12 people were executed by the state. How can you be so certain of a system which fails so often when the most severe punishment is involved?

Question submitted by Hon. Richard J. Durbin to Stephen B. Bright, Southern Center for Human Rights

You have stated that the old adage, “you get what you pay for," applies with particular force in the legal system, and many states pay very little to lawyers appointed to defend capital cases. You also indicate that in my home state of Illinois and in two other states, studies have found that a significant number of those sentenced to death were represented by lawyers who were later disbarred, suspended, or convicted of crimes.

I am concerned about the quality of counsel that are assigned to criminal cases; particular for those who face the death penalty. I believe that a part of the problem is the lack of financial incentives for potential lawyers to take on criminal defense work.

That is why I recently introduced bipartisan legislation to provide student loan forgiveness for public defenders under the Federal Perkins Loan program (S.1112). 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. Providing loan forgiveness incentive to these attorneys will lead to a larger pool of competent counsel to defend death penalty cases.

Question: Do you agree that there are disparities in resources available to prosecutors versus defenders? How would you recommend we address these disparities?

Statement of Equal Justice Initiative, Bryan A. Stevenson,1 Executive Director, Montgomery, Alabama

Thank you for the opportunity to address the much needed legislation pending before this Committee. The "Innocence Protection Act" is an enormously important step forward in the effort to improve the administration of criminal justice in the United States. DNA testing technology has dramatically advanced forensic science and criminal case investigations. However, unless addressed, the current crisis surrounding adequate legal assistance to death row prisoners and capital defendants will seriously compromise any meaningful, reform which attempts to reduce the incidence of wrongful convictions and executions through DNA testing.

The Innocence Protection Act will do much to restore confidence in many criminal cases where biological. evidence can resolve lingering questions about guilt or innocence. Our nation's status as the worlds leading democracy and our activism on human rights in the international context requires us to take all steps possible to protect against wrongful convictions and execution of the innocent. Improved procedures for postconviction DNA testing will tremendously aid the goal of more reliable and equitable administration of criminal justice. However, it is worth emphasizing that DNA testing will influence a relatively small subset of cases where innocent people have been wrongly convicted. Improved, access to DNA testing for. prisoners will be useful only in those cases where (1) biological evidence can determinatively establish guilt or innocence, most notably rape, rape-murder and sexual assault cases, (2) the accused is still in prison or on death row and, most likely, had his case tried before 1994, and (3) the biological evidence has been preserved and is still available for testing. This is a relatively fixed and finite universe of cases.

1I am the Executive Director of the Equal Justice Initiative (EJI) in Montgomery, Alabama. I have represented capital defendants and death row prisoners for nearly 17 years. I am also an Assistant Professor of Law at the New York University School of Law where I teach, among other things, Postconviction Remedies, Capital Punishment Law and Litigation, and Race, Poverty and Criminal Justice. I have handled dozens of capital cases, conducted postconviction litigation in the capital and noncapital areas and consulted on these matters for many years.

In most instances postconviction DNA testing has required the assistance of counsel to accomplish the exoneration of an innocent person who has been wrongly comvicted of a crime. The provisions in the Innocence Protection Acr for improving defense services to prisoners who have been wrongly convicted are thus crucial to the effectiveness of any effort to protect innocent people from wrongful incarceration or execution.

THE CRISIS SURROUNDING LEGAL REPRESENTATION OF DEATH ROW PRISONERS

In the last 30 years the number of people incarcerated in the United States has increased dramatically. In 1972, there were 200,000 people in jails and prisons. Today there are over 2,000,000 people incarcerated. The dramatic increase in the number of people imprisoned has presented enormous challenges to the fair administration of criminal justice.

The extraordinary increase in the number of people prosecuted and imprisoned has strained the ability of state governments to provide adequate legal representation to the accused or the indigent and to protect against wrongful conviction of the innocent.

In the death penalty arena this problem is especially acute. There are now close to 3,900 people on death row in the United States. Hundreds of these condemned prisoners have no legal representation. The ability of indigent death row prisoners to find competent legal representation throughout the litigation process has created tremendous uncertainty and raised serious concerns abouc the fairness and reliability of capital sentencing in many jurisdictions-The problems involved in providing adequate counsel to capital defendants and death row prisoners are the primary reasons why the American Bar Association has recommended that a nationwide moratorium on capital punishment be implemented.

The Crisis in Alabama

There are now 185 people under sentence of death in Alabama. The size of Alabama's death row has doubled in the last ten years. In 1989, there were 90 people under sentence of death, in Alabama. Alabama now has the third largest death row per capita in the United States and the number of death sentenced prisoners is growing at a pace that greatly exceeds other death penalty jurisdictions. In 19981999, the last year for which data is currently available, Alabama sentenced more people to death per capita than any other state in the country. (See Appendix A) EJI's records indicate that there are currently over 300 people awaiting capital murder trials across the state of Alabama. This is an enormously high number of pending capital prosecutions for a state with a population of only 4.5 million people. While lawyers are appointed to handle trials and direct appeals in Alabama death penalty cases, until recently, compensation to appointed lawyers in capital cases was capped at $1000 per case for an attorney's out of couxt time. Most of the people currently under sentence of death in Alabama were defended by attorneys whose compensation was severely restricted. The result is that many poor people were convicted of capital crimes in trials that lasted less than 2 days. Many death row prisoners were defended by attorneys who have subsequently been disbarred or suspended from the practice of law due to serious failures in adequately protecting the legal rights of clients.

Alabama is one of the few jurisdictions in the country that has no state funded mechanism for providing lawyers to death row prisoners once a conviction and death sentence is affirmed by state courts on direct appeal.2 If a death row prisoner seeks review of his conviction and sentence on direct appeal in the United States Supreme Court, a volunteer lawyer must be found. If state collateral appeals are to be filed under Rule 32 of the Alabama Rules of Criminal Procedure, volunteer counsel must also be found.

The increasing number of death row prisoners needing counsel for postconviction appeals has greatly exceeded the supply of volunteer attorneys willing to take on these difficult cases. Consequently, there are many death row prisoners who are currently without legal representation and who have been unable to file appeals

2 In the other states of the Eleventh Circuit there are state funded services to assist death row prisoners in the timley filing of state and federal collateral challenges to their convictions and sentences. The Georgia Appellate Practice and Educational Resource Center received nearly $1 million dollars in its 1999 appropriation from the Georgia legislature. Supreme Court of Georgia, 1998 Annual Report on the Work of the Georgia Courts, Judicial Branch in Review, Stare Appropriations for the Judicial Branch; Fiscal Years 1997, 1998 and 1999-Florida's Office of the Capital Collateral Representative exclusively represents death-sentenced inmates and received over $8,000,000 in its 1999 legislative appropriation. Mary Smith Judd, "Changes continue in death sentence appeals arena," The Florida Bar News, June 15, 1998.

under Rule 32 of the Alabama Rules of Criminal Procedure or under 28 U.S.C. § 2254.

While there is language that permits a trial judge to appoint counsel after a Rule 32 petition has been filed, Ala. R. Crim. Pro. 32.7(c), state law currently limits compensation to the appointed counsel to $1,000 per case.3 The ridiculously low level of compensation makes involvement by counsel in these cases effectively pro bono work. Moreover, since hundreds of hours of work are required before a petition is filed, there must be an assignment of counsel months before a petition is filed and much time-consuming and costly work undertaken.5 Death row prisoners can not safely initiate litigation pro se with any protection against adverse rulings or summary dismissals.

4

In some jurisdictions, the state Supreme Court assumes responsibility for recruiting and assigning counsel to death row prisoners after the direct appeal is complete. See e.g., Cal. Gov. Code § 68662 (2000) (“The Supreme Court of shall offer to appoint counsel to represent all state prisoners subject to a capital sentence for purposes of state postconvietion proceedings. . ."); Miss. Code Ann. § 99-39-23(9) (2000).

In many jurisdictions, either a state-wide public defender system ensures that indigent persons receive access to counsel or state-funded agencies have been created to provide legal representation to death row prisoners for state and federal, collateral review procedures. See, e.g., Fla. Stat. § 27.702 (2000); 2000 Miss. Laws Ch. 569 (H.B. 1228); Tenn. Code. Ann. §40-30-301-309 (1999); N.C. Gen. Stat. Ann. § 7A486-3 (2000); Cal. Gov. Code § 68661 (2000); Ill. Stat. ch. 725 §5,122-4 (2000); Okla. Stat. tit-22, § 1089 (2000).

Filing postconviction pecid.ons pro se is not a viable option for death row prisoners who do not have counsel. Alabama courts have interpreted its procedural rules to require the dismissal of claims that lack factual specificity. The Alabama Rules of Criminal Procedure provide that petitioners "shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Ala. Crim. R. Pro. 32.3.

Rule 32.6(b), requires that Rule 32 petitioners plead each claim by fully disclosing the factual basis for each claim. Claims not meeting this burden of pleading are due to be dismissed. Most claims in petitions filed pro se by indigent death row prisoners necessarily will be dismissed. Without the ability to investigate claims personally or pay for someone else to conduct an investigation, it is impossible for indigent prisoners in a maximum security prison to develop any facts to provide the required specificity needed to avoid summary dismissal for most constitutional claims.6

The crises surrounding counsel for indigent death row prisoners in Alabama is likely to get worse. There are forty-two (42) death row prisoners who currently need counsel. Many of these indigent prisoners have had their convictions and death sentences recently affirmed by the Alabama Supreme Court and are months away from deadlines which could bar their appeals. There are dozens of other cases which could soon be affirmed where death row prisoners will need counsel.

3 This compensation was increased from $600 to $1,000 by the Alabama legislature, elective ,June 10, 1999. Ala. Code 415-12-23 (1975), as amended by Act 99-427 (1999).

4 A survey of volunteer lawyers who took on death penalty appeals found the median amount of work on each appeal was 665 hours. Howard The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W.Va-L.Rev. 863, 893 (Spring 1996). 5 Preparation and filing of a Rule 32 petition requires a complete reading of the trial transcript, appellate briefs and pleadings, an investigation into factual based claims such as innocence, jury misconduct, discovery violations, ineffective assistance of counsel anal thorough preparation for a host of complex procedural issues unique to collateral litigation relating to exhaustion, retroactiviry, procedural default, res judicata, the Anti-Terrorism and Effecrive Death Penalty Act (AFDPA) and federal habeas corpus jurisprudence. The Mississippi Supreme Court has recently recognized that "[applications for post-conviction relief often raise issues which require investigation, analysis and presentation of facts outside the appellate record. The inmate is confined, unable to investigate, and often without training in the law or the mental ability to comprehend the requirements of the [state law]. The inmate is in effect denied meaningful access to the courts by lack of funds for this state-provided remedy." Jackson v. State, 732 So. 2d 187, 190 (Miss. 1999).

6 The Attorney General's Office in Alabama will seek summary dismissal of claims even though death row prisoners are unrepresented, seeking counsel and filed petitions pro se. For example, in Donald Dallas' case, a pro se petition was filed. The trial judge then granted the State's motion to dismiss most of the claims in the petition eliminating the possibility of relief. Only months after most claims had been decided adversely to Mr. Dallas was counsel appointed to represent him. Donald Dallas' case is still pending in the Montgomery County Circuit Court. See Dallas v. State, Case No. CC-94-2142.

7 See e.g., Exparte Richard Flowers,-So. 2d—, CR-97–1254 (Ala. Crlin. App. Oct. 27, 2000), cent. deiced, So. 2d-, No. 1000577 (Ala. Mar. 30, 2001); Ex parte Roy Perkins, -So. 2d—, No. (Ala. Mar. 30, 2001); Ex parte Trace Duncan, So. 2d-, No. 1990652 (Ala. Mar. 30, 2001); Ex Continued

There is an immediate need to have a system established for providing adequately trained and compensated counsel to death row prisoners for postconviction review. Without such a system, unreliability and unfairness will continue to characterize the administration of capital punishment and the risk of executing the innocent will be unacceptably high.

Recent Congressional Enactments Have Exacerbated the Problem

The problem of providing lawyers to death row prisoners for state and federal post-conviction appeals has been acute for many years. The problem has been worsened by recent legal developments that have shortened the period of time by which collateral appeals should be filed. Under the Anti-terrorism and Effective Death Penalty Act ("AFDPA "), there is a one year statute of limitations for prisoners seeking habeas corpus relief in federal court 28 U.S.C. 2244(d). Under the AEDPA, the limitations period begins to run at the conclusion of direct review. 28 U.S.C. 2244(d)(1)(A). While the time during which a Rule 32 petition is pending does not count toward the federal statute of limitation period, 28 U.S.C. 2244(d)(2), a death row prisoner must file his Rule 32 petition within one year, to preserve an opportunity to appeal his conviction, and sentence in federal court Thus, although the statute of limitations under Rule 32 is two years, Ala. R-Crim. Proc. 32.2(c), ALDPA has effectively shortened the statute of limitations period to one year.

In addition to death row prisoners having one-half of the time previously available to file a Rule 32 petition, the number of death row prisoners needing lawyers has dramatically increased since the passage of AEDPA. Because neither state courts nor the state legislature has provided a mechanism for appointing counsel to indigent death row prisoners, condemned inmates must rely on volunteer lawyers to come forward to file their appeals. The reduction of time during which lawyers can be recruited from two years to one year has made the dependence on volunteer counsel inadequate, the dramatic increase in the number of prisoners needing lawyers has made finding sufficient number of volunteer counsel impossible.

Without greater assurance that indigent death row prisoners will be provided legal representation, an unacceptable risk is created that innocent people will be executed.

parte Andrew Apicella,-So. 2d-, No. 1992273 (Ala. Mar. 30, 2001); Ex parte Joseph Smith,So. 2d-, CR-98-0206 (Ala. Crim. App. May 26, 2000), cert. denied,-So. 2d-, No. 1992220 (Ala. Mar. 16, 2001); Ex parte Jarrod Taylor,-So. 2d-, No. 1991307 (Ala. Mar. 9, 2001); Ex parte LaSarguel Gamble,-So. 2d-, CR-97-0698 (Ala. Crim. App. June 30, 2000), cert. denied,-So. 2d-, No. 1992229 (Ala. Mar. 2, 2001); Ex parte Geoffrey West,-So. 2d-, CR-98-1956 (Ala. Crim. App. Aug. 25, 2000), cert. denied,-So. 2d-, No. 1000231(Al.a. Feb. 23, 2001); Ex parte Marcus Williams, So. 2d—, No. 1990902 (Ala. Jan. 12, 2001); F -x parte Eddie Powell, So. 2dNo. 1990546 (Ala. Jan, 12, 2001); Ex parte Nicholas Acklin,-So. 2d--, CR-98-0330 (Ala. Crim. .App. Apr. 28, 2000), cert. denied,-So. 2d-, No. 1991908 (Ala. Jan. 12, 2001); Ex harte Joe an les, -So. 2d-, CR-98-2417 (Ala. Crim. App. Apr. 28, 2000), cert, denied,- So. 2d—, No. 1991959 (Ala. Dec. 15, 2000); Ex parte'Ion.yBarhsdale,-So. 2d-, CR-96-07 54 (Ala. Crim. App. Mar. 31, 2000), cert. denied,- So. 2d-, No- 1992230 (Ala. Dec. 15, 2000); Ex parte Anthony Tyson,-So. 2d-, CIZ-98-0267 (Ala. Crim. App. Feb. 4, 2000), cert. denied,,-So. 2d-, No. 1991309 (Ala. Nov. 17, 2000); Ex parte John Hardy,-So. 2d- No. 1981646 (Ala. Nov, 3, 2000); Ex parte Jeremiah Jackson,-So. 2d-, CR-97-0998 (Ala. Crim. App. Mar. 31, 2000), cert. denied, So. 2d-, No. 1991742 (Ala. Nov. 3, 2000); Ex parte Willie Burgess,-So. 2d-, No. 1980803 (Ala. Aug. 25, 2000); Ex parte Casey McWhorter,-So. 2d-, No. 1990427 (Ala. Aug. 11, 2000); Ex parte Robert Melsod, 775 So. 2d-904 (Ala. Aug. 4, 2400); Ex parte Frederick WoodT1, So. 2d-, No. 1990867 (Ala. Jan. 12, 2001); Ex parte Larry Whitehead, 777 So. 2d854 (Ala. Jun. 30, 2000); Ex parte Artez Hammonds, So. 2d-, No. 1.990258 (Ala. juri. 23, 2000); Ex parte Robert Ingram, So. 2d-, No. 1990282 (Ala. Jun-23, 2000); Ex parte Joseph Wilson, 777 So. 2d—935 (Ala.—)un. 23, 2000); Ex parte Kenneth Loggins, 771 So. 2d-1093 (Ala. Jun. 2, 2000); Ex parte Derrick Mason, 768 So. 2d-1008 (Ma. Apr. 7, 2000); Ex parte Marcus Presley, 770 So. 2d-143 (Ala- Apr. 7, 2000), and Ex parte Marcus Presley, 770 So. 2d 114 (Ala. Mar. 31, 2000); Ex parte Wayne Travie, 776 So. 2d-874 (Ala. Mar. 31, 2000); Ex parte David Freeman, 776 So. 2d-203 (Ala. Mar. 10, 2000); Ex parte Matthew Hyde, 778 So. 2d237 (Ala. Mar. 10, 2000); Ex arte Michael Samra, 771 So. 2d-1122 (Ala. Mar. 3, 2000); Ex parte Lines Borden, 769 So. 2d-950 (Ala. Feb. 4, 2000); Ex parte Demetrius Frazier, 758 So. 2d611(Ala. Dec. 30,1999); Ex parte Ronald Smith, 756 So. 2d-957 (Ala. Jan 21, 2000).

8 Increases in the total number of people on death row, many of whom rely on pro bono legal assistance, has drained the available number of lawyers to assist Alabama prisoners. Less than 20 percent of the death row prisoners in Alabama, who have counsel, are represented by law firms or attorneys who are not members of the state bar. Moreover, there has been a general decrease in pro bono assistance among large law firms. In 1992 lawyers at the 100 highestgrossing law firms volunteered an average of 56 hours a year, in 1999 the lawyers at those same fines averaged 36 hours a year. Winter, "Legal Firms Cutting Back on Free Services for Poor," New York Times, Aug-17, 2000 at Al. See also, "Lack of Lawyers Hinders Appeals in Capital Cases," New York Times, July 5, 2001.

CONCLUSION

The Innocence Protection Act is desperately needed. Postconviction DNA testing and improving legal representation for death row prisoners is absolutely critical if we are to prevent innocent people from being executed and if we are to provide equal justice for all.

I strongly urge this Committee to recommend passage of this important legislation.

BRYAN STEVENSON, Director Equal Justice Initiative of Alabama

APPENDIX A

Death Sentences Imposed in 1998 and 1999 Combined (Ranking: Death Sentences Per Capita 1998-1999 Combined)