I
107TH CONGRESS
1ST SESSION
H. R. 912
To reduce the risk that innocent persons may be executed, and for other
purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 7, 2001
Mr. DELAHUNT (for himself, Mr. LAHOOD, Mr. CONYERS, Mr. BASS, Mr.
SCOTT, Mr. BOEHLERT, Mr. ABERCROMBIE, Mrs. EMERSON, Mr. ALLEN,
Mr. FOLEY, Mr. BALDACCI, Ms. HART, Ms. BALDWIN, Mr. HOUGHTON,
Mr. BARRETT of Wisconsin, Mr. KING, Ms. BERKLEY, Mr. MCHUGH, Mr.
BERMAN, Mrs. MORELLA, Mr. BLUMENAUER, Mr. PETRI, Mr. BONIOR,
Ms. PRYCE of Ohio, Ms. BROWN of Florida, Mr. QUINN, Mr. BROWN of
Ohio, Mr. RAMSTAD, Mr. CAPUANO, Mr. SCARBOROUGH, Ms. CARSON of
Indiana, Mr. SHAYS, Mrs. CHRISTENSEN, Mr. SMITH of New Jersey, Mr.
CLAY, Mr. UPTON, Mr. COYNE, Mr. WALSH, Mr. CROWLEY, Ms.
DEGETTE, Ms. DELAURO, Mr. ENGEL, Ms. ESHOO, Mr. EVANS, Mr.
FALEOMAVAEGA, Mr. FARR of California, Mr. FATTAH, Mr. FILNER, Mr.
FORD, Mr. FRANK, Mr. GONZALEZ, Mr. GUTIERREZ, Mr. HASTINGS of
Florida, Mr. HILLIARD, Mr. HINCHEY, Mr. HOEFFEL, Ms. HOOLEY of
Oregon, Mr. ISRAEL, Mr. JACKSON of Illinois, Ms. JACKSON-LEE of
Texas, Mr. JEFFERSON, Mr. KENNEDY of Rhode Island, Mr. KILDEE,
Ms. KILPATRICK, Mr. KIND, Mr. KUCINICH, Mr. LAFALCE, Mr.
LAMPSON, Mr. LANTOS, Ms. LEE, Mr. LEWIS of Georgia, Mr. LIPINSKI,
Mrs. LOWEY, Mr. LUTHER, Mr. MARKEY, Mrs. MCCARTHY of New York,
MS. MCCARTHY of Missouri, Ms. MCCOLLUM, Mr. MCDERMOTT, Mr.
MCGOVERN, Ms. MCKINNEY, Mr. MCNULTY, Mrs. MEEK of Florida, Mr.
MEEKS of New York, Mr. GEORGE MILLER of California, Mr. MOAKLEY,
Mr. MOORE, Mr. NADLER, Mr. NEAL of Massachusetts, Ms. NORTON,
Mr. OLVER, Mr. PASTOR, Mr. PAYNE, Ms. PELOSI, Mr. POMEROY, Mr.
PRICE of North Carolina, Ms. RIVERS, Mr. RODRIGUEZ, Mr. ROEMER,
Ms. SANCHEZ, Mr. SANDLIN, Mr. SAWYER, Ms. SCHAKOWSKY, Mr.
SHERMAN, Ms. SLAUGHTER, Mr. SMITH of Washington, Mr. STARK, Mr.
STUPAK, Mr. THOMPSON of Mississippi, Mr. TIERNEY, Mrs. JONES of
Ohio, Mr. UDALL of Colorado, Ms. VELA´ZQUEZ, Ms. WATERS, Mr. WATT
of North Carolina, Mr. WAXMAN, Mr. WEINER, Mr. WEXLER, and Mr.
WYNN) introduced the following bill; which was referred to the Committee
on the Judiciary
A BILL
To reduce the risk that innocent persons may be executed,
and for other purposes.
Be it enacted by the Senate and House of Representa-
tives 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
‘‘Innocence Protection Act of 2001’’.
(b) TABLE OF CONTENTS.—The table of contents for
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. Post-conviction DNA testing in Federal criminal justice system.
Sec. 103. Post-conviction DNA testing in State criminal justice systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.
Sec. 105. Grants to prosecutors for DNA testing programs.
TITLE II—ENSURING COMPETENT LEGAL SERVICES IN CAPITAL
CASES
Sec. 201. National Commission on Capital Representation.
Sec. 202. Capital defense incentive grants.
Sec. 203. Amendments to prison grant programs.
Sec. 204. Effect on procedural default rules.
Sec. 205. Capital defense resource grants.
TITLE III—MISCELLANEOUS PROVISIONS
Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.
Sec. 303. Certification requirement in Federal death penalty prosecutions.
Sec. 304. Alternative of life imprisonment without possibility of release.
Sec. 305. Right to an informed jury.
Sec. 306. Annual reports.
Sec. 307. Sense of Congress regarding the execution of juvenile offenders and
the mentally retarded.
TITLE I—EXONERATING THE IN-
NOCENT 
THROUGH 
DNA
TESTING
SEC. 101. FINDINGS AND PURPOSES.
(a) FINDINGS.—Congress makes the following find-
ings:
(1) Over the past decade, deoxyribonucleic acid
testing (referred to in this section as ‘‘DNA test-
ing’’) has emerged as the most reliable forensic tech-
nique for identifying criminals when biological mate-
rial is left at a crime scene.
(2) Because of its scientific precision, DNA
testing can, in some cases, conclusively establish the
guilt or innocence of a criminal defendant. In other
cases, DNA testing may not conclusively establish
guilt or innocence, but may have significant pro-
bative value to a finder of fact.
(3) While DNA testing is increasingly common-
place in pretrial investigations today, it was not
widely available in cases tried prior to 1994. More-
over, new forensic DNA testing procedures have
made it possible to get results from minute samples
that could not previously be tested, and to obtain
more informative and accurate results than earlier
forms of forensic DNA testing could produce. Con-
sequently, in some cases convicted inmates have
been exonerated by new DNA tests after earlier tests
had failed to produce definitive results.
(4) Since DNA testing is often feasible on rel-
evant biological material that is decades old, it can,
in some circumstances, prove that a conviction that
predated the development of DNA testing was based
upon incorrect factual findings. Uniquely, DNA evi-
dence showing innocence, produced decades after a
conviction, provides a more reliable basis for estab-
lishing a correct verdict than any evidence proffered
at the original trial. DNA testing, therefore, can and
has resulted in the post-conviction exoneration of in-
nocent men and women.
(5) In more than 80 cases in the United States,
DNA evidence has led to the exoneration of innocent
men and women who were wrongfully convicted.
This number includes at least 10 individuals sen-
tenced to death, some of whom came within days of
being executed.
(6) In more than a dozen cases, post-conviction
DNA testing that has exonerated an innocent person
has also enhanced public safety by providing evi-
dence that led to the identification of the actual per-
petrator.
(7) Experience has shown that it is not unduly
burdensome to make DNA testing available to in-
mates. The cost of that testing is relatively modest
and has decreased in recent years. Moreover, the
number of cases in which post-conviction DNA test-
ing is appropriate is small, and will decrease as pre-
trial testing becomes more common.
(8) Under current Federal and State law, it is
difficult to obtain post-conviction DNA testing be-
cause of time limits on introducing newly discovered
evidence. Under Federal law, motions for a new trial
based on newly discovered evidence must be made
within 3 years after conviction. In most States, those
motions must be made not later than 2 years after
conviction, and sometimes much sooner. The result
is that laws intended to prevent the use of evidence
that has become less reliable over time have been
used to preclude the use of DNA evidence that re-
mains highly reliable even decades after trial.
(9) The National Commission on the Future of
DNA Evidence, a Federal panel established by the
Department of Justice and comprised of law en-
forcement, judicial, and scientific experts, has urged
that post-conviction DNA testing be permitted in the
relatively small number of cases in which it is appro-
priate, notwithstanding procedural rules that could
be invoked to preclude that testing, and notwith-
standing the inability of an inmate to pay for the
testing.
(10) Since New York passed the Nation’s first
post-conviction DNA statute in 1994, only a few
States have adopted post-conviction DNA testing
procedures, and some of these procedures are unduly
restrictive. Moreover, only a handful of States have
passed legislation requiring that biological evidence
be adequately preserved.
(11) In 1994, Congress passed the DNA Identi-
fication Act, which authorized the construction of
the Combined DNA Index System, a national data-
base to facilitate law enforcement exchange of DNA
identification information, and authorized funding to
improve the quality and availability of DNA testing
for law enforcement identification purposes. In
2000, Congress passed the DNA Analysis Backlog
Elimination Act and the Paul Coverdell Forensic
Sciences Improvement Act, which together author-
ized an additional $908,000,000 over 6 years in
DNA-related grants.
(12) Congress should continue to provide finan-
cial assistance to the States to increase the capacity
of State and local laboratories to carry out DNA
testing for law enforcement identification purposes.
At the same time, Congress should insist that States
which accept financial assistance make DNA testing
available to both sides of the adversarial system in
order to enhance the reliability and integrity of that
system.
(13) In Herrera v. Collins, 506 U.S. 390
(1993), a majority of the members of the Court sug-
gested that a persuasive showing of innocence made
after trial would render the execution of an inmate
unconstitutional.
(14) It shocks the conscience and offends social
standards of fairness and decency to execute inno-
cent persons or to deny inmates the opportunity to
present persuasive evidence of their innocence.
(15) If biological material is not subjected to
DNA testing in appropriate cases, there is a signifi-
cant risk that persuasive evidence of innocence will
not be detected and, accordingly, that innocent per-
sons will be unconstitutionally executed.
(16) Given the irremediable constitutional harm
that would result from the execution of an innocent
person and the failure of many States to ensure that
innocent persons are not sentenced to death, a Fed-
eral statute assuring the availability of DNA testing
and a chance to present the results of testing in
court is a congruent and proportional prophylactic
measure to prevent constitutional injuries from oc-
curring.
(b) PURPOSES.—The purposes of this title are to—
(1) substantially implement the Recommenda-
tions of the National Commission on the Future of
DNA Evidence in the Federal criminal justice sys-
tem, by authorizing DNA testing in appropriate
cases;
(2) prevent the imposition of unconstitutional
punishments through the exercise of power granted
by clause 1 of section 8 and clause 2 of section 9
of article I of the Constitution of the United States
and section 5 of the 14th amendment to the Con-
stitution of the United States; and
(3) ensure that wrongfully convicted persons
have an opportunity to establish their innocence
through DNA testing, by requiring the preservation
of DNA evidence for a limited period.
SEC. 102. POST-CONVICTION DNA TESTING IN FEDERAL
CRIMINAL JUSTICE SYSTEM.
(a) IN GENERAL.—Part VI of title 28, United States
Code, is amended by inserting after chapter 155 the fol-
lowing:
‘‘CHAPTER 156—DNA TESTING
‘‘Sec.
‘‘2291. DNA testing.
‘‘2292. Preservation of evidence.
‘‘§ 2291. DNA testing
‘‘(a) APPLICATION.—Notwithstanding any other pro-
vision of law, a person convicted of a Federal crime may
apply to the appropriate Federal court for DNA testing
to support a claim that the person did not commit—
‘‘(1) the Federal crime of which the person was
convicted; or
‘‘(2) any other offense that a sentencing au-
thority may have relied upon when it sentenced the
person with respect to the Federal crime either to
death or to an enhanced term of imprisonment as a
career offender or armed career criminal.
‘‘(b) NOTICE TO GOVERNMENT.—The court shall no-
tify the Government of an application made under sub-
section (a) and shall afford the Government an oppor-
tunity to respond.
‘‘(c) PRESERVATION ORDER.—The court shall order
that all evidence secured in relation to the case that could
be subjected to DNA testing must be preserved during the
pendency of the proceeding. The court may impose appro-
priate sanctions, including criminal contempt, for the in-
tentional destruction of evidence after such an order.
‘‘(d) ORDER.—
‘‘(1) IN GENERAL.—The court shall order DNA
testing pursuant to an application made under sub-
section (a) upon a determination that—
‘‘(A) the evidence is still in existence, and
in such a condition that DNA testing may be
conducted;
‘‘(B) the evidence was never previously
subjected to DNA testing, or was not subject to
the type of DNA testing that is now requested
and that may resolve an issue not resolved by
previous testing;
‘‘(C) the proposed DNA testing uses a sci-
entifically valid technique; and
‘‘(D) the proposed DNA testing has the
scientific potential to produce new, noncumu-
lative evidence material to the claim of the ap-
plicant that the applicant did not commit—
‘‘(i) the Federal crime of which the
applicant was convicted; or
‘‘(ii) any other offense that a sen-
tencing authority may have relied upon
when it sentenced the applicant with re-
spect to the Federal crime either to death
or to an enhanced term of imprisonment as
a career offender or armed career criminal.
‘‘(2) LIMITATION.—The court shall not order
DNA testing under paragraph (1) if the Government
proves by a preponderance of the evidence that the
application for testing was made to unreasonably
delay the execution of sentence or administration of
justice, rather than to support a claim described in
paragraph (1)(D).
‘‘(3) TESTING PROCEDURES.—If the court or-
ders DNA testing under paragraph (1), the court
shall impose reasonable conditions on such testing
designed to protect the integrity of the evidence and
the testing process and the reliability of the test re-
sults.
‘‘(e) COST.—The cost of DNA testing ordered under
subsection (c) shall be borne by the Government or the
applicant, as the court may order in the interests of jus-
tice, except that an applicant shall not be denied testing
because of an inability to pay the cost of testing.
‘‘(f) COUNSEL.—The court may at any time appoint
counsel for an indigent applicant under this section pursu-
ant to section 3006A(a)(2)(B) of title 18.
‘‘(g) POST-TESTING PROCEDURES.—
‘‘(1) INCONCLUSIVE RESULTS.—If the results of
DNA testing conducted under this section are incon-
clusive, the court may order such further testing as
may be appropriate or dismiss the application.
‘‘(2) RESULTS UNFAVORABLE TO APPLICANT.—
If the results of DNA testing conducted under this
section inculpate the applicant, the court shall—
‘‘(A) dismiss the application;
‘‘(B) assess the applicant for the cost of
the testing; and
‘‘(C) make such further orders as may be
appropriate.
‘‘(3) RESULTS FAVORABLE TO APPLICANT.—If
the results of DNA testing conducted under this sec-
tion are favorable to the applicant, the court shall
order a hearing and thereafter make such further
orders as may be appropriate under applicable rules
and statutes regarding post-conviction proceedings,
notwithstanding any provision of law that would bar
such hearing or orders as untimely.
‘‘(h) RULES OF CONSTRUCTION.—
‘‘(2) FEDERAL
CRIME.—The term ‘Federal
crime’ includes a crime under the Uniform Code of
Military Justice.
‘‘§ 2292. Preservation of evidence
‘‘(a) IN GENERAL.—Notwithstanding any other pro-
vision of law and subject to subsection (b), the Govern-
ment shall preserve all evidence that was secured in rela-
tion to the investigation or prosecution of a Federal crime
(as that term is defined in section 2291(i)), and that could
be subjected to DNA testing, for not less than the period
of time that any person remains subject to incarceration
in connection with the investigation or prosecution.
‘‘(b) EXCEPTIONS.—The Government may dispose of
evidence before the expiration of the period of time de-
scribed in subsection (a) if—
‘‘(1) other than subsection (a), no statute, regu-
lation, court order, or other provision of law requires
that the evidence be preserved; and
‘‘(2)(A)(i) the Government notifies any person
who remains incarcerated in connection with the in-
vestigation or prosecution and any counsel of record
for such person (or, if there is no counsel of record,
the public defender for the judicial district in which
the conviction for such person was imposed), of the
intention of the Government to dispose of the evi-
dence and the provisions of this chapter; and
‘‘(ii) the Government affords such person not
less than 180 days after such notification to make
an application under section 2291(a) for DNA test-
ing of the evidence; or
‘‘(B)(i) 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
‘‘(ii) the Government takes reasonable measures
to remove and preserve portions of the material evi-
dence sufficient to permit future DNA testing.
‘‘(c) REMEDIES FOR NONCOMPLIANCE.—
‘‘(1) GENERAL LIMITATION.—Nothing in this
section shall be construed to give rise to a claim for
damages against the United States, or any employee
of the United States, any court official or officer of
the court, or any entity contracting with the United
States.
‘‘(2) CIVIL PENALTY.—
‘‘(A) IN GENERAL.—Notwithstanding para-
graph (1), an individual who knowingly violates
a provision of this section or a regulation pre-
scribed under this section shall be liable to the
United States for a civil penalty in an amount
not to exceed $1,000 for the first violation and
$5,000 for each subsequent violation, except
that the total amount imposed on the individual
for all such violations during a calendar year
may not exceed $25,000.
‘‘(B) PROCEDURES.—The provisions of
section 405 of the Controlled Substances Act
(21 U.S.C. 844a) (other than subsections (a)
through (d) and subsection (j)) shall apply to
the imposition of a civil penalty under subpara-
graph (A) in the same manner as such provi-
sions apply to the imposition of a penalty under
section 405.
‘‘(C) PRIOR CONVICTION.—A civil penalty
may not be assessed under subparagraph (A)
with respect to an act if that act previously re-
sulted in a conviction under chapter 73 of title
18.
‘‘(3) REGULATIONS.—
‘‘(A) IN GENERAL.—The Attorney General
shall promulgate regulations to implement and
enforce this section.
‘‘(B) CONTENTS.—The regulations shall
include the following:
‘‘(i) Disciplinary sanctions, including
suspension or termination from employ-
ment, for employees of the Department of
Justice who knowingly or repeatedly violate
a provision of this section.
‘‘(ii) An administrative procedure
through which parties can file formal com-
plaints with the Department of Justice al-
leging violations of this section.’’.
(b) CRIMINAL PENALTY.—Chapter 73 of title 18,
United States Code, is amended by inserting at the end
the following:
‘‘§ 1519. Destruction or altering of DNA evidence
‘‘Whoever willfully or maliciously destroys, alters,
conceals, or tampers with evidence that is required to be
preserved under section 2292 of title 28, United States
Code, with intent to—
‘‘(1) impair the integrity of that evidence;
‘‘(2) prevent that evidence from being subjected
to DNA testing; or
‘‘(3) prevent the production or use of that evi-
dence in an official proceeding,
shall be fined under this title or imprisoned not
more than 5 years, or both.’’.
(c) TECHNICAL AND CONFORMING AMENDMENTS.—
(1) The analysis for part VI of title 28, United
States Code, is amended by inserting after the item
relating to chapter 155 the following:
‘‘156. DNA testing ............................................................................... 2291’’.
(2) The table of contents for Chapter 73 of title
18, United States Code, is amended by inserting
after the item relating to section 1518 the following:
‘‘1519. Destruction or altering of DNA Evidence.’’.
SEC. 103. POST-CONVICTION DNA TESTING IN STATE CRIMI-
NAL JUSTICE SYSTEMS.
(a) CERTIFICATION REGARDING POST-CONVICTION
TESTING AND PRESERVATION OF DNA EVIDENCE.—If
any part of funds received from a grant made under a
program listed in subsection (b) is to be used to develop
or improve a DNA analysis capability in a forensic labora-
tory, or to collect, analyze, or index DNA samples for law
enforcement identification purposes, the State applying for
that grant must certify that it will—
(1) make post-conviction DNA testing available
to any person convicted of a State crime in a man-
ner consistent with section 2291 of title 28, United
States Code, and, if the results of such testing are
favorable to such person, allow such person to apply
for post-conviction relief, notwithstanding any provi-
sion of law that would bar such application as un-
timely; and
(2) preserve all evidence that was secured in re-
lation to the investigation or prosecution of a State
crime, and that could be subjected to DNA testing,
for not less than the period of time that such evi-
dence would be required to be preserved under sec-
tion 2292 of title 28, United States Code, if the evi-
dence were related to a Federal crime.
(b) PROGRAMS AFFECTED.—The certification re-
quirement established by subsection (a) shall apply with
respect to grants made under the following programs:
(1) DNA ANALYSIS
BACKLOG
ELIMINATION
GRANTS.—Section 2 of the DNA Analysis Backlog
Elimination Act of 2000 (Public Law 106–546).
(2) PAUL
COVERDELL
NATIONAL
FORENSIC
SCIENCES IMPROVEMENT GRANTS.—Part BB of title
I of the Omnibus Crime Control and Safe Streets
Act of 1968 (as added by Public Law 106–561).
(3) DNA IDENTIFICATION GRANTS.—Part X of
title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3796kk et seq.).
(4) DRUG
CONTROL
AND
SYSTEM
IMPROVE-
MENT GRANTS.—Subpart 1 of part E of title I of
the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3751 et seq.).
(5) PUBLIC SAFETY AND COMMUNITY POLICING
GRANTS.—Part Q of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C.
3796dd et seq.).
(c) EFFECTIVE DATE.—This section shall apply with
respect to any grant made on or after the date that is
1 year after the date of enactment of this Act.
SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE
14TH AMENDMENT.
(a) APPLICATION
FOR DNA TESTING.—No State
shall deny an application for DNA testing made by a pris-
oner in State custody who is under sentence of death, if
the proposed DNA testing has the scientific potential to
produce new, noncumulative evidence material to the claim
of the prisoner that the prisoner did not commit—
(1) the offense for which the prisoner was sen-
tenced to death; or
(2) any other offense that a sentencing author-
ity may have relied upon when it sentenced the pris-
oner to death.
(b) OPPORTUNITY TO PRESENT RESULTS OF DNA
TESTING.—No State shall rely upon a time limit or proce-
dural default rule to deny a prisoner in State custody who
is under sentence of death an opportunity to present in
an appropriate State court new, noncumulative DNA re-
sults that establish a reasonable probability that the pris-
oner did not commit an offense described in subsection
(a).
(c) REMEDY.—A prisoner in State custody who is
under sentence of death may enforce subsections (a) and
(b) in a civil action for declaratory or injunctive relief,
filed either in a State court of general jurisdiction or in
a district court of the United States, naming an executive
or judicial officer of the State as defendant.
(d) FINALITY RULE UNAFFECTED.—An application
under this section shall not be considered an application
for a writ of habeas corpus under section 2254 of title
28, United States Code, for purposes of determining
whether it or any other application is a second or succes-
sive application under section 2254.
SEC. 105. GRANTS TO PROSECUTORS FOR DNA TESTING
PROGRAMS.
Section 501(b) of title I of the Omnibus Crime Con-
trol and Safe Streets Act of 1968 (42 U.S.C. 3751(b))
is amended by—
(1) striking ‘‘and’’ at the end of paragraph
(25);
(2) striking the period at the end of paragraph
(26) and inserting ‘‘; and’’; and
(3) adding at the end the following:
‘‘(27) prosecutor-initiated programs to conduct
a systematic review of convictions to identify cases
in which DNA testing is appropriate and to offer
DNA testing to inmates in such cases.’’.
TITLE 
II—ENSURING 
COM-
PETENT LEGAL SERVICES IN
CAPITAL CASES
SEC. 201. NATIONAL COMMISSION ON CAPITAL REPRESEN-
TATION.
(a) ESTABLISHMENT.—There is established the Na-
tional Commission on Capital Representation (referred to
in this section as the ‘‘Commission’’).
(b) DUTIES.—The Commission shall—
(1) survey existing and proposed systems for
appointing counsel in capital cases, and the amounts
actually paid by governmental entities for capital de-
fense services; and
(2) formulate standards specifying the elements
of an effective system for providing adequate rep-
resentation, including counsel and investigative, ex-
pert, and other services necessary for adequate rep-
resentation, to—
(A) indigents charged with offenses for
which capital punishment is sought;
(B) indigents who have been sentenced to
death and who seek appellate or collateral re-
view in State court; and
(C) indigents who have been sentenced to
death and who seek certiorari review in the Su-
preme Court of the United States.
(c) ELEMENTS.—The elements of an effective system
described in subsection (b)(2) shall include—
(1) a centralized and independent appointing
authority, which shall—
(A) recruit attorneys who are qualified to
be appointed in the proceedings specified in
subsection (b)(2);
(B) draft and annually publish a roster of
qualified attorneys;
(C) draft and annually publish qualifica-
tions and performance standards that attorneys
must satisfy to be listed on the roster and pro-
cedures by which qualified attorneys are identi-
fied;
(D) periodically review the roster, monitor
the performance of all attorneys appointed, pro-
vide a mechanism by which members of the rel-
evant State Bar may comment on the perform-
ance of their peers, and delete the name of any
attorney who fails to satisfactorily complete reg-
ular training programs on the representation of
clients in capital cases, fails to meet perform-
ance standards in a case to which the attorney
is appointed, or otherwise fails to demonstrate
continuing competence to represent clients in
capital cases;
(E) conduct or sponsor specialized training
programs for attorneys representing clients in
capital cases;
(F) appoint lead counsel and co-counsel
from the roster to represent a client in a capital
case promptly upon receiving notice of the need
for an appointment from the relevant State
court; and
(G) report the appointment, or the failure
of the client to accept such appointment, to the
court requesting the appointment;
(2) adequate compensation of private attorneys
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 reflect-
ing the complexity and responsibility of capital
cases;
(3) reimbursement of private attorneys and
public defender organizations for attorney expenses
reasonably incurred in the representation of a client
in a capital case; and
(4) reimbursement of private attorneys and
public defender organizations for the reasonable
costs of law clerks, paralegals, investigators, experts,
scientific tests, and other support services necessary
in the representation of a client in a capital case.
(d) MEMBERSHIP.—
(1) NUMBER AND APPOINTMENT.—The Com-
mission shall be composed of 9 members, as follows:
(A) Four members appointed by the Presi-
dent on the basis of their expertise and emi-
nence within the field of criminal justice, 2 of
whom have 10 years or more experience in rep-
resenting defendants in State capital pro-
ceedings, including trial, direct appeal, or post-
conviction proceedings, and 2 of whom have 10
years or more experience in prosecuting defend-
ants in such proceedings.
(B) Two members appointed by the Con-
ference of Chief Justices, from among the mem-
bers of the judiciaries of the several States.
(C) Two members appointed by the Chief
Justice of the United States, from among the
members of the Federal Judiciary.
(D) The Chairman of the Committee on
Defender Services of the Judicial Conference of
the United States, or a designee of the Chair-
man.
(2) EX OFFICIO MEMBER.—The Executive Di-
rector of the State Justice Institute, or a designee
of the Executive Director, shall serve as an ex officio
nonvoting member of the Commission.
(3) POLITICAL AFFILIATION.—Not more than 2
members appointed under paragraph (1)(A) may be
of the same political party.
(4) GEOGRAPHIC DISTRIBUTION.—The appoint-
ment of individuals under paragraph (1) shall, to the
maximum extent practicable, be made so as to en-
sure that different geographic areas of the United
States are represented in the membership of the
Commission.
(5) TERMS.—Members of the Commission ap-
pointed under subparagraphs (A), (B), and (C) of
paragraph (1) shall be appointed for the life of the
Commission.
(6) DEADLINE
FOR
APPOINTMENTS.—All ap-
pointments to the Commission shall be made not
later than 45 days after the date of enactment of
this Act.
(7) VACANCIES.—A vacancy in the Commission
shall not affect its powers, and shall be filled in the
same manner in which the original appointment was
made.
(8) NO COMPENSATION.—Members of the Com-
mission shall serve without compensation for their
service.
(9) TRAVEL EXPENSES.—Members of the Com-
mission shall receive travel expenses, including per
diem in lieu of subsistence, in accordance with sec-
tions 5702 and 5703 of title 5, United States Code.
(10) QUORUM.—A majority of the members of
the Commission shall constitute a quorum, but a
lesser number may hold hearings.
(11) INITIAL MEETING.—The initial meeting of
the Commission shall occur not later than 30 days
after the date on which all initial members of the
Commission have been appointed.
(12) CHAIRPERSON.—At the initial meeting of
the Commission, a majority of the members of the
Commission present and voting shall elect a Chair-
person from among the members of the Commission
appointed under paragraph (1).
(e) STAFF.—
(1) IN
GENERAL.—The Commission may ap-
point and fix the pay of such personnel as the Com-
mission considers appropriate.
(2) EXPERTS AND CONSULTANTS.—The Com-
mission may procure temporary and intermittent
services under section 3109(b) of title 5, United
States Code.
(f) POWERS.—
(1) INFORMATION-GATHERING
ACTIVITIES.—
The Commission may, for the purpose of carrying
out this section, hold hearings, receive public com-
ment and testimony, initiate surveys, and undertake
such other activities to gather information as the
Commission may find advisable.
(2) OBTAINING OFFICIAL INFORMATION.—The
Commission may secure directly from any depart-
ment or agency of the United States such informa-
tion as the Commission considers necessary to carry
out this section. Upon request of the chairperson of
the Commission, the head of that department or
agency shall provide such information, except to the
extent prohibited by law.
(3) ADMINISTRATIVE
SUPPORT
SERVICES.—
Upon the request of the Commission, the Adminis-
trator of General Services shall provide to the Com-
mission, on a reimbursable basis, the administrative
support services necessary for the Commission to
carry out its responsibilities under this section.
(4) POSTAL SERVICES.—The Commission may
use the United States mails in the same manner and
under the same conditions as other departments and
agencies of the United States.
(g) REPORT.—
(1) IN GENERAL.—The Commission shall sub-
mit a report to the President and the Congress be-
fore the end of the 1-year period beginning after the
first meeting of all members of the Commission.
(2) CONTENTS.—The report submitted under
paragraph (1) shall contain—
(A) a comparative analysis of existing and
proposed systems for appointing counsel in cap-
ital cases, and the amounts actually paid by
governmental entities for capital defense serv-
ices; and
(B) such standards as are formulated by
the Commission pursuant to subsection (b)(2),
together with such commentary and rec-
ommendations as the Commission considers ap-
propriate.
(h) TERMINATION.—The Commission shall terminate
90 days after submitting the report under subsection (g).
(i) EXPENSES OF COMMISSION.—There are author-
ized to be appropriated to pay any expenses of the Com-
mission such sums as may be necessary not to exceed
$1,000,000. Any sums appropriated for such purposes are
authorized to remain available until expended, or until the
termination of the Commission pursuant to subsection (h),
whichever occurs first.
SEC. 202. CAPITAL DEFENSE INCENTIVE GRANTS.
The State Justice Institute Act of 1984 (42 U.S.C.
10701 et seq.) is amended by inserting after section 207
the following:
‘‘SEC. 207A. CAPITAL DEFENSE INCENTIVE GRANTS.
‘‘(a) PROGRAM AUTHORIZED.—The State Justice In-
stitute (referred to in this section as the ‘Institute’) may
make grants to State agencies and organizations respon-
sible for the administration of standards of legal com-
petence for counsel in capital cases, for the purposes of—
‘‘(1) implementing new mechanisms or sup-
porting existing mechanisms for providing represen-
tation in capital cases that comply with the stand-
ards promulgated by the National Commission on
Capital Representation pursuant to section 201(b) of
the Innocence Protection Act of 2001; and
‘‘(2) otherwise improving the quality of legal
representation in capital cases.
‘‘(b) USE OF FUNDS.—Funds made available under
this section may be used for any purpose that the Institute
determines is likely to achieve the purposes described in
subsection (a), including—
‘‘(1) training and development of training ca-
pacity to ensure that attorneys assigned to capital
cases meet such standards;
‘‘(2) augmentation of attorney, paralegal, inves-
tigator, expert witness, and other staff and services
necessary for capital defense; and
‘‘(3) development of new mechanisms for ad-
dressing complaints about attorney competence and
performance in capital cases.
‘‘(c) APPLICATIONS.—
‘‘(1) IN
GENERAL.—No grant may be made
under this section unless an application has been
submitted to, and approved by, the Institute.
‘‘(2) APPLICATION.—An application for a grant
under this section shall be submitted in such form,
and contain such information, as the Institute may
prescribe by regulation or guideline.
‘‘(3) CONTENTS.—In accordance with the regu-
lations or guidelines established by the Institute,
each application for a grant under this section
shall—
‘‘(A) include a long-term strategy and de-
tailed implementation program that reflects
consultation with the organized bar of the
State, the highest court of the State, and the
Attorney General of the State, and reflects con-
sideration of a statewide strategy; and
‘‘(B) specify plans for obtaining necessary
support and continuing the proposed program
following the termination of Federal support.
‘‘(d) RULES AND REGULATIONS.—The Institute may
issue rules, regulations, guidelines, and instructions, as
necessary, to carry out the purposes of this section.
‘‘(e) TECHNICAL ASSISTANCE AND TRAINING.—To
assist and measure the effectiveness and performance of
programs funded under this section, the Institute may
provide technical assistance and training, as required.
‘‘(f) GRANT PERIOD.—A grant under this section
shall be made for a period not longer than 3 years, but
may be renewed on such terms as the Institute may re-
quire.
‘‘(g) LIMITATIONS ON USE OF FUNDS.—
‘‘(1) NONSUPPLANTING REQUIREMENT.—Funds
made available under this section shall not be used
to supplant State or local funds, but shall be used
to supplement the amount of funds that would, in
the absence of Federal funds received under this sec-
tion, be made available from States or local sources.
‘‘(2) FEDERAL SHARE.—The Federal share of a
grant made under this part may not exceed—
‘‘(A) for the first fiscal year for which a
program receives assistance, 75 percent of the
total costs of such program; and
‘‘(B) for subsequent fiscal years for which
a program receives assistance, 50 percent of the
total costs of such program.
‘‘(3) ADMINISTRATIVE COSTS.—A State agency
or organization may not use more than 5 percent of
the funds it receives from this section for adminis-
trative expenses, including expenses incurred in pre-
paring reports under subsection (h).