Some opponents of the death penalty seek to portray these stories as "par for the course." This view ignores the hundreds of capital cases in which no flaw was found in the quality of the legal representation. It also ignores the hundreds of capital cases in which defendants were either acquitted, or sentenced to a penalty less than death, due, at least in part, to the vigorous efforts of their able attorneys.

Far more often than not, a capital defendant is represented by multiple outstanding lawyers. Some of this nation's finest legal talent is attracted to the challenging, high stakes arena of capital case defense. As several of today's witnesses will testify, the prosecution team in a capital case often finds itself overwhelmed by defense teams funded by a combination of public and private sources.

More importantly, what opponents of the death penalty would have us ignore is that those defendants represented by sleeping or intoxicated attorneys-or attorneys who fall below the level of acceptable lawyering for whatever reason-routinely have their convictions overturned, either on appeal, or on habeas corpus review. Make no mistake it is completely unacceptable for any criminal defendant to be represented by a sleeping or intoxicated attorney. But as unfortunate as these rare cases are, they do demonstrate unequivocally that the appellate system, and our system for habeas review, remain robust and entirely capable of identifying and rectifying instances of deficient legal representation.

Currently, each of the states that chooses to implement the death penalty has different qualifications for attorneys assigned to represent defendants in capital cases. This makes sense, given the differing number of criminal lawyers in various jurisdictions, the differing frequency that the death penalty is sought from state to state, and the differing systems that the states have established for assigning lawyers to indigent defendants.

Obviously, a rural jurisdiction, with few lawyers, in a state that requests the death penalty relatively infrequently, will have different requirements for capital case attorneys than those of an urban jurisdiction, with many criminal lawyers, in a state that seeks the death penalty more often.

Whatever method a state uses to appoint capital case attorneys, the standard for their performance is exactly the same from state to state. An attorney must provide effective assistance of counsel as defined by the United States Supreme Court.

The legislation that is the subject of this hearing would seek to paper over the differences between the states and to create a one-size-fits-all national standard for capital case attorneys. Even if I believed this was a good idea, and I do not, I cannot see how it would address the supposed problems in capital case representation that are trumpeted by the opponents of the death penalty.

No legislative scheme we enact will be able to predict, prior to trial, whether a particular lawyer will fall asleep during trial, or whether he will develop a problem with alcoholism. That is why our current system is designed the way that it isto evaluate after the trial whether a lawyer has provided competent representation to his or her client.

Capital representation standards already exist in nearly every state that has implemented the death penalty. There has been a recent movement in many states to make such standards more exacting. Yet incompetent attorneys still slip through the cracks. Regardless of their good intentions, capital representation standards simply cannot ensure that every defendant will receive competent representation. That assurance will continue to be provided, as it is now, by the appellate process, and by the system for habeas corpus review.

My concern is that the only group likely to benefit from the legislation we are discussing today are those individuals intent on eliminating the death penalty altogether. Capital representation standards could easily be written so that many isolated jurisdictions would have no attorneys judged capable of handling death penalty cases.

A system already renowned for its glacial pace would experience further massive delays as the few death-penalty-eligible attorneys are rationed out among competing jurisdictions.

As I said at the beginning of this statement, the death penalty is a subject that engenders great passion. Although a substantial majority of the American public remains solidly in favor of the death penalty, there is a vocal minority that is passionately opposed to the imposition of the death penalty under any circumstances.

I fear that the adoption of national capital representation standards, although undoubtedly well-intentioned, would provide a mechanism for those who would thwart the will of the majority of American citizens, and achieve what the minority failed to achieve at the ballot box-the complete evisceration of the death penalty.

While it is true that a small proportion of capital defendants do not currently receive effective assistance of counsel, it is also true that in these rare cases, the convictions do not withstand appellate and collateral review. If national capital rep

resentation standards are established, the situation will not be changed-there will still be a small proportion of capital defendants who do not receive effective assistance of counsel. What will be changed, is that opponents of the death penalty will be handed yet another procedural tool with which to manufacture delay.

Mr. Chairman, I share your concern that the innocent must be protected. It is intolerable for even one innocent person to reside on death row, much less, God forbid, that an innocent person ever be executed.

We have reached substantial agreement on some important reforms that would go a long way towards protecting the innocent. We agree that potentially exculpatory DNA testing must be provided to inmates on death row who did not have access to such testing at the time of their trial. We agree that the nation's forensic laboratories must receive increased funding to enable them to process evidence more expeditiously, leading to exoneration for some defendants and, in some cases, to the arrest of the actual perpetrator. We agree that increased funds must be provided for the treatment and prevention of drug abuse, to break the cycle of addiction which underlies many of these violent crimes. And with respect to capital representation standards, I have no problem with the federal government providing the states with financial assistance, available on a voluntary basis, to ensure competent counsel at trial.

With all due respect, Mr. Chairman, I cannot support the provisions that are the subject of today's hearing. The provisions are harmful to the efficient administration of justice; they are harmful to the rights of the states to order their own affairs; and above all, they are harmful to the victims, and their families, who are entitled to a fair and speedy justice being meted out to the perpetrators of these heinous crimes.

Mr. Chairman, I want again to acknowledge your outstanding leadership on this issue. We are in complete agreement as to the goal for which we must be striving: that our criminal justice system operate fairly and efficiently, and that no innocent person be wrongfully convicted. I hope that we will be able to continue to work together on this important issue.

Chairman LEAHY. Well, I thank the Senator from Utah. He and I have worked closely together for over 20 years on many different issues and I am sure we will continue to work together on this one. I also thank him for bringing members of his family here today.

We are going to recess for about 10 minutes while Senator Hatch and I go to vote, and then we will be back and resume the hearing. [The committee stood in recess from 10:49 a.m. to 11:15 a.m.] Chairman LEAHY. Senator Hatch is on his way back. I just checked, and we will start. I see Senator Sessions, of Alabama, is here, and we will begin with the Attorney General of Alabama, William Pryor.

We will give 5 minutes to each of the witnesses. They will be able to put their full statements in the record. When Senators get the record back, they understand that you will be able to expand it. You will all have a chance to see your transcript. If you find that there is something you want to add or detract from your statement, feel free.

Attorney General Pryor?

STATEMENT OF HON. WILLIAM H. PRYOR, JR., ATTORNEY GENERAL, STATE OF ALABAMA, MONTGOMERY, ALABAMA Mr. PRYOR. Thank you, Mr. Chairman and members of the committee, Senator Sessions. Thank you for inviting me to comment on the problems posed by S. 486, which has been referred to as the Innocence Protection Act of 2001.

As the Attorney General of Alabama, my office defends the death sentences in capital murder cases and all direct appeals, State post-conviction proceedings, and Federal habeas corpus proceedings. My office also occasionally prosecutes capital murder charges at the trial level.

In my 4 1/2 years as Attorney General, 10 capital murders have been executed, after pursuing an average of 16 years and 5 months of appeals and other post-conviction proceedings. Our process is much longer and involves more levels of review than the relatively speedy execution of Timothy McVeigh.

My concerns about the legislation before you are that it would lengthen and complicate an already byzantine system, create perverse incentives for the criminal justice systems of each State, and harm the real innocents in this process. The real innocents, of course, are the families of victims of capital murderers and the future victims of those murderers who either escape justice or are not deterred by a system that fails to punish swiftly and adequately the most heinous crimes in our society.

If your concern is to protect the innocent from being executed, then you need not worry. It is not occurring and it is highly unlikely to occur. As Professor Paul Cassell of the University of Utah School of Law has stated, "The death penalty system in America is the most accurate criminal sanction in the world."

Consider first how this legislation would cause unreasonable delays and complications. Section 201 would shift the appointment of defense lawyers in capital cases from the independent judges of the State to a so-called independent appointing authority. The evaluation of fitness to practice as defense counsel in capital cases would shift from the State bar and courts to the independent appointing authority.

I am concerned that this authority might be captured and staffed by attorneys who favor the abolition of capital punishment and therefore are not independent. It is unreasonable and contrary to basic constitutional principles of federalism to expect that an independent authority would be more objective, balanced and diligent than the judges of the State courts who now appoint counsel in capital cases. Judges are independent. For that matter, so are prosecutors whose ethical duty, in contrast with the defense attorneys, is to pursue truth and justice.

A group of anti-death penalty lawyers would have many incentives to set the performance standards and qualifications of attorneys on their roster unreasonably high so that few lawyers would be placed on the roster. This perverse incentive would then mean that indigents who face capital murder charges would not have competent counsel for trial. The system created by this legislation could become a self-fulfilling prophecy where capital murder trials come to an abrupt end because of an alleged lack of competent counsel.

Moreover, this legislation could empower attorneys who favor the abolition of capital punishment to inflict real harm on the corrections system of each State. Under the guise of serving as the independent appointing authority, these attorneys could ensure that each State that administers capital punishment fails to meet the standards set by the attorneys, and as a result the State loses Federal funds for prisons.

States that desire to forgo the burdens of this legislation would also have to forgo the benefits of Federal funds for the prisons of that State, which many States would do, to the detriment of inmates, the vast majority of whom are not on death row, and vic

tims of criminals who could be released from prison. In my State, the amount of Federal funds at stake this year is over $1.3 million. Finally, this legislation would create incentives for States to abolish post-conviction proceedings for capital murderers. Currently, under the Anti-Terrorism and Effective Death Penalty Act of 1996, States with post-conviction proceedings receive deference for the determinations made by their courts in respect of fundamental principles of federalism.

By removing the benefits of AEDPA, this legislation would offer the States no incentive to maintain post-conviction proceedings, which are not required by the U.S. Constitution. With the elimination of these proceedings after a trial and direct appeal, an inmate on death row would have access only to Federal courts and habeas corpus proceedings as a process for review of his death sentence. This disincentive for access to State post-conviction proceedings runs directly contrary to the entire purpose and rationale for AEDPA.

In 1996, Congress wisely concluded that the Federal process for review of death sentences should accord deference to State courts and be streamlined to make capital punishment a more effective deterrent of heinous crimes and a better system of justice for the innocent families of victims of capital murder.

I have also made available to you today for filing with my statement my written remarks that I gave last year to the Board of Bar Commissioners of the Alabama State Bar to defend our system of capital punishment against charges of unfairness and the alleged risk of executing an innocent person.

I want to thank you again for this opportunity on this most important issue. I look forward to answering any questions you have about the matter.

[The prepared statement and an attachment of Mr. Pryor follow:]

STATEMENT OF HON. BILL PRYOR, ATTORNEY GENERAL OF THE STATE OF ALABAMA Mr. Chairman and Members of the Committee:

Thank you for inviting me to comment on the problems posed by S. 486, which has been referred to as the Innocence Protection Act of 2001. As the Attorney General of Alabama, my office defends the death sentences in capital murder cases in all direct appeals, state post-conviction proceedings, and federal habeas corpus proceedings. My office also occasionally prosecutes capital murder charges at the trial level. In my four and a half years as attorney general, ten capital murderers have been executed after pursuing an average of 16 years and 5 months of appeals and other post-conviction proceedings. Our process is much longer and involves more levels of review than the relatively speedy execution of Timothy McVeigh.

My concerns about the legislation before you are that it would lengthen and complicate an already Byzantine system, create perverse incentives for the criminal justice systems of each state, and harm the real innocents in this process. The real innocents, of course, are the families of victims of capital murderers and the future victims of those murderers who either escape justice or are not deterred by a system that fails to punish swiftly and adequately the most heinous crimes in our society. If your concern is to protect the innocent from being executed, then you need not worry; it is not occurring and is highly unlikely to occur. As Professor Paul Cassell of the University of Utah School of Law has stated, "The death penalty system in America is the most accurate criminal sanction in the world." Marcia Coyle, 66% Error Rate Found In Death Case Study: Author Calls Serious Problems "Epidemic," Nat' L.J., June 19, 2000, at A1 (col.2).

Consider first how this legislation would cause unreasonable delays and complications. Section 201 would shift the appointment of defense lawyers in capital cases from the independent judges of the state to a so-called independent appointing authority. The evaluation of fitness to practice as defense counsel in capital cases

would shift from the State Bar and courts to the independent appointing authority. I am concerned that this authority might be captured and staffed by attorneys who favor the abolition of capital punishment and, therefore, are not independent.

It is unreasonable and contrary to basic constitutional principles of federalism to expect that an independent authority would be more objective, balanced, and diligent than the judges of the state courts who now appoint counsel in capital cases. Judges are independent. For that matter, so are prosecutors whose ethical duty, in contrast with defense attorneys, is to pursue the truth and justice. A group of antideath penalty lawyers would have many incentives to set the performance standards and qualifications of attorneys on their roster unreasonably high so that few lawyers would be placed on their roster. This perverse incentive would then mean that indigents who face capital murder charges would not have competent counsel for trial. The system created by this legislation could become a self-fulfilling prophecy where capital murder trials come to an abrupt end because of an alleged lack of competent counsel.

Moreover, this legislation could empower attorneys who favor the abolition of capital punishment to inflict real harm on the corrections system of each state. Under the guise of serving as the independent appointing authority, these attorneys could ensure that each state that administers capital punishment fails to meet the standards set by the attorneys and, as a result, the state loses federal funds for its prisons. States that desire to forego the burdens of this legislation would also have to forego the benefits of federal funds for the prisons of that state, which many states would do to the detriment of inmates, the vast majority of whom are not on death row, and victims of criminals who could be released from prison. In my state, the amount of federal funds at stake this year is $1,389,635.

Finally, this legislation would create incentives for states to abolish post-conviction proceedings for capital murderers. Currently, under the Anti-Terrorism and Effective Death Penalty Act of 1996, states with post-conviction proceedings receive deference for the determinations made by their courts in respect of fundamental principles of federalism. By removing the benefits of AEDPA, this legislation would offer the states no incentive to maintain post-conviction proceedings, which are not required by the U.S. Constitution. With the elimination of these proceedings, after a trial and direct appeal, an inmate on death row would have access only to federal courts in habeas corpus proceedings as a process for review of his death sentence. This disincentive for access to state post-conviction proceedings runs directly contrary to the entire purpose and rationale for AEDPA. In 1996, Congress wisely concluded that the federal process for review of death sentences should accord deference to state courts and be streamlined to make capital punishment a more effective deterrent of heinous crimes and a better system of justice for the innocent families of victims of capital murder.

The entire rationale for the competency requirements in this legislation is flawed. After many years of review, capital murderers are executed because they are guilty, not because their counsel is incompetent. Take, for example, in my state, the case of Phillip Wayne Tomlin, who last year was tried by prosecutors in my office, convicted, and sentenced to death for the fourth time for the murders of 19 year old Ricky Brune and 15 year old Cheryl Moore on January 1, 1977. None of the reversals of his first three convictions was related to competency of defense counsel. He received a death sentence for the fourth time even though he was represented by Stephen Bright, who is testifying today because of his expertise as a defense lawyer and opponent of capital punishment.

I will also make available to you written remarks that I gave last year to the Board of Bar Commissioners of the Alabama State Bar to defend our system of capital punishment against charges of unfairness and the alleged risk of executing an innocent person.

Thank you again for this opportunity and I look forward to answering any questions you may have about this matter.

ADDITIONAL STATEMENT OF HON. BILL PRYOR, ATTORNEY GENERAL OF THE STATE OF ALABAMA

President Rumore, members of the Executive Committee, and Commissioners, I appreciate this opportunity to speak to you today regarding a proposed death penalty moratorium in this State. The death penalty has the support of a majority of Americans and a large majority of Alabamians. Depending on which poll you view,