality and availability of DNA analysis

16 for law enforcement identification purposes. Since

17 then, States have been awarded over $50,000,000 in

18 DNA-related grants.

19 (14) Although the Supreme Court has never an20 nounced a standard for addressing constitutional

21 claims of innocence, in Herrera v. Collins, 506 U.S.

22 390 (1993), a majority of the Court expressed the

23 view that, ‘‘a truly persuasive demonstration of ‘ac24 tual innocence’ ’’ made after trial would render im25 position of punishment by a State unconstitutional.
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1 (15) If biological material is not subjected to

2 DNA testing in appropriate cases, there is a signifi3 cant risk that persuasive evidence of innocence will

4 not be detected and, accordingly, that innocent per5 sons will be unconstitutionally incarcerated or exe6 cuted.

7 (16) To prevent violations of the Constitution

8 of the United States that the Supreme Court antici9 pated in Herrera v. Collins, it is necessary and prop10 er to enact national legislation that ensures that the

11 Federal Government and the States will permit

12 DNA testing in appropriate cases.

13 (17) There is also a compelling need to ensure

14 the preservation of biological material for post-con15 viction DNA testing. Since 1992, the Innocence

16 Project at the Benjamin N. Cardozo School of Law

17 has received thousands of letters from inmates who

18 claim that DNA testing could prove them innocent.

19 In over 70 percent of those cases in which DNA

20 testing could have been dispositive of guilt or inno21 cence if the biological material were available, the

22 material had been destroyed or lost. In two-thirds of

23 the cases in which the evidence was found, and DNA

24 testing conducted, the results have exonerated the

25 inmate.
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1 (18) In at least 14 cases, post-conviction DNA

2 testing that has exonerated a wrongly convicted per3 son has also provided evidence leading to the appre4 hension of the actual perpetrator, thereby enhancing

5 public safety. This would not have been possible if

6 the biological evidence had been destroyed.

7 (b) PURPOSES.—The purposes of this title are to—

8 (1) substantially implement the Recommenda9 tions of the National Commission on the Future of

10 DNA Evidence in the Federal criminal justice sys11 tem, by ensuring the availability of DNA testing in

12 appropriate cases;

13 (2) prevent the imposition of unconstitutional

14 punishments through the exercise of power granted

15 by clause 1 of section 8 and clause 2 of section 9

16 of article I of the Constitution of the United States

17 and section 5 of the 14th amendment to the Con18 stitution of the United States; and

19 (3) ensure that wrongfully convicted persons

20 have an opportunity to establish their innocence

21 through DNA testing, by requiring the preservation

22 of DNA evidence for a limited period.
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1 SEC. 102. DNA TESTING IN FEDERAL CRIMINAL JUSTICE

2 SYSTEM.

3 (a) IN GENERAL.—Part VI of title 28, United States

4 Code, is amended by inserting after chapter 155 the fol5 lowing:

6 ‘‘CHAPTER 156—DNA TESTING

‘‘Sec.

‘‘2291. DNA testing.

‘‘2292. Preservation of biological material.

7 ‘‘§ 2291. DNA testing

8 ‘‘(a) APPLICATION.—Notwithstanding any other pro9 vision of law, a person in custody pursuant to the judg10 ment of a court established by an Act of Congress may,

11 at any time after conviction, apply to the court that en12 tered the judgment for forensic DNA testing of any bio13 logical material that—

14 ‘‘(1) is related to the investigation or prosecu15 tion that resulted in the judgment;

16 ‘‘(2) is in the actual or constructive possession

17 of the Government; and

18 ‘‘(3) was not previously subjected to DNA test19 ing, or can be subjected to retesting with new DNA

20 techniques that provide a reasonable likelihood of

21 more accurate and probative results.

22 ‘‘(b) NOTICE TO GOVERNMENT.—

23 ‘‘(1) IN GENERAL.—The court shall notify the

24 Government of an application made under subsection
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1 (a) and shall afford the Government an opportunity

2 to respond.

3 ‘‘(2) PRESERVATION OF REMAINING BIOLOGI4 CAL MATERIAL.—Upon receiving notice of an appli5 cation made under subsection (a), the Government

6 shall take such steps as are necessary to ensure that

7 any remaining biological material that was secured

8 in connection with the case is preserved pending the

9 completion of proceedings under this section.

10 ‘‘(c) ORDER.—The court shall order DNA testing

11 pursuant to an application made under subsection (a)

12 upon a determination that testing may produce noncumu13 lative, exculpatory evidence relevant to the claim of the

14 applicant that the applicant was wrongfully convicted or

15 sentenced.

16 ‘‘(d) COST.—The cost of DNA testing ordered under

17 subsection (c) shall be borne by the Government or the

18 applicant, as the court may order in the interests of jus19 tice, if it is shown that the applicant is not indigent and

20 possesses the means to pay.

21 ‘‘(e) COUNSEL.—The court may at any time appoint

22 counsel for an indigent applicant under this section.

23 ‘‘(f) POST-TESTING PROCEDURES.—

24 ‘‘(1) PROCEDURES FOLLOWING RESULTS UNFA25 VORABLE TO APPLICANT.—If the results of DNA
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1 testing conducted under this section are unfavorable

2 to the applicant, the court—

3 ‘‘(A) shall dismiss the application; and

4 ‘‘(B) in the case of an applicant who is not

5 indigent, may assess the applicant for the cost

6 of such testing.

7 ‘‘(2) PROCEDURES FOLLOWING RESULTS FA8 VORABLE TO APPLICANT.—If the results of DNA

9 testing conducted under this section are favorable to

10 the applicant, the court shall—

11 ‘‘(A) order a hearing, notwithstanding any

12 provision of law that would bar such a hearing;

13 and

14 ‘‘(B) enter any order that serves the inter15 ests of justice, including an order—

16 ‘‘(i) vacating and setting aside the

17 judgment;

18 ‘‘(ii) discharging the applicant if the

19 applicant is in custody;

20 ‘‘(iii) resentencing the applicant; or

21 ‘‘(iv) granting a new trial.

22 ‘‘(g) RULE OF CONSTRUCTION.—Nothing in this sec23 tion shall be construed to limit the circumstances under

24 which a person may obtain DNA testing or other post25 conviction relief under any other provision of law.
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1 ‘‘§ 2292. Preservation of biological material

2 ‘‘(a) IN GENERAL.—Notwithstanding any other pro3 vision of law and subject to subsection (b), the Govern4 ment shall preserve any biological material secured in con5 nection with a criminal case for such period of time as

6 any person remains incarcerated in connection with that

7 case.

8 ‘‘(b) EXCEPTION.—The Government may destroy bio9 logical material before the expiration of the period of time

10 described in subsection (a) if—

11 ‘‘(1) the Government notifies any person who

12 remains incarcerated in connection with the case,

13 and any counsel of record or public defender organi14 zation for the judicial district in which the judgment

15 of conviction for such person was entered, of—

16 ‘‘(A) the intention of the Government to

17 destroy the material; and

18 ‘‘(B) the provisions of this chapter;

19 ‘‘(2) no person makes an application under sec20 tion 2291(a) within 90 days of receiving notice

21 under paragraph (1) of this subsection; and

22 ‘‘(3) no other provision of law requires that

23 such biological material be preserved.’’.

24 (b) TECHNICAL AND CONFORMING AMENDMENT.—

25 The analysis for part VI of title 28, United States Code,
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1 is amended by inserting after the item relating to chapter

2 155 the following:

‘‘156. DNA Testing .............................................................................. 2291’’.

3 SEC. 103. DNA TESTING IN STATE CRIMINAL JUSTICE SYS4 TEMS.

5 (a) DNA IDENTIFICATION GRANT PROGRAM.—Sec6 tion 2403 of title I of the Omnibus Crime Control and

7 Safe Streets Act of 1968 (42 U.S.C. 3796kk–2) is

8 amended—

9 (1) in paragraph (2)—

10 (A) in the matter preceding subparagraph

11 (A), by striking ‘‘shall’’ and inserting ‘‘will’’;

12 (B) in subparagraph (C), by striking ‘‘is

13 charged’’ and inserting ‘‘was charged or con14 victed’’; and

15 (C) in subparagraph (D), by striking

16 ‘‘and’’ at the end;

17 (2) in paragraph (3)—

18 (A) by striking ‘‘shall’’ and inserting

19 ‘‘will’’; and

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

21 inserting ‘‘; and’’; and

22 (3) by adding at the end the following:

23 ‘‘(4) the State will—

24 ‘‘(A) preserve all biological material se25 cured in connection with a State criminal case
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1 for not less than the period of time that biologi2 cal material is required to be preserved under

3 section 2292 of title 28, United States Code, in

4 the case of a person incarcerated in connection

5 with a Federal criminal case; and

6 ‘‘(B) make DNA testing available to any

7 person convicted in State court to the same ex8 tent, and under the same conditions, that DNA

9 testing is available under section 2291 of title

10 28, United States Code, to any person convicted

11 in a court established by an Act of Congress.’’.

12 (b) DRUG CONTROL AND SYSTEM IMPROVEMENT

13 GRANT PROGRAM.—Section 503(a)(12) of title I of the

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

15 U.S.C. 3753(a)(12)) is amended—

16 (1) in subparagraph (B)—

17 (A) in clause (iii), by striking ‘‘is charged’’

18 and inserting ‘‘was charged or convicted’’; and

19 (B) in clause (iv), by striking ‘‘and’’ at the

20 end;

21 (2) in subparagraph (C), by striking the period

22 at the end and inserting ‘‘; and’’; and

23 (3) by adding at the end the following:

24 ‘‘(D) the State will—
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1 ‘‘(i) preserve all biological material se2 cured in connection with a State criminal

3 case for not less than the period of time

4 that biological material is required to be

5 preserved under section 2292 of title 28,

6 United States Code, in the case of a per7 son incarcerated in connection with a Fed8 eral criminal case; and

9 ‘‘(ii) make DNA testing available to a

10 person convicted in State court to the

11 same extent, and under the same condi12 tions, that DNA testing is available under

13 section 2291 of title 28, United States

14 Code, to a person convicted in a court es15 tablished by an Act of Congress.’’.

16 (c) PUBLIC SAFETY AND COMMUNITY POLICING

17 GRANT PROGRAM.—Section 1702(c) of title I of the Om18 nibus Crime Control and Safe Streets Act of 1968 (42

19 U.S.C. 3796dd–1(c)) is amended—

20 (1) in paragraph (10), by striking ‘‘and’’ at the

21 end;

22 (2) in paragraph (11), by striking the period at

23 the end and inserting ‘‘; and’’; and

24 (3) by adding at the end the following:
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1 ‘‘(12) if any part of funds received from a grant

2 made under this subchapter is to be used to develop

3 or improve a DNA analysis capability in a forensic

4 laboratory, or to obtain or analyze DNA samples for

5 inclusion in the Combined DNA Index System

6 (CODIS), certify that—

7 ‘‘(A) DNA analyses performed at such lab8 oratory will satisfy or exceed the current stand9 ards for a quality assurance program for DNA

10 analysis, issued by the Director of the Federal

11 Bureau of Investigation under section 210303

12 of the DNA Identification Act of 1994 (42

13 U.S.C. 14131);

14 ‘‘(B) DNA samples and analyses obtained

15 and performed by such laboratory will be acces16 sible only—

17 ‘‘(i) to criminal justice agencies for

18 law enforcement purposes;

19 ‘‘(ii) in judicial proceedings, if other20 wise admissible under applicable statutes

21 and rules;

22 ‘‘(iii) for criminal defense purposes, to

23 a defendant, who shall have access to sam24 ples and analyses performed in connection
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1 with the case in which the defendant was

2 charged or convicted; or

3 ‘‘(iv) if personally identifiable infor4 mation is removed, for a population statis5 tics database, for identification research

6 and protocol development purposes, or for

7 quality control purposes;

8 ‘‘(C) the laboratory and each analyst per9 forming DNA analyses at the laboratory will

10 undergo, at regular intervals not exceeding 180

11 days, external proficiency testing by a DNA

12 proficiency testing program that meets the

13 standards issued under section 210303 of the

14 DNA Identification Act of 1994 (42 U.S.C.

15 14131); and

16 ‘‘(D) the State will—

17 ‘‘(i) preserve all biological material se18 cured in connection with a State criminal

19 case for not less than the period of time

20 that biological material is required to be

21 preserved under section 2292 of title 28,

22 United States Code, in the case of a per23 son incarcerated in connection with a Fed24 eral criminal case; and
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1 ‘‘(ii) make DNA testing available to

2 any person convicted in State court to the

3 same extent, and under the same condi4 tions, that DNA testing is available under

5 section 2291 of title 28, United States

6 Code, to a person convicted in a court es7 tablished by an Act of Congress.’’.

8 SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE

9 14TH AMENDMENT.

10 (a) REQUEST FOR DNA TESTING.—

11 (1) IN GENERAL.—No State shall deny a re12 quest, made by a person in custody resulting from

13 a State court judgment, for DNA testing of biologi14 cal material that—

15 (A) is related to the investigation or pros16 ecution that resulted in the conviction of the

17 person or the sentence imposed on the person;

18 (B) is in the actual or constructive posses19 sion of the State; and

20 (C) was not previously subjected to DNA

21 testing, or can be subjected to retesting with

22 new DNA techniques that provide a reasonable

23 likelihood of more accurate and probative re24 sults.
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1 (2) EXCEPTION.—A State may deny a request

2 under paragraph (1) upon a judicial determination

3 that testing could not produce noncumulative evi4 dence establishing a reasonable probability that the

5 person was wrongfully convicted or sentenced.

6 (b) OPPORTUNITY TO PRESENT RESULTS OF DNA

7 TESTING.—No State shall rely upon a time limit or proce8 dural default rule to deny a person an opportunity to

9 present noncumulative, exculpatory DNA results in court,

10 or in an executive or administrative forum in which a deci11 sion is made in accordance with procedural due process.

12 (c) REMEDY.—A person may enforce subsections (a)

13 and (b) in a civil action for declaratory or injunctive relief,

14 filed either in a State court of general jurisdiction or in

15 a district court of the United States, naming either the

16 State or an executive or judicial officer of the State as

17 defendant. No State or State executive or judicial officer

18 shall have immunity from actions under this subsection.

19 TITLE II—ENSURING COM20 PETENT LEGAL SERVICES IN

21 CAPITAL CASES

22 SEC. 201. AMENDMENTS TO BYRNE GRANT PROGRAMS.

23 (a) CERTIFICATION REQUIREMENT; FORMULA

24 GRANTS.—Section 503 of title I of the Omnibus Crime
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1 Control and Safe Streets Act of 1968 (42 U.S.C. 3753)

2 is amended—

3 (1) in subsection (a), by adding at the end the

4 following:

5 ‘‘(13) If the State prescribes, authorizes, or

6 permits the penalty of death for any offense, a cer7 tification that the State has established and main8 tains an effective system for providing competent

9 legal services to indigents at every phase of a State

10 criminal prosecution in which a death sentence is

11 sought or has been imposed, up to and including di12 rect appellate review and post-conviction review in

13 State court.’’; and

14 (2) in subsection (b)—

15 (A) by striking ‘‘(b) Within 30 days after

16 the date of enactment of this part, the’’ and in17 serting the following:

18 ‘‘(b) REGULATIONS.—

19 ‘‘(1) IN GENERAL.—The’’; and

20 (B) by adding at the end the following:

21 ‘‘(2) CERTIFICATION REGULATIONS.—The Di22 rector of the Administrative Office of the United

23 States Courts, after notice and an opportunity for

24 comment, shall promulgate regulations specifying

25 the elements of an effective system within the mean-
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1 ing of subsection (a)(13), which elements shall

2 include—

3 ‘‘(A) a centralized and independent ap4 pointing authority, which shall have authority

5 and responsibility to—

6 ‘‘(i) recruit attorneys who are quali7 fied to represent indigents in the capital

8 proceedings specified in subsection (a)(13);

9 ‘‘(ii) draft and annually publish a ros10 ter of qualified attorneys;

11 ‘‘(iii) draft and annually publish quali12 fications and performance standards that

13 attorneys must satisfy to be listed on the

14 roster and procedures by which qualified

15 attorneys are identified;

16 ‘‘(iv) periodically review the roster,

17 monitor the performance of all attorneys

18 appointed, provide a mechanism by which

19 members of the Bar may comment on the

20 performance of their peers, and delete the

21 name of any attorney who fails to complete

22 regular training programs on the represen23 tation of clients in capital cases, fails to

24 meet performance standards in a case to

25 which the attorney is appointed, or other-
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1 wise fails to demonstrate continuing com2 petence to represent clients in capital

3 cases;

4 ‘‘(v) conduct or sponsor specialized

5 training programs for attorneys rep6 resenting clients in capital cases;

7 ‘‘(vi) appoint lead counsel and co8 counsel from the roster to represent a de9 fendant in a capital case promptly upon re10 ceiving notice of the need for an appoint11 ment from the relevant State court; and

12 ‘‘(vii) report the appointment, or the

13 failure of the defendant to accept such ap14 pointment, to the court requesting the ap15 pointment;

16 ‘‘(B) compensation of private attorneys for

17 actual time and service, computed on an hourly

18 basis and at a reasonable hourly rate in light of

19 the qualifications and experience of the attorney

20 and the local market for legal representation in

21 cases reflecting the complexity and responsi22 bility of capital cases;

23 ‘‘(C) reimbursement of private attorneys

24 and public defender organizations for attorney

25 expenses reasonably incurred in the representa-
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1 tion of a client in a capital case, computed on

2 an hourly basis reflecting the local market for

3 such services; and

4 ‘‘(D) reimbursement of private attorneys

5 and public defender organizations for the rea6 sonable costs of law clerks, paralegals, inves7 tigators, experts, scientific tests, and other sup8 port services necessary in the representation of

9 a defendant in a capital case, computed on an

10 hourly basis reflecting the local market for such

11 services.’’.

12 (b) CERTIFICATION REQUIREMENT; DISCRETIONARY

13 GRANTS.—Section 517(a) of title I of the Omnibus Crime

14 Control and Safe Streets Act of 1968 (42 U.S.C. 3763(a))

15 is amended—

16 (1) in paragraph (3), by striking ‘‘and’’ at the

17 end;

18 (2) in paragraph (4), by striking the period at

19 the end and inserting ‘‘; and’’; and

20 (3) by adding at the end the following:

21 ‘‘(5) satisfies the certification requirement es22 tablished by section 503(a)(13).’’.

23 (c) DIRECTOR’S REPORTS TO CONGRESS.—Section

24 522(b) of title I of the Omnibus Crime Control and Safe

25 Streets Act of 1968 (42 U.S.C. 3766b(b)) is amended—
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1 (1) in paragraph (4), by striking ‘‘and’’ at the

2 end;

3 (2) by redesignating paragraph (5) as para4 graph (6); and

5 (3) by inserting after paragraph (4) the fol6 lowing:

7 ‘‘(5) descriptions and a comparative analysis of

8 the systems established by each State in order to

9 satisfy the certification requirement established by

10 section 503(a)(13), except that the descriptions and

11 the comparative analysis shall include—

12 ‘‘(A) the qualifications and performance

13 standards established pursuant to section

14 503(b)(2)(A)(iii);

15 ‘‘(B) the rates of compensation paid under

16 section 503(b)(2)(B); and

17 ‘‘(C) the rates of reimbursement paid

18 under subparagraphs (C) and (D) of section

19 503(b)(2); and’’.

20 (d) EFFECTIVE DATE.—

21 (1) IN GENERAL.—Subject to paragraph (2),

22 the amendments made by this section shall apply

23 with respect to any application submitted on or after

24 the date that is 1 year after the date of enactment

25 of this Act.
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1 (2) EXCEPTION.—The amendments made by

2 this section shall not take effect until the amount

3 made available for a fiscal year to carry out part E

4 of title I of the Omnibus Crime Control and Safe

5 Streets Act of 1968 equals or exceeds an amount

6 that is $50,000,000 greater than the amount made

7 available to carry out that part for fiscal year 2000.

8 (e) REGULATIONS.—The Director of the Administra9 tive Office of the United States Courts shall issue all regu10 lations necessary to carry out the amendments made by

11 this section not later than 180 days before the effective

12 date of those regulations.

13 SEC. 202. EFFECT ON PROCEDURAL DEFAULT RULES.

14 Section 2254(e) of title 28, United States Code, is

15 amended—

16 (1) in paragraph (1), by striking ‘‘In a pro17 ceeding’’ and inserting ‘‘Except as provided in para18 graph (3), in a proceeding’’; and

19 (2) by adding at the end the following:

20 ‘‘(3) In a proceeding instituted by an indigent

21 applicant under sentence of death, the court shall

22 neither presume a finding of fact made by a State

23 court to be correct nor decline to consider a claim

24 on the ground that the applicant failed to raise such
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1 claim in State court at the time and in the manner

2 prescribed by State law, unless—

3 ‘‘(A) the State provided the applicant with

4 legal services at the stage of the State pro5 ceedings at which the State court made the

6 finding of fact or the applicant failed to raise

7 the claim; and

8 ‘‘(B) the legal services the State provided

9 satisfied the regulations promulgated by the Di10 rector of the Administrative Office of the

11 United States Courts pursuant to section

12 503(b)(2) of title I of the Omnibus Crime Con13 trol and Safe Streets Act of 1968.’’.

14 SEC. 203. CAPITAL REPRESENTATION GRANTS.

15 Section 3006A of title 18, United States Code, is

16 amended—

17 (1) by redesignating subsections (i), (j), and (k)

18 as subsections (j), (k), and (l), respectively; and

19 (2) by inserting after subsection (h) the fol20 lowing:

21 ‘‘(i) CAPITAL REPRESENTATION GRANTS.—

22 ‘‘(1) DEFINITIONS.—In this subsection—

23 ‘‘(A) the term ‘capital case’—

24 ‘‘(i) means any criminal case in which

25 a defendant prosecuted in a State court is
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1 subject to a sentence of death or in which

2 a death sentence has been imposed; and

3 ‘‘(ii) includes all proceedings filed in

4 connection with the case, including trial,

5 appellate, and Federal and State post-con6 viction proceedings;

7 ‘‘(B) the term ‘defense services’ includes—

8 ‘‘(i) recruitment of counsel;

9 ‘‘(ii) training of counsel;

10 ‘‘(iii) legal and administrative support

11 and assistance to counsel;

12 ‘‘(iv) direct representation of defend13 ants, if the availability of other qualified

14 counsel is inadequate to meet the need in

15 the jurisdiction served by the grant recipi16 ent; and

17 ‘‘(v) investigative, expert, or other

18 services necessary for adequate representa19 tion; and

20 ‘‘(C) the term ‘Director’ means the Direc21 tor of the Administrative Office of the United

22 States Courts.

23 ‘‘(2) GRANT AWARD AND CONTRACT AUTHOR24 ITY.—Notwithstanding subsection (g), the Director

25 shall award grants to, or enter into contracts with,
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1 public agencies or private nonprofit organizations for

2 the purpose of providing defense services in capital

3 cases.

4 ‘‘(3) PURPOSES.—Grants and contracts award5 ed under this subsection shall be used in connection

6 with capital cases in the jurisdiction of the grant re7 cipient for 1 or more of the following purposes:

8 ‘‘(A) Enhancing the availability, com9 petence, and prompt assignment of counsel.

10 ‘‘(B) Encouraging continuity of represen11 tation between Federal and State proceedings.

12 ‘‘(C) Decreasing the cost of providing

13 qualified counsel.

14 ‘‘(D) Increasing the efficiency with which

15 such cases are resolved.

16 ‘‘(4) GUIDELINES.—The Director, in consulta17 tion with the Judicial Conference of the United

18 States, shall develop guidelines to ensure that de19 fense services provided by recipients of grants and

20 contracts awarded under this subsection are con21 sistent with applicable legal and ethical proscriptions

22 governing the duties of counsel in capital cases.

23 ‘‘(5) CONSULTATION.—In awarding grants and

24 contracts under this subsection, the Director shall

25 consult with representatives of the highest State
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1 court, the organized bar, and the defense bar of the

2 jurisdiction to be served by the recipient of the grant

3 or contract.’’.

4 TITLE III—COMPENSATING THE

5 UNJUSTLY CONDEMNED

6 SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

7 Section 2513 of title 28, United States Code, is

8 amended by striking subsection (e) and inserting the fol9 lowing:

10 ‘‘(e) DAMAGES.—

11 ‘‘(1) IN GENERAL.—The amount of damages

12 awarded in an action described in subsection (a)

13 shall not exceed $50,000 for each 12-month period

14 of incarceration, except that a plaintiff who was un15 justly sentenced to death may be awarded not more

16 than $100,000 for each 12-month period of incarcer17 ation.

18 ‘‘(2) FACTORS FOR CONSIDERATION IN ASSESS19 ING DAMAGES.—In assessing damages in an action

20 described in subsection (a), the court shall

21 consider—

22 ‘‘(A) the circumstances surrounding the

23 unjust conviction of the plaintiff, including any

24 misconduct by officers or employees of the Fed25 eral Government;
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1 ‘‘(B) the length and conditions of the un2 just incarceration of the plaintiff; and

3 ‘‘(C) the family circumstances, loss of

4 wages, and pain and suffering of the plaintiff.’’.

5 SEC. 302. COMPENSATION IN STATE DEATH PENALTY

6 CASES.

7 (a) CRIMINAL JUSTICE FACILITY CONSTRUCTION

8 GRANT PROGRAM.—Section 603(a) of title I of the Omni9 bus Crime Control and Safe Streets Act of 1968 (42

10 U.S.C. 3769b(a)) is amended—

11 (1) in paragraph (5), by striking ‘‘and’’ at the

12 end;

13 (2) in paragraph (6), by striking the period at

14 the end and inserting ‘‘; and’’; and

15 (3) by adding at the end the following:

16 ‘‘(7) reasonable assurance that the applicant, or

17 the State in which the applicant is located—

18 ‘‘(A) does not prescribe, authorize, or per19 mit the penalty of death for any offense; or

20 ‘‘(B)(i) has established and maintains an

21 effective procedure by which any person un22 justly convicted of an offense against the State

23 and sentenced to death may be awarded reason24 able damages upon substantial proof that the
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1 person did not commit any of the acts with

2 which the person was charged; and

3 ‘‘(ii)(I) the conviction of that person was

4 reversed or set aside on the ground that the

5 person was not guilty of the offense or offenses

6 of which the person was convicted;

7 ‘‘(II) the person was found not guilty of

8 such offense or offenses on new trial or rehear9 ing; or

10 ‘‘(III) the person was pardoned upon the

11 stated ground of innocence and unjust convic12 tion.’’.

13 (b) EFFECTIVE DATE.—The amendments made by

14 this section shall apply with respect to any application

15 submitted on or after the date that is 1 year after the

16 date of enactment of this Act.

17 TITLE IV—MISCELLANEOUS

18 PROVISIONS

19 SEC. 401. ACCOMMODATION OF STATE INTERESTS IN FED20 ERAL DEATH PENALTY PROSECUTIONS.

21 (a) RECOGNITION OF STATE INTERESTS.—Chapter

22 228 of title 18, United States Code, is amended by adding

23 at the end the following:
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1 ‘‘§ 3599. Accommodation of State interests; certifi2 cation requirement

3 ‘‘(a) IN GENERAL.—Notwithstanding any other pro4 vision of law, the Government shall not seek the death

5 penalty in any case initially brought before a district court

6 of the United States that sits in a State that does not

7 prescribe, authorize, or permit the imposition of such pen8 alty for the alleged conduct, except upon the certification

9 in writing of the Attorney General or the designee of the

10 Attorney General that—

11 ‘‘(1) the State does not have jurisdiction or re12 fuses to assume jurisdiction over the defendant with

13 respect to the alleged conduct;

14 ‘‘(2) the State has requested that the Federal

15 Government assume jurisdiction; or

16 ‘‘(3) the offense charged is an offense described

17 in section 32, 229, 351, 794, 1091, 1114, 1118,

18 1203, 1751, 1992, 2340A, or 2381, or chapter

19 113B.

20 ‘‘(b) ‘‘STATE DEFINED.—In this section, the term

21 ‘State’ means each of the several States of the United

22 States, the District of Columbia, and the territories and

23 possessions of the United States.’’.
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1 (b) TECHNICAL AND CONFORMING AMENDMENT.—

2 The analysis for chapter 228 of title 18, United States

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

‘‘3599. Accommodation of State interests; certification requirement.’’.

4 SEC. 402. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT

5 POSSIBILITY OF RELEASE.

6 Section 408(l) of the Controlled Substances Act (21

7 U.S.C. 848(l)), is amended by striking the first 2 sen8 tences and inserting the following: ‘‘Upon a recommenda9 tion under subsection (k) that the defendant should be

10 sentenced to death or life imprisonment without possibility

11 of release, the court shall sentence the defendant accord12 ingly. Otherwise, the court shall impose any lesser sen13 tence that is authorized by law.’’.

14 SEC. 403. RIGHT TO AN INFORMED JURY.

15 (a) ADDITIONAL REQUIREMENTS.—Section 20105 of

16 the Violent Crime Control and Law Enforcement Act of

17 1994 (42 U.S.C. 13705) is amended by striking subsection

18 (b) and inserting the following:

19 ‘‘(b) ADDITIONAL REQUIREMENTS.—To be eligible to

20 receive a grant under section 20103 or 20104, a State

21 shall provide assurances to the Attorney General that—

22 ‘‘(1) the State has implemented policies that

23 provide for the recognition of the rights and needs

24 of crime victims; and
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1 ‘‘(2) in any capital case in which the jury has

2 a role in determining the sentence imposed on the

3 defendant, the court, at the request of the defend4 ant, shall inform the jury of all statutorily author5 ized sentencing options in the particular case, in6 cluding applicable parole eligibility rules and

7 terms.’’.

8 (b) EFFECTIVE DATE.—The amendments made by

9 this section shall apply with respect to any application for

10 a grant under section 20103 or 20104 of the Violent

11 Crime Control and Law Enforcement Act of 1994 (42

12 U.S.C. 13703; 13704) that is submitted on or after the

13 date that is 1 year after the date of enactment of this

14 Act.

15 SEC. 404. ANNUAL REPORTS.

16 (a) REPORT.—Not later than 2 years after the date

17 of enactment of this Act, and annually thereafter, the At18 torney General shall prepare and transmit to Congress a

19 report concerning the administration of capital punish20 ment laws by the Federal Government and the States.

21 (b) REPORT ELEMENTS.—The report required under

22 subsection (a) shall include substantially the same cat23 egories of information as are included in the Bureau of

24 Justice Statistics Bulletin entitled ‘‘Capital Punishment
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1 1998’’ (December 1999, NCJ 179012), and the following

2 additional categories of information:

3 (1) The percentage of death-eligible cases in

4 which a death sentence is sought, and the percent5 age in which it is imposed.

6 (2) The race of the defendants in death-eligible

7 cases, including death-eligible cases in which a death

8 sentence is not sought, and the race of the victims.

9 (3) An analysis of the effect of Witherspoon v.

10 Illinois, 391 U.S. 510 (1968), and its progeny, on

11 the composition of juries in capital cases, including

12 the racial composition of such juries, and on the ex13 clusion of otherwise eligible and available jurors

14 from such cases.

15 (4) An analysis of the effect of peremptory

16 challenges, by the prosecution and defense respec17 tively, on the composition of juries in capital cases,

18 including the racial composition of such juries, and

19 on the exclusion of otherwise eligible and available

20 jurors from such cases.

21 (5) The percentage of capital cases in which life

22 without parole is available as an alternative to a

23 death sentence, and the sentences imposed in such

24 cases.
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1 (6) The percentage of capital cases in which life

2 without parole is not available as an alternative to

3 a death sentence, and the sentences imposed in such

4 cases.

5 (7) The percentage of capital cases in which

6 counsel is retained by the defendant, and the per7 centage in which counsel is appointed by the court.

8 (8) A comparative analysis of systems for ap9 pointing counsel in capital cases in different States.

10 (9) A State-by-State analysis of the rates of

11 compensation paid in capital cases to appointed

12 counsel and their support staffs.

13 (10) The percentage of cases in which a death

14 sentence or a conviction underlying a death sentence

15 is vacated, reversed, or set aside, and the reasons

16 therefore.

17 (c) PUBLIC DISCLOSURE.—The Attorney General or

18 the Director of the Bureau of Justice Assistance, as ap19 propriate, shall ensure that the reports referred to in sub20 section (a) are—

21 (1) distributed to national print and broadcast

22 media; and

23 (2) posted on an Internet website maintained

24 by the Department of Justice.
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1 SEC. 405. DISCRETIONARY APPELLATE REVIEW.

2 Section 2254(c) of title 28, United States Code, is

3 amended—

4 (1) by inserting ‘‘(1)’’ after ‘‘(c)’’; and

5 (2) by adding at the end the following:

6 ‘‘(2) For purposes of paragraph (1), if the highest

7 court of a State has discretion to decline appellate review

8 of a case or a claim, a petition asking that court to enter9 tain a case or a claim is not an available State court proce10 dure.’’.

11 SEC. 406. SENSE OF THE SENATE REGARDING THE EXECU12 TION OF JUVENILE OFFENDERS AND THE

13 MENTALLY RETARDED.

14 It is the sense of the Senate that the death penalty

15 is disproportionate and offends contemporary standards of

16 decency when applied to a person who is mentally retarded

17 or who had not attained the age of 18 years at the time

18 of the offense.

Æ