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and it totally falls apart—especially in a democracy—if people lose confidence in it.
I may disagree with some of my friends on this committee on some issues, but none of us disagrees with the principle that somebody who is on trial for his life deserves a fair trial and deserves a competent defense attorney. We are talking about the ultimate penalty that can be imposed. I appreciated Senator Specter's comment on Sunday that competent counsel is fundamental.
Let's look at what has happened while the Innocence Protection Act has been pending in the Congress. In the last 6 months, more than a dozen people have been cleared of the crimes that sent them to prison. In 6 cases they were convicted and sent to death row, and then we find we made a mistake.
Let's go with this: Jerry Frank Townsend was sentenced to seven concurrent life sentences in Florida, in 1980—seven concurrent death sentences. And then we found, "Sorry, we made a mistake." You are free to go.
Joaquin Martinez, sentenced to death in Florida, in 1997—sentenced to death. Fortunately, they found out they had the wrong person before he was actually executed.
Gary Wayne Drinkard was sentenced to death in Alabama, in 1995. I understand Mr. Drinkard is here today with his attorney. The headline in the Associated Press says it all: “He Fought Fear of Death Everyday.” He was on death row, knowing he was innocent, wondering what it would be like to be executed as an innocent man.
Of course, in every one of these cases, while they had the wrong person on death row, that meant whoever committed the crime was out free and able to commit the same crime again.
Jeff Pierce was sentenced to 65 years in Oklahoma, in 1986. I would ask anybody at this hearing, what would you think if you heard the cell door close and knew you had been sentenced for 65 years for something you didn't do. Then they find out, well, a chemist made a mistake and they had the wrong person.
Danny Brown was sentenced to life in Ohio, in 1982. Nineteen years you can never give back to somebody in their life; 19 years behind bars, and they had the wrong person.
Richard Danziger was sentenced to 99 years in Texas, in 1990. Now, he was finally cleared, but he has an uncertain future, as it says here. Why does he have an uncertain future? He was beaten so badly while in prison that he now has brain damage. He was in prison for a crime he did not commit.
Kenneth Waters was sentenced to life in Massachusetts. I think the headline says it all from the Boston Globe: “After 18 years in prison, it is great to be free,' ex-inmate says.” I can well imagine.
In 1984, Earl Washington was sentenced to death in Virginia. He came within days of execution, and then they did a DNA test and they found they had the wrong person. Mr. Washington is here with us today and I appreciate him coming here to join us.
David Pope was sentenced to 45 years Texas, in 1986. He served 15 years and then they did a DNA test, and again, sorry, wrong person. Again, I would point out not only the injustice of serving that time behind bars, but it also means that the guilty person is free to commit more crimes.
Peter Limone was sentenced to death in Massachusetts, in 1968. He spent 33 years in prison after his conviction, and they say again, wrong person, we will let you go. His wife had eked out à living by sewing so the family could visit him every week in prison, convinced of his innocence.
Christopher Ochoa was sentenced to life in Texas. It turns out he was falsely accused and he was freed from a life term.
Michael Graham and Albert Burrell were sentenced to death in Louisiana, in 1987. Mr. Graham is here as a witness today; death row inmates exonerated, having served time facing death, expecting to be executed. Wrong person, and they were finally let out.
Gerald Harris was sentenced to 9 to 18 years in New York, in 1992. Guess what? The headline says it all in Newsday: “He Was the Wrong Man.” He served the time, but the wrong man; the right man was out free.
Frank Lee Smith was sentenced to death in Florida, in 1986. It turns out the DNA tests cleared him.
Now, we didn't go back through a long, long history to get these. These people were all released in the last 6 months. What should we learn from these cases? Well, some have argued these cases in which innocent people were cleared after years and sometimes decades in prison show that the system is working. Working? Something is tragically flawed with the system if they can serve all that time.
I have only one thing to say. Listen to Michael Graham testify today about 14 years on death row, knowing that they had the wrong person. Listen to what he has to say. Put yourself in the place of sitting there, waiting to be executed for a crime that you didn't commit. Then ask yourself whether finally being released is a triumph of the judicial system or whether there was a failure that put you there in the first place.
The Innocence Protection Act proposed some basic, commonsense reforms to our criminal justice system to reduce the risk of mistaken execution. We have listened to a lot of good advice. We have made refinements to the bill since the last Congress. Again and again, experts in the field have told us that ensuring competent counsel is the single most important thing we can do to get to the truth and protect innocent people. I will tell you what we have done.
The bill would establish a national commission which would consist of distinguished American legal experts who have experienced the criminal justice system firsthand-prosecutors, defense lawyers and judges. They would formulate reasonable minimum standards for ensuring competent counsel at each stage of a capital case, something that the Conference of Chief Justices has been calling for for years.
The IPA uses a “carrot and stick” approach to ensure that counsel standards are met. The carrot is more than $50 million in grants to help put the new standards in effect. The stick is that States that fail to meet the standards would have their death sentences given less deference and subjected to more rigorous Federal court review. This is because we would not have the confidence that comes from knowing that competent counsel represented the defendant. These states would forfeit some of their prison grant funding over time.
Now, I want to stress the importance of these enforcement mechanisms. Without them, standards developed under the IPA would merely gather dust on a shelf, like a lot of the other voluntary counsel standards that we have seen over the years.
Critics of the bill raise two arguments against its mandate for competent counsel in death penalty cases. Let me briefly discuss them.
The first argument I have heard is that there is no real problem because the States are already providing decent defense counsel in capital cases. The facts show otherwise. The problem is real, it is urgent and it is well-documented. It has been more than a decade since the U.S. Judicial Conference and the ABA issued reports on the widespread problem of incompetent and underfunded capital defense counsel. It has been 8 years since this committee held a hearing on innocence and the death penalty, in which witness after witness spoke to the same issue.
In March of 2000, the Justice Department released a report on indigent defense services across the country and concluded that “Indigent defense in the United States today is in a chronic state of crisis, resulting in legal representation of such low quality to amount to no representation at all, delays, overturned convictions, and convictions of the innocent.”
In June of 2000, Professor Jim Liebman and his colleagues at the Columbia Law School released the most comprehensive statistical study ever undertaken of modern American capital appeals. They found that serious errors were made in two-thirds of all capital cases. The most common problem was grossly incompetent defense lawyers.
Today, in Alabama, there are 42 prisoners on death row who have no lawyer to pursue appeals. Today, in Texas, one out of every four death row inmates was defended by a lawyer who has been disciplined, suspended or disbarred. This is not competent counsel, and it is certainly not the counsel that any Senator on this panel would expect to have if they were accused of a capital crime. Today in America, there are people awaiting execution whose lawyers slept through part of their trials. That is unjust, it is shocking, and it ought to be unacceptable in this country.
The other argument I have heard against our bill goes something like this: maybe some States could do a better job providing counsel for indigent defendants. Maybe some States do skimp on funding. Maybe this has resulted in a few innocent people being sentenced to death here and there. But that is no reason for Congress to get involved.
In fact, it is a reason for Congress to get involved. There should be zero tolerance for mistakes in death penalty cases. We have a duty to get involved to try to contain the crisis before innocent people are put to death. Congress has the duty to get involved because the crisis is national scope.
Since 1973, 96 people who were sentenced to death and were heading to death row have been exonerated-one for every seven or eight who have been executed. These 96 exonerations span 22 different States, which is a substantial majority of the States that have a death penalty.
In Illinois, the Governor, a conservative Republican, imposed a moratorium on executions because of the State's dismal record of sending innocent people to death row. But this isn't an Illinois problem or a Texas problem; it is a national problem. It calls into question the legitimacy of criminal convictions, but it also undermines public confidence in the integrity of the criminal justice system as a whole.
If mistakes occur when a life is at stake, what happens when the crimes and penalties are less severe? Witnesses and juries and judges become more skeptical about how well the police and prosecutors are doing their jobs. If they do not trust the jobs that are being done, what does that mean for our prosecutors and police? It means that it is going to be far more difficult to get convictions when they have the right person if they show sloppiness when they have the wrong person.
And let us not forget that when an innocent person is put in prison, that doesn't protect us. The person who committed the crime is out there, free to do the same thing. If you convict the wrong person, leaving the actual murderer free, what does that do?
In 1985, Rolando Cruz and Alejandro Hernandez were wrongly convicted and sentenced to death for the murder of a 10-year-old girl. DNA tests ultimately linked another man to the little girl's death, clearing them. In the meantime, because the wrong men were convicted and the right person was still out there, the actual criminal committed another murder. This is a national problem. It is not a question whether Congress should act, but when.
Last year, we passed the Paul Coverdell National Forensic Sciences Improvement Act. I was proud to cosponsor this bipartisan legislation which will improve the quality and credibility of our Nation's crime labs. We are still working to fund it. When the Senate took up the Paul Coverdell bill, I proposed a sense of the Congress amendment which the Senate adopted. In it, we resolved to work with the States to improve the quality of legal representation in capital cases through the establishment of counsel standards. Congress has already gone on record in recognizing what has to be done; now is the time to do it.
[The prepared statement of Senator Leahy follows:]
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF
VERMONT I want to welcome all of the witnesses and thank you for coming today. I am particularly pleased to welcome Senator Smith and Senator Collins, as well as our lead House cosponsors, Congressman Bill Delahunt and Congressman Ray LaHood. I thank them for their commitment to our legislation, the Innocence Protection Act of 2001.
We now have 19 cosponsors in the Senate. That includes three members of this committee: Senator Feingold, Senator Kennedy, and Senator Cantwell. I am grateful to each of them for their support. I also want to thank Senator Feinstein and Senator Hatch for the interest that they have shown in this issue.
I could not be more delighted with the progress that the IPA has been making in the House. There are now more than 200 House cosponsors, including Republicans and Democrats from all parts of the country, conservatives and liberals, supporters and opponents of the death penalty.
That is how it should be, because this is not a partisan issue; it is an issue of conscience and confidence in our criminal justice system. I may disagree with some of my friends on this committee on some issues, but none of us disagrees with the principle that someone on trial for his life deserves a fair trial and a competent defense lawyer. I appreciated Senator Specter's comment on Sunday that competent counsel is "fundamental.”
Let's look at what has happened while the Innocence Protection Act has been pending in the Congress. In the last six months, more than a dozen people have been cleared of the crimes that sent them to prison or, in six cases, to death row.
• Jerry Frank Townsend, sentenced to 7 concurrent life sentences in Florida in 1980 • Joaquin Martinez, sentenced to death in Florida in 1997; • Gary Drinkard, sentenced to death in Alabama in 1995; • Jeff Pierce, sentenced to 65 years in Oklahoma in 1986; • Danny Brown, sentenced to life in Ohio in 1982; • Richard Danziger, sentenced to 99 years in Texas in 1990; • Kenneth Waters, sentenced to life in Massachusetts in 1983; • Earl Washington, sentenced to death in Virginia in 1984; • David Pope, sentenced to 45 years in Texas in 1986; • Peter Limone, sentenced to death in Massachusetts in 1968; • Christopher Ochoa, sentenced to life in Texas in 1988; • Michael Graham and Albert Burrell, sentenced to death in Louisiana in 1987; • Gerald Harris, sentenced to 9–18 years in New York in 1992;
• Frank Lee Smith, sentenced to death in Florida in 1986. What should we learn from these cases:' Some have argued that these cases, in which innocent people were cleared after years and sometimes decades in prison, show that the system is “working.” To them, I have only one thing to say: Listen to :Michael Graham testify today about his 14 years on death row.
Then ask yourself whether his case represents a triumph of our judicial system. We must do better.
The Innocence Protection Act proposes some basic, common-sense reforms to our criminal justice system. The goal of our bill is simple, but profoundly important: To reduce the risk of mistaken executions.
We have listened to a lot of od advice and made refinements to the bill since the last Congress. Again and again, the experts in the field have told us that ensuring competent counsel is the single most important thing we can do to get at the truth and protect innocent lives. So let me briefly describe our proposals regarding counsel.
The bill would establish a national commission, which would consist of distinguished American legal experts who have experienced the criminal justice system first hand-prosecutors, defense lawyers, and judges. The commission would formulate reasonable minimum standards for ensuring competent counsel at each stage of a capital case—something that the Conference of Chief.Justices has been calling for many years.
The IPA uses a “carrot and stick” approach to ensure that counsel standards are met. The “carrot" is more than $50 million in grants to help put the new standards into effect.
As for the "stick": States that fail to meet the standards would have their death sentences given less deference and subjected to more rigorous federal court review, because we will not have the confidence that comes from knowing that competent counsel represented the defendant. These States would also forfeit some federal prison grant funding over time.
I want to stress the importance of these enforcement mechanisms. Without them, standards developed under the IPA would merely gather dust on a shelf like the many other voluntary counsel standards developed over the last decade.
Critics of the bill have raised two arguments against its mandate for competent counsel in death penalty cases. I will address these arguments briefly.
The first argument I have heard is that there is no real problem because the states are already providing decent defense counsel in capital cases. The facts show otherwise. The problem is real, it is urgent, and it is well-documented.
It has been more than a decade since the U.S. Judicial Conference and the ABA issued reports on the widespread problem of incompetent and underfunded capital defense counsel.
It has been eight years since this committee held a hearing on “Innocence and the Death Penalty,” where witness alter witness described the same problem.
In March 2000, the Justice Department released a report on indigent defense services across the country. The report concludes that "indigent defense in the United States today is in a chronic state of crisis,” resulting in “legal representation