Legislation to provide death row inmates with better access to DNA evidence and qualified lawyers is gathering momentum in Congress, fueled by recent Supreme Court decisions and high-profile exonerations of prisoners who had been sentenced to die.
An unusual bipartisan coalition, consisting of death penalty supporters and opponents, has coalesced behind a package of criminal justice revisions that could make it easier for defendants and convicted offenders to prove their innocence.
The Innocence Protection Act, H.R. 912, is endorsed by a majority of House members and was recently approved by the Senate Judiciary Committee. Rep. William D. Delahunt (D-Mass.) and Rep. Ray LaHood (R-Ill.) have spent more than two years enlisting 240 sponsors for the bill. Rep. Delahunt, a former prosecutor, said "a convergence" of developments helped his cause. A mounting list of exonerations and two Supreme Court rulings last month—one prohibiting the execution of mentally retarded convicts and another requiring juries rather than judges to deliver death sentences—have prompted many lawmakers to question how the death penalty is administered.
"There's an increasing awareness of the fallibility of the system," said Delahunt, a former prosecutor.
Rep. Dana Rohrabacher (R-Calif.), one of sixty-four Republicans backing the bill, said he is now convinced prosecutors are as prone to making mistakes as some of the federal bureaucrats he likes to skewer. "But in this case, innocent lives are at stake," Rohrabacher said. "I don't mind eliminating someone we know is guilty, but we need to do everything possible to determine that person is guilty."
The bill has also been introduced in the Senate as S. 486. It is sponsored by Senators Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.), who also is a former prosecutor.
Senator Leahy explained the importance of the bill at a recent Senate Judiciary Committee meeting:
A year ago, I spoke of 96 exonerated capital prisoners. Now we have reached 101. Ray Krone, the 100th capital prisoner to be exonerated, is here today. After serving ten years in prison, three of them spent on death row, Ray Krone was proven innocent. DNA evidence pointed squarely to the real killer in that case, a man who went on to sexually assault another woman while Ray Krone served time for the murder he committed. On its front page today, USA Today tells Ray Krone's story and reports on how shabbily our federal and state laws often treat exonerees like Ray for their time lost behind bars. After more than a decade in state prison, Ray Krone got an apology from the prosecutor and fifty dollars, and he was sent on his way. Now, the official reporter transcribing this hearing and those watching on C-SPAN might not believe what they just heard, so I will repeat it. After wrongfully spending ten years, three months and nine and a half days in prison, Ray Krone was given the sum of fifty dollars to start his life over.
There are some differences between the House and Senate versions of the bill, but both would give states incentives to preserve DNA evidence, allow inmates access to such material and provide qualified legal counsel for capital crime defendants. Lawmakers would use federal funds to encourage states to reform the current system. This is necessary because the vast majority of death row inmates, 3,669 out of 370, are in state prisons.
Although more than one hundred death row inmates have been exonerated since 1973—a dozen on DNA evidence—gaining access to such material can prove difficult. According to Innocence Project executive director Nina Morrison, whose group seeks to clear death row inmates using genetic material, three times out of four the evidence has been lost or destroyed.
"The right to test is an empty one when there's no evidence left to test," Morrison said, noting that only twenty-seven states have laws addressing DNA evidence. The legislation, she argued, would "replace an inadequate, often confusing patchwork of state DNA testing laws with a uniform national standard that is fair and easy to apply."
The House and Senate bills take slightly different approaches to providing death penalty defendants with competent attorneys, another factor in wrongful convictions. The House measure establishes a national commission that would develop universal standards for legal representation, provides $50 million in its first year to help states implement the panel's recommendations, and penalizes states that fail to adopt a new standard for defense counsel. The Senate bill would allow states to create their own attorney programs and, if they failed to do so, offer the federal funds to nonprofit defense groups.
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