performance. An existing public defender system may comply if it implements the proper standards and procedures. Capital defense lawyers should be adequately compensated, and the defense should be provided with adequate funding for experts and investigators. The current Supreme Court standard for effective assistance of counsel (Strickland v. Washington) is poorly suited to capital cases. It should be replaced in such cases by a standard requiring professional competence in death penalty representa tion. II. PROHIBITING EXECUTION IN CASES INVOLVING QUESTIONABLE CATEGORIES OF DEFENDANTS AND HOMICIDES Mentally retarded persons should not be eligible for the death penalty. Persons under the age of eighteen at the time the crime was committed should not be eligible for the death penalty. Persons convicted of felony murder, and who did not kill, intend to kill, or intend that a killing take place, should not be eligible for the death penalty. III. EXPANDING AND EXPLAINING LIFE WITHOUT PAROLE (LWOP) Life without the possibility of parole should be a sentencing option in all death penalty cases in every jurisdiction that imposes capital punishment. The judge should inform the jury in a capital sentencing proceeding about all statutorily authorized sentencing options, including the true length of a sentence of life without parole. This is commonly known as "truth in sentencing." IV. SAFEGUARDING RACIAL FAIRNESS All jurisdictions that impose the death penalty should create mechanisms to help ensure that the death penalty is not imposed in a racially discriminatory manner. V. PROPORTIONALITY REVIEW Every state should adopt procedures for ensuring that death sentences are meted out in a proportionate manner to make sure that the death penalty is being administered in a rational, nonarbitrary, and even-handed fashion, to provide a check on broad prosecutorial discretion, and to prevent discrimination from playing a role in the capital decision-making process. VI. PROTECTION AGAINST WRONGFUL CONVICTION AND SENTENCE DNA evidence should be preserved and it should be tested and introduced in cases where it may help to establish that an execution would be unjust. All jurisdictions that impose capital punishment should ensure adequate mechanisms for introducing newly discovered evidence that would more likely than not produce a different outcome at trial or that would undermine confidence that the sentence is reliable, even though the defense would otherwise be prevented from introducing the evidence because of procedural barriers. VII. DUTY OF JUDGE AND ROLE OF JURY If a jury imposes a life sentence, the judge in the case should not be allowed to "override" the jury's recommendation and replace it with a sentence of death. The judge in a death penalty trial should instruct the jury at sentencing that if any juror has a lingering doubt about the defendant's guilt, that doubt may be considered as a "mitigating" circumstance that weighs against a death sentence. The judge in a death penalty trial must ensure that each juror understands his or her individual obligation to consider mitigating factors in deciding whether a death sentence is appropriate under the circumstances. VIII. ROLE OF PROSECUTORS Prosecutors should provide "open-file discovery" to the defense in death penalty cases. Prosecutors' offices in jurisdictions with the death penalty must develop effective systems for gathering all relevant information from law enforcement and investigative agencies. Even if a jurisdiction does not adopt open-file discovery, it is especially critical in capital cases that the defense be given all favorable evidence (Brady material), and that the jurisdiction create systems to gather and review all potentially favorable information from law enforcement and investigative agencies. Prosecutors should establish internal guidelines on seeking the death penalty in cases that are built exclusively on types of evidence (stranger eyewitness identifica tions and statements of informants and co-defendants) particularly subject to human error. Prosecutors should engage in a period of reflection and consultation before any decision to seek the death penalty is made or announced. BLACK LETTER RECOMMENDATIONS I. EFFECTIVE COUNSEL 1) Creation of Independent Appointing Authorities Each state should create or maintain a central, independent appointing authority whose role is to “recruit, select, train, monitor, support, and assist❞ attorneys who represent capital clients (ABA Report). The authority should be composed of attorneys knowledgeable about criminal defense in capital cases, and who will operate independent of conflicts of interest with judges, prosecutors, or any other parties. This authority should adopt and enforce a set of minimum standards for appointed counsel at all stages of capital cases, including state or federal post-conviction and certiorari. An existing statewide public defender office or other assigned counsel program should meet the definition of a central appointing authority, providing it implements the proper standards and procedures. 2) Provision of Competent and Adequately Compensated Counsel at All States of Capital Litigation and Provision of Adequate Funding for Expert and Investigative Services Every capital defendant should be provided with qualified and adequately compensated attorneys at every stage of the capital proceeding, including state and federal postconviction and certiorari. Each jurisdiction should adopt a stringent and uniform set of qualifications for capital defense at each stage of the proceedings. Capital attorneys should be guaranteed adequate compensation for their services, at a level that reflects the "extraordinary responsibilities inherent in death penalty litigation" (ABA Report). Such compensation should be set according to actual time and service performed, and should be sufficient to ensure that an attorney meeting his or her professional responsibility to provide competent representation will receive compensation adequate for reasonable overhead; reasonable litigation expenses; reasonable expenses for expert, investigative, support, and other services; and a reasonable return. 3) Replacement of the Strickland v. Wahsington Standard for Effective Assistance of Counsel at Capital Sentencing Every state that permits the death penalty should adopt a more demanding standard to replace the current test for effective assistance of counsel in the capital sentencing context. Counsel should be required to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, be zealously committed to the capital case, and possess adequate time and resources to prepare. (NLADA Standards) Once a defendant has demonstrated that his or her counsel fell below the minimum standard of professional competence in death penalty litigation, the burden should shift to the state to demonstrate that the outcome of the sentencing hearing was not affected by the attorney's incompetence. Moreover, there should be a strong presumption in favor of the attorney's obligation to offer at least some mitigating evidence. II. PROHIBITING EXECUTION IN CASES INVOLVING QUESTIONABLE CATEGORIES OF DEFENDANTS AND HOMICIDES To reduce the unacceptably high risk of wrongful execution in certain categories of cases, to ensure that the death penalty is reserved for the most culpable offenders, and to effectuate the deterrent and retributive purposes of the death penalty, jurisdictions should limit the cases eligible for capital punishment to exclude those involving (1) the mentally retarded; (2) persons under the age of eighteen at the time of the crimes for which they were convicted; and (3) those convicted of felony murder who did not kill, intend to kill, or intend that a killing occur. III. EXPANDING AND EXPLAINING LIFE WITHOUT PAROLE (LWOP) 1) Availability of Life Sentence without Parole In all capital cases, the sentencer should be provided with the option of a life sentence without the possibility of parole. 2) Meaning of Life Sentence without Parole (Truth in Sentencing) At the sentencing phase of any capital case in which the jury has a role in determining the sentence imposed on the defendant, the court shall inform the jury of the minimum length of time those convicted of murder must serve before being eligible for parole. However, the trial court should not make statements or give instructions suggesting that the jury's verdict will or may be reviewed or reconsidered by anyone else, or that any sentence it imposes will or may be overturned or commuted. IV. SAFEGUARDING RACIAL FAIRNESS Each jurisdiction should undertake a comprehensive program to help ensure that racial discrimination plays no role in its capital punishment system, and to thereby enhance public confidence in the system. Because these issues are so complex and difficult, two approaches are appropriate. One very important component-perhaps the most important—is the rigorous gathering of data on the operation of the capital punishment system and the role of race in it. A second component is to bring members of all races into every level of the decision-making process. V. PROPORTIONALITY REVIEW In order to (1) ensure that the death penalty is being administered in a rational, non-arbitrary, and even-handed manner; (2) provide a check on broad prosecutorial discretion; and (3) prevent discrimination from playing a role in the capital decisionmaking process, every state should adopt procedures for ensuring that death sentences are meted out in a proportionate manner. VI. PROTECTION AGAINST WRONGFUL CONVICTION AND SENTENCE 1) Preservation and Use of DNA Evidence to Establish Innocence or Avoid Unjust Execution In cases where the defendant has been sentenced to death, states and the federal government should enact legislation that requires the preservation and permits the testing of biological materials not previously subjected to effective DNA testing, where such preservation or testing may produce evidence favorable to the defendant and relevant to the claim that he or she was wrongfully convicted or sentenced. These laws should provide that biological materials must be generally preserved and that, as to convicted defendants, existing biological materials must be preserved until defendants can be notified and provided an opportunity to request testing under the jurisdiction's DNA testing requirements. These laws should provide for the use of public fimds to conduct the testing and to appoint counsel where the convicted defendant is indigent. If exculpatory evidence is produced by such testing, notwithstanding other procedural bars or time limitations, legislation should provide that the evidence may be presented at a hearing to determine whether the conviction or sentence was wrongful. If the conviction or sentence is shown to be erroneous, the legislation should require that the conviction or sentence be vacated. 2) Lifting Procedural Barriers to Introduction of Exculpatory Evidence State and federal courts should ensure that every capital defendant is provided an adequate mechanism for introducing newly discovered evidence that would otherwise be procedurally barred, where it would more likely than not produce a different outcome at trial, or where it would undermine confidence in the reliability of the sentence. VII. DUTY OF JUDGE AND ROLE OF JURY 1) Eliminating Authorization for Judicial Override of a Jury's Recommendation of a Life Sentence to Impose a Sentence of Death Judicial override of a jury's recommendation of life imprisonment to impose a sentence of death should be prohibited. Where a court determines that a death sentence would be disproportionate, where it believes doubt remains as to the guilt of one sentenced to death, or where the interests of justice require it, the trial court should be granted authority to impose a life sentence despite the jury's recommendation of death. 2) Lingering (Residual) Doubt The trial judge, in each case in which he or she deems such an instruction appropriate, should instruct the jury, at the conclusion of the sentencing phase of a capital case and before the jury retires to deliberate, as follows: "If you have any lingering doubt as to the defendant's guilt of the crime or any element of the crime, even though that doubt did not rise to the level of a reasonable doubt when you found the defendant guilty, you may consider that doubt as a mitigating circumstance weighing against a death sentence for the defendant." 3) Ensuring That Capital Sentencing Juries Understand Their Obligation to Consider Mitigating Factors Every judge presiding at a capital sentencing hearing has an affirmative obligation to ensure that the jury fully and accurately understands the nature of its duty. The judge must clearly communicate to the jury that it retains the ultimate moral decision-making power over whether the defendant lives or dies, and must also communicate that (1) mitigating factors do not need to be found by all members of the jury in order to be considered in the individual juror's sentencing decision, and (2) mitigating circumstances need to be proved only to the satisfaction of the individual juror, and not beyond a reasonable doubt, to be considered in the juror's sentencing decision. In light of empirical evidence documenting serious juror confusion on the nature of the jury's obligation, judges must ensure that jurors understand, for example, that this decision rests in the jury's hands, that it is not a mechanical decision to be discharged by a numerical tally of aggravating and mitigating factors, that it requires the jury to consider the defendant's mitigating evidence, and that it permits the jury to decline to sentence the defendant to death even if sufficient aggravating factors exist. The judge's obligation to ensure that jurors understand the scope of their moral authority and duty is affirmative in nature. Judges should not consider it discharged simply because they have given standard jury instructions. If judges have reason to think such instructions may be misleading, they should instruct the jury in more accessible and less ambiguous language. In addition, if the jury asks for clarification on these difficult and crucial issues, judges should offer clarification and not simply direct the jury to reread the instructions. VIII. ROLE OF PROSECUTORS 1) Providing Expanded Discovery in Death Penalty Cases and Ensuring That in Death Penalty Prosecutions Exculpatory Information Is Provided to the Defense Because of the paramount interest in avoiding the execution of an innocent person, special discovery provisions should be established to govern death penalty cases. These provisions should provide for discovery from the prosecution that is as full and complete as possible, consistent with the requirements of public safety. Full "open-file" discovery should be required in capital cases. However, discovery of the prosecutor's files means nothing if the relevant information is not contained in those files. Thus, to make discovery effective in death penalty cases, the prosecution must obtain all relevant information from all agencies involved in investigating the case or analyzing evidence. Disclosure should be withheld only when the prosecution clearly demonstrates that restrictions are required to protect witnesses' safety or shows similarly substantial threats to public safety. If a jurisdiction fails to adopt full open-file discovery for its capital cases, it must ensure that it provides all exculpatory (Brady) evidence to the defense. In order to ensure compliance with this obligation, the prosecution should be required to certify that (1) it has requested that all investigative agencies involved in the investigation of the case and examination of evidence deliver to it all documents, information, and materials relevant to the case and that the agencies have indicated their compliance; (2) a named prosecutor or prosecutors have inspected all these materials to determine if they contain any evidence favorable to the defense as to either guilt or sentencing; and (3) all arguably favorable information has been either provided to the defense or submitted to the trial judge for in camera review to determine whether such evidence meets the Brady standards of helpfulness to the defense and materiality to outcome. When willful violations of Brady duties are found, meaningful sanctions should be imposed. 2) Establishing Internal Prosecutorial Guidelines or Protocols on Seeking the Death Penalty Where Questionable Evidence Increases the Likelihood That the Innocent Will Be Executed Because eyewitness identifications by strangers are fallible, co-defendants are prone to lie and blame other participants in order to reduce their own guilt or sentence, and jailhouse informants frequently have the opportunity and the clear motivation to fabricate evidence to benefit their status at the expense of justice, prosecutors should establish guidelines limiting reliance on such questionable evidence in death penalty cases. The guidelines should put that penalty off limits where the guilt of the defendant or the likelihood of receiving a capital sentence depends upon 79-994 D-5 these types of evidence and where independent corroborating evidence is unavailable. 3) Requiring Mandatory Period of Consultation before Commencing Death Penalty Prosecution Before the decision to prosecute a case capitally is announced or commenced, a specified time period should be set aside during which the prosecution is to examine the propriety of seeking the death penalty and to consult with appropriate officials and parties. Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of Illinois In the course of the past seventeen months since Governor George Ryan declared a moratorium on all executions in my home state of Illinois, a healthy national debate on the topic of death penalty has ensued. I want to thank Chairman Leahy for continuing to keep this issue in the forefront of our national agenda by holding this hearing today. We cannot understate the importance of having competent counsel represent a person charged with a crime, especially if that person faces the ultimate penalty of death. Like prosecutors, defense attorneys play an integral role in our adversarial process. The criminal justice system works best when both sides are adequately represented as this judicial process is the most effective means of getting at truth and rendering justice. But we cannot forget that for many criminal defendants, it is simply not possible to hire the best lawyers in town to represent them. For them, their only hope is to pray that the public defender or court-appointed counsel they will end up getting is an experienced lawyer with competence and conscience. But we have seen that often, this is a luck of the draw. We have all read about attorneys who were appointed to defend capital cases even though they have never handled a criminal case before, or attorneys who sleep through trials, or show up in court under influence of alcohol. It has often been said that "it is better to be rich and guilty than poor and innocent." I hope this statement does not reflect the real state of affairs in the American criminal justice system. The witnesses we will hear from today will hopefully tell us that getting assigned an incompetent counsel is the rare exception rather than the norm. If not, it is incumbent upon this Senate to act in the best interest of our criminal justice system by identifying the causes of these problems, and providing innovative and common sense legislative solutions. That is why today, I reintroduced a bipartisan legislation with Senator Chafee to provide student loan forgiveness for public defenders under the Federal Perkins Loan program. The Higher Education Act of 1965 already provides loan forgiveness for law enforcement officers, which the Department of Education interprets to include prosecuting attorneys. But the Department's interpretation excludes public defense attorneys. This policy creates an obvious disparity of resources between public defenders and prosecutors by encouraging talented law students and lawyers to pursue public service as prosecutors but not as defenders. My bill provides parity to full-time public defenders who play an equally important role in the adversarial process of our judicial system. Like prosecuting attorneys, public defenders are law enforcement officers dedicated to upholding, protecting, and enforcing our laws. Providing loan forgiveness incentive to these attorneys will lead to a larger pool of competent counsel to defend death penalty cases, which is consistent with the goals set forth by the Supreme Court to equalize access to legal resources. Question submitted by Hon. Richard J. Durbin to William H. Pryor, Jr., Alabama State Attorney General In your prepared testimony, you state: "If your concern is to protect the innocent from being executed, then you need not worry; it's not occurring and is highly unlikely to occur." Question: In Illinois, Governor Ryan declared a moratorium on the death penalty after 13 death row accused were found to be innocent during the same time that |