S 486 IS

To reduce the risk that innocent persons may be executed, and for other purposes.

March 7, 2001

Mr. LEAHY (for himself, Mr. SMITH of Oregon, Ms. COLLINS, Mr. LEVIN, Mr. FEINGOLD, Mr. JEFFORDS, Mr. KENNEDY, Mr. CHAFEE, Mr. AKAKA, Ms. MIKULSKI, Mr. DODD, Mr. LIEBERMAN, Mr. TORRICELLI, Mr. WELLSTONE, Mrs. BOXER, and Mr. CORZINE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To reduce the risk that innocent persons may be executed, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Innocence Protection Act of 2001'.

(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

Sec. 101. Findings and purposes.

Sec. 102. Post-conviction DNA testing in Federal criminal justice system.

Sec. 103. Post-conviction DNA testing in State criminal justice systems.

Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.

Sec. 105. Grants to prosecutors for DNA testing programs.

TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

Sec. 201. National Commission on Capital Representation.

Sec. 202. Capital defense incentive grants.

Sec. 203. Amendments to prison grant programs.

Sec. 204. Effect on procedural default rules.

Sec. 205. Capital defense resource grants.

TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Increased compensation in Federal cases.

Sec. 302. Compensation in State death penalty cases.

Sec. 303. Certification requirement in Federal death penalty prosecutions.

Sec. 304. Alternative of life imprisonment without possibility of release.

Sec. 305. Right to an informed jury.

Sec. 306. Annual reports.

Sec. 307. Sense of Congress regarding the execution of juvenile offenders and the mentally retarded.

TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

SEC. 101. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress makes the following findings:

(1) Over the past decade, deoxyribonucleic acid testing (referred to in this section as `DNA testing') has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.

(2) Because of its scientific precision, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant. In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value to a finder of fact.

(3) While DNA testing is increasingly commonplace in pretrial investigations today, it was not widely available in cases tried prior to 1994. Moreover, new forensic DNA testing procedures have made it possible to get results from minute samples that could not previously be tested, and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce. Consequently, in some cases convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results.

(4) Since DNA testing is often feasible on relevant biological material that is decades old, it can, in some circumstances, prove that a conviction that predated the development of DNA testing was based upon incorrect factual findings. Uniquely, DNA evidence showing innocence, produced decades after a conviction, provides a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial. DNA testing, therefore, can and has resulted in the post-conviction exoneration of innocent men and women.

(5) In more than 80 cases in the United States, DNA evidence has led to the exoneration of innocent men and women who were wrongfully convicted. This number includes at least 10 individuals sentenced to death, some of whom came within days of being executed.

(6) In more than a dozen cases, post-conviction DNA testing that has exonerated an innocent person has also enhanced public safety by providing evidence that led to the identification of the actual perpetrator.

(7) Experience has shown that it is not unduly burdensome to make DNA testing available to inmates. The cost of that testing is relatively modest and has decreased in recent years. Moreover, the number of cases in which post-conviction DNA testing is appropriate is small, and will decrease as pretrial testing becomes more common.

(8) Under current Federal and State law, it is difficult to obtain post-conviction DNA testing because of time limits on introducing newly discovered evidence. Under Federal law, motions for a new trial based on newly discovered evidence must be made within 3 years after conviction. In most States, those motions must be made not later than 2 years after

conviction, and sometimes much sooner. The result is that laws intended to prevent the use of evidence that has become less reliable over time have been used to preclude the use of DNA evidence that remains highly reliable even decades after trial.

(9) The National Commission on the Future of DNA Evidence, a Federal panel established by the Department of Justice and comprised of law enforcement, judicial, and scientific experts, has urged that post-conviction DNA testing be permitted in the relatively small number of cases in which it is appropriate, notwithstanding procedural rules that could be invoked to preclude that testing, and notwithstanding the inability of an inmate to pay for the testing.

(10) Since New York passed the Nation's first post-conviction DNA statute in 1994, only a few States have adopted post-conviction DNA testing procedures, and some of these procedures are unduly restrictive. Moreover, only a handful of States have passed legislation requiring that biological evidence be adequately preserved.

(11) In 1994, Congress passed the DNA Identification Act, which authorized the construction of the Combined DNA Index System, a national database to facilitate law enforcement exchange of DNA identification information, and authorized funding to improve the quality and availability of DNA testing for law enforcement identification purposes. In 2000, Congress passed the DNA Analysis Backlog Elimination Act and the Paul Coverdell Forensic Sciences Improvement Act, which together authorized an additional $908,000,000 over 6 years in DNA-related grants.

(12) Congress should continue to provide financial assistance to the States to increase the capacity of State and local laboratories to carry out DNA testing for law enforcement identification purposes. At the same time, Congress should insist that States which accept financial assistance make DNA testing available to both sides of the adversarial system in order to enhance the reliability and integrity of that system.

(13) In Herrera v. Collins, 506 U.S. 390 (1993), a majority of the members of the Court suggested that a persuasive showing of innocence made after trial would render the execution of an inmate unconstitutional.

(14) It shocks the conscience and offends social standards of fairness and decency to execute innocent persons or to deny inmates the opportunity to present persuasive evidence of their innocence.

(15) If biological material is not subjected to DNA testing in appropriate cases, there is a significant risk that persuasive evidence of innocence will not be detected and, accordingly, that innocent persons will be unconstitutionally executed.

(16) Given the irremediable constitutional harm that would result from the execution of an innocent person and the failure of many States to ensure that innocent persons are not sentenced to death, a Federal statute assuring the availability of DNA testing and a chance to present the results of testing in court is a congruent and proportional prophylactic measure to prevent constitutional injuries from occurring.

(b) PURPOSES- The purposes of this title are to--

(1) substantially implement the Recommendations of the National Commission on the Future of DNA Evidence in the Federal criminal justice system, by authorizing DNA testing in appropriate cases;

(2) prevent the imposition of unconstitutional punishments through the exercise of power granted by clause 1 of section 8 and clause 2 of section 9 of article I of the Constitution of the United States and section 5 of the 14th amendment to the Constitution of the United States; and

(3) ensure that wrongfully convicted persons have an opportunity to establish their innocence through DNA testing, by requiring the preservation of DNA evidence for a limited period.

SEC. 102. POST-CONVICTION DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYSTEM.

(a) IN GENERAL- Part VI of title 28, United States Code, is amended by inserting after chapter 155 the following:

`CHAPTER 156--DNA TESTING

`Sec.

`2291. DNA testing.

`2292. Preservation of evidence.

`Sec. 2291. DNA testing

`(a) APPLICATION- Notwithstanding any other provision of law, a person convicted of a Federal crime may apply to the appropriate Federal court for DNA testing to support a claim that the person did not commit--

`(1) the Federal crime of which the person was convicted; or

`(2) any other offense that a sentencing authority may have relied upon when it sentenced the person with respect to the Federal crime either to death or to an enhanced term of imprisonment as a career offender or armed career criminal.

`(b) NOTICE TO GOVERNMENT- The court shall notify the Government of an application made under subsection (a) and shall afford the Government an opportunity to respond.

`(c) PRESERVATION ORDER- The court shall order that all evidence secured in relation to the case that could be subjected to DNA testing must be preserved during the pendency of the proceeding. The court may impose appropriate sanctions, including criminal contempt, for the intentional destruction of evidence after such an order.

`(d) ORDER-

`(1) IN GENERAL- The court shall order DNA testing pursuant to an application made under subsection (a) upon a determination that--

`(A) the evidence is still in existence, and in such a condition that DNA testing may be conducted;

`(B) the evidence was never previously subjected to DNA testing, or was not subject to the type of DNA testing that is now requested and that may resolve an issue not resolved by previous testing;

`(C) the proposed DNA testing uses a scientifically valid technique; and

`(D) the proposed DNA testing has the scientific potential to produce new, noncumulative evidence material to the claim of the applicant that the applicant did not commit--

`(i) the Federal crime of which the applicant was convicted; or

`(ii) any other offense that a sentencing authority may have relied upon when it sentenced the applicant with respect to the Federal crime either to death or to an enhanced term of imprisonment as a career offender or armed career criminal.

`(2) LIMITATION- The court shall not order DNA testing under paragraph (1) if the Government proves by a preponderance of the evidence that the application for testing was made to unreasonably delay the execution of sentence or administration of justice, rather than to support a claim described in paragraph (1)(D).

`(3) TESTING PROCEDURES- If the court orders DNA testing under paragraph (1), the court shall impose reasonable conditions on such testing designed to protect the integrity of the evidence and the testing process and the reliability of the test results.

`(e) COST- The cost of DNA testing ordered under subsection (c) shall be borne by the Government or the applicant, as the court may order in the interests of justice, except that an applicant shall not be denied testing because of an inability to pay the cost of testing.

`(f) COUNSEL- The court may at any time appoint counsel for an indigent applicant under this section pursuant to section 3006A(a)(2)(B) of title 18.

`(g) POST-TESTING PROCEDURES-

`(1) INCONCLUSIVE RESULTS- If the results of DNA testing conducted under this section are inconclusive, the court may order such further testing as may be appropriate or dismiss the application.

`(2) RESULTS UNFAVORABLE TO APPLICANT- If the results of DNA testing conducted under this section inculpate the applicant, the court shall--

`(A) dismiss the application;

`(B) assess the applicant for the cost of the testing; and

`(C) make such further orders as may be appropriate.

`(3) RESULTS FAVORABLE TO APPLICANT- If the results of DNA testing conducted under this section are favorable to the applicant, the court shall order a hearing and thereafter make such further orders as may be appropriate under applicable rules and statutes regarding post-conviction proceedings, notwithstanding any provision of law that would bar such hearing or orders as untimely.

`(h) RULES OF CONSTRUCTION-

`(1) OTHER POST-CONVICTION RELIEF UNAFFECTED- Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of law.

`(2) FINALITY RULE UNAFFECTED- An application under this section shall not be considered a motion under section 2255 for purposes of determining whether it or any other motion is a second or successive motion under section 2255.

`(i) DEFINITIONS- In this section:

`(1) APPROPRIATE FEDERAL COURT- The term `appropriate Federal court' means--

`(A) the United States District Court which imposed the sentence from which the applicant seeks relief; or

`(B) in relation to a crime under the Uniform Code of Military Justice, the United States District Court having jurisdiction over the place where the court martial was convened that imposed the sentence from which the applicant seeks relief, or the United States District Court for the District of Columbia, if no United States District Court has jurisdiction over the place where the court martial was convened.

`(2) FEDERAL CRIME- The term `Federal crime' includes a crime under the Uniform Code of Military Justice.

`Sec. 2292. Preservation of evidence

`(a) IN GENERAL- Notwithstanding any other provision of law and subject to subsection (b), the Government shall preserve all evidence that was secured in relation to the investigation or prosecution of a Federal crime (as that term is defined in section 2291(i)), and that could be subjected to DNA testing, for not less than the period of time that any person remains subject to incarceration in connection with the investigation or prosecution.

`(b) EXCEPTIONS- The Government may dispose of evidence before the expiration of the period of time described in subsection (a) if--

`(1) other than subsection (a), no statute, regulation, court order, or other provision of law requires that the evidence be preserved; and

`(2)(A)(i) the Government notifies any person who remains incarcerated in connection with the investigation or prosecution and any counsel of record for such person (or, if there is no counsel of record, the public defender for the judicial district in which the conviction for such person was imposed), of the intention of the Government to dispose of the evidence and the provisions of this chapter; and

`(ii) the Government affords such person not less than 180 days after such notification to make an application under section 2291(a) for DNA testing of the evidence; or

`(B)(i) the evidence must be returned to its rightful owner, or is of such a size, bulk, or physical character as to render retention impracticable; and

`(ii) the Government takes reasonable measures to remove and preserve portions of the material evidence sufficient to permit future DNA testing.

`(c) REMEDIES FOR NONCOMPLIANCE-

`(1) GENERAL LIMITATION- Nothing in this section shall be construed to give rise to a claim for damages against the United States, or any employee of the United States, any court official or officer of the court, or any entity contracting with the United States.

`(2) CIVIL PENALTY-

`(A) IN GENERAL- Notwithstanding paragraph (1), an individual who knowingly violates a provision of this section or a regulation prescribed under this section shall be liable to the United States for a civil penalty in an amount not to exceed $1,000 for the first violation and $5,000 for each subsequent violation, except that the total amount imposed on the individual for all such violations during a calendar year may not exceed $25,000.

`(B) PROCEDURES- The provisions of section 405 of the Controlled Substances Act (21 U.S.C. 844a) (other than subsections (a) through (d) and subsection (j)) shall apply to the imposition of a civil penalty under subparagraph (A) in the same manner as such provisions apply to the imposition of a penalty under section 405.

`(C) PRIOR CONVICTION- A civil penalty may not be assessed under subparagraph (A) with respect to an act if that act previously resulted in a conviction under chapter 73 of title 18.

`(3) REGULATIONS-

`(A) IN GENERAL- The Attorney General shall promulgate regulations to implement and enforce this section.

`(B) CONTENTS- The regulations shall include the following:

`(i) Disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who knowingly or repeatedly violate a provision of this section.

`(ii) An administrative procedure through which parties can file formal complaints with the Department of Justice alleging violations of this section.'.

(b) CRIMINAL PENALTY- Chapter 73 of title 18, United States Code, is amended by inserting at the end the following:

`Sec. 1519. Destruction or altering of DNA evidence

`Whoever willfully or maliciously destroys, alters, conceals, or tampers with evidence that is required to be preserved under section 2292 of title 28, United States Code, with intent to--

`(1) impair the integrity of that evidence;

`(2) prevent that evidence from being subjected to DNA testing; or

`(3) prevent the production or use of that evidence in an official proceeding,

shall be fined under this title or imprisoned not more than 5 years, or both.'.

(c) TECHNICAL AND CONFORMING AMENDMENTS-

(1) The analysis for part VI of title 28, United States Code, is amended by inserting after the item relating to chapter 155 the following:

2291'.

(2) The table of contents for Chapter 73 of title 18, United States Code, is amended by inserting after the item relating to section 1518 the following:

`1519. Destruction or altering of DNA Evidence.'.

SEC. 103. POST-CONVICTION DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS.

(a) CERTIFICATION REGARDING POST-CONVICTION TESTING AND PRESERVATION OF DNA EVIDENCE- If any part of funds received from a grant made under a program listed in subsection (b) is to be used to develop or improve a DNA analysis capability in a forensic laboratory, or to collect, analyze, or index DNA samples for law enforcement identification purposes, the State applying for that grant must certify that it will--

(1) make post-conviction DNA testing available to any person convicted of a State crime in a manner consistent with section 2291 of title 28, United States Code, and, if the results of such testing are favorable to such person, allow such person to apply for post-conviction relief, notwithstanding any provision of law that would bar such application as untimely; and

(2) preserve all evidence that was secured in relation to the investigation or prosecution of a State crime, and that could be subjected to DNA testing, for not less than the period of time that such evidence would be required to be preserved under section 2292 of title 28, United States Code, if the evidence were related to a Federal crime.

(b) PROGRAMS AFFECTED- The certification requirement established by subsection (a) shall apply with respect to grants made under the following programs:

(1) DNA ANALYSIS BACKLOG ELIMINATION GRANTS- Section 2 of the DNA Analysis Backlog Elimination Act of 2000 (Public Law 106-546).

(2) PAUL COVERDELL NATIONAL FORENSIC SCIENCES IMPROVEMENT GRANTS- Part BB of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (as added by Public Law 106-561).

(3) DNA IDENTIFICATION GRANTS- Part X of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796kk et seq.).

(4) DRUG CONTROL AND SYSTEM IMPROVEMENT GRANTS- Subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3751 et seq.).

(5) PUBLIC SAFETY AND COMMUNITY POLICING GRANTS- Part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.).

(c) EFFECTIVE DATE- This section shall apply with respect to any grant made on or after the date that is 1 year after the date of enactment of this Act.

SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH AMENDMENT.

(a) APPLICATION FOR DNA TESTING- No State shall deny an application for DNA testing made by a prisoner in State custody who is under sentence of death, if the proposed DNA testing has the scientific potential to produce new, noncumulative evidence material to the claim of the prisoner that the prisoner did not commit--

(1) the offense for which the prisoner was sentenced to death; or

(2) any other offense that a sentencing authority may have relied upon when it sentenced the prisoner to death.

(b) OPPORTUNITY TO PRESENT RESULTS OF DNA TESTING- No State shall rely upon a time limit or procedural default rule to deny a prisoner in State custody who is under sentence of death an opportunity to present in an appropriate State court new, noncumulative DNA results that establish a reasonable probability that the prisoner did not commit an offense described in subsection (a).

(c) REMEDY- A prisoner in State custody who is under sentence of death may enforce subsections (a) and (b) in a civil action for declaratory or injunctive relief, filed either in a State court of general jurisdiction or in a district court of the United States, naming an executive or judicial officer of the State as defendant.

(d) FINALITY RULE UNAFFECTED- An application under this section shall not be considered an application for a writ of habeas corpus under section 2254 of title 28, United States Code, for purposes of determining whether it or any other application is a second or successive application under section 2254.

SEC. 105. GRANTS TO PROSECUTORS FOR DNA TESTING PROGRAMS.

Section 501(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3751(b)) is amended by--

(1) striking `and' at the end of paragraph (25);

(2) striking the period at the end of paragraph (26) and inserting `; and'; and

(3) adding at the end the following:

`(27) prosecutor-initiated programs to conduct a systematic review of convictions to identify cases in which DNA testing is appropriate and to offer DNA testing to inmates in such cases.'.

TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

SEC. 201. NATIONAL COMMISSION ON CAPITAL REPRESENTATION.

(a) ESTABLISHMENT- There is established the National Commission on Capital Representation (referred to in this section as the `Commission').

(b) DUTIES- The Commission shall--

(1) survey existing and proposed systems for appointing counsel in capital cases, and the amounts actually paid by governmental entities for capital defense services; and

(2) formulate standards specifying the elements of an effective system for providing adequate representation, including counsel and investigative, expert, and other services necessary for adequate representation, to--

(A) indigents charged with offenses for which capital punishment is sought;

(B) indigents who have been sentenced to death and who seek appellate or collateral review in State court; and

(C) indigents who have been sentenced to death and who seek certiorari review in the Supreme Court of the United States.

(c) ELEMENTS- The elements of an effective system described in subsection (b)(2) shall include--

(1) a centralized and independent appointing authority, which shall--

(A) recruit attorneys who are qualified to be appointed in the proceedings specified in subsection (b)(2);

(B) draft and annually publish a roster of qualified attorneys;

(C) draft and annually publish qualifications and performance standards that attorneys must satisfy to be listed on the roster and procedures by which qualified attorneys are identified;

(D) periodically review the roster, monitor the performance of all attorneys appointed, provide a mechanism by which members of the relevant State Bar may comment on the performance of their peers, and delete the name of any attorney who fails to satisfactorily complete regular training programs on the representation of clients in capital cases, fails to meet performance standards in a case to which the attorney is appointed, or otherwise fails to demonstrate continuing competence to represent clients in capital cases;

(E) conduct or sponsor specialized training programs for attorneys representing clients in capital cases;

(F) appoint lead counsel and co-counsel from the roster to represent a client in a capital case promptly upon receiving notice of the need for an appointment from the relevant State court; and

(G) report the appointment, or the failure of the client to accept such appointment, to the court requesting the appointment;

(2) adequate compensation of private attorneys for actual time and service, computed on an hourly basis and at a reasonable hourly rate in light of the qualifications and experience of the attorney and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases;

(3) reimbursement of private attorneys and public defender organizations for attorney expenses reasonably incurred in the representation of a client in a capital case; and

(4) reimbursement of private attorneys and public defender organizations for the reasonable costs of law clerks, paralegals, investigators, experts, scientific tests, and other support services necessary in the representation of a client in a capital case.

(d) MEMBERSHIP-

(1) NUMBER AND APPOINTMENT- The Commission shall be composed of 9 members, as follows:

(A) Four members appointed by the President on the basis of their expertise and eminence within the field of criminal justice, 2 of whom have 10

years or more experience in representing defendants in State capital proceedings, including trial, direct appeal, or post-conviction proceedings, and 2 of whom have 10 years or more experience in prosecuting defendants in such proceedings.

(B) Two members appointed by the Conference of Chief Justices, from among the members of the judiciaries of the several States.

(C) Two members appointed by the Chief Justice of the United States, from among the members of the Federal Judiciary.

(D) The Chairman of the Committee on Defender Services of the Judicial Conference of the United States, or a designee of the Chairman.

(2) EX OFFICIO MEMBER- The Executive Director of the State Justice Institute, or a designee of the Executive Director, shall serve as an ex officio nonvoting member of the Commission.

(3) POLITICAL AFFILIATION- Not more than 2 members appointed under paragraph (1)(A) may be of the same political party.

(4) GEOGRAPHIC DISTRIBUTION- The appointment of individuals under paragraph (1) shall, to the maximum extent practicable, be made so as to ensure that different geographic areas of the United States are represented in the membership of the Commission.

(5) TERMS- Members of the Commission appointed under subparagraphs (A), (B), and (C) of paragraph (1) shall be appointed for the life of the Commission.

(6) DEADLINE FOR APPOINTMENTS- All appointments to the Commission shall be made not later than 45 days after the date of enactment of this Act.

(7) VACANCIES- A vacancy in the Commission shall not affect its powers, and shall be filled in the same manner in which the original appointment was made.

(8) NO COMPENSATION- Members of the Commission shall serve without compensation for their service.

(9) TRAVEL EXPENSES- Members of the Commission shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(10) QUORUM- A majority of the members of the Commission shall constitute a quorum, but a lesser number may hold hearings.

(11) INITIAL MEETING- The initial meeting of the Commission shall occur not later than 30 days after the date on which all initial members of the Commission have been appointed.

(12) CHAIRPERSON- At the initial meeting of the Commission, a majority of the members of the Commission present and voting shall elect a Chairperson from among the members of the Commission appointed under paragraph (1).

(e) STAFF-

(1) IN GENERAL- The Commission may appoint and fix the pay of such personnel as the Commission considers appropriate.

(2) EXPERTS AND CONSULTANTS- The Commission may procure temporary and intermittent services under section 3109(b) of title 5, United States Code.

(f) POWERS-

(1) INFORMATION-GATHERING ACTIVITIES- The Commission may, for the purpose of carrying out this section, hold hearings, receive public comment and testimony, initiate surveys, and undertake such other activities to gather information as the Commission may find advisable.

(2) OBTAINING OFFICIAL INFORMATION- The Commission may secure directly from any department or agency of the United States such information as the Commission considers necessary to carry out this section. Upon request of the chairperson of the Commission, the head of that department or agency shall provide such information, except to the extent prohibited by law.

(3) ADMINISTRATIVE SUPPORT SERVICES- Upon the request of the Commission, the Administrator of General Services shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under this section.

(4) POSTAL SERVICES- The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.

(g) REPORT-

(1) IN GENERAL- The Commission shall submit a report to the President and the Congress before the end of the 1-year period beginning after the first meeting of all members of the Commission.

(2) CONTENTS- The report submitted under paragraph (1) shall contain--

(A) a comparative analysis of existing and proposed systems for appointing counsel in capital cases, and the amounts actually paid by

governmental entities for capital defense services; and

(B) such standards as are formulated by the Commission pursuant to subsection (b)(2), together with such commentary and recommendations as the Commission considers appropriate.

(h) TERMINATION- The Commission shall terminate 90 days after submitting the report under subsection (g).

(i) EXPENSES OF COMMISSION- There are authorized to be appropriated to pay any expenses of the Commission such sums as may be necessary not to exceed $1,000,000. Any sums appropriated for such purposes are authorized to remain available until expended, or until the termination of the Commission pursuant to subsection (h), whichever occurs first.

SEC. 202. CAPITAL DEFENSE INCENTIVE GRANTS.

The State Justice Institute Act of 1984 (42 U.S.C. 10701 et seq.) is amended by inserting after section 207 the following:

`SEC. 207A. CAPITAL DEFENSE INCENTIVE GRANTS.

`(a) PROGRAM AUTHORIZED- The State Justice Institute (referred to in this section as the `Institute') may make grants to State agencies and organizations responsible for the administration of standards of legal competence for counsel in capital cases, for the purposes of--

`(1) implementing new mechanisms or supporting existing mechanisms for providing representation in capital cases that comply with the standards promulgated by the National Commission on Capital Representation pursuant to section 201(b) of the Innocence Protection Act of 2001; and

`(2) otherwise improving the quality of legal representation in capital cases.

`(b) USE OF FUNDS- Funds made available under this section may be used for any purpose that the Institute determines is likely to achieve the purposes described in subsection (a), including--

`(1) training and development of training capacity to ensure that attorneys assigned to capital cases meet such standards;

`(2) augmentation of attorney, paralegal, investigator, expert witness, and other staff and services necessary for capital defense; and

`(3) development of new mechanisms for addressing complaints about attorney competence and performance in capital cases.

`(c) APPLICATIONS-

`(1) IN GENERAL- No grant may be made under this section unless an application has been submitted to, and approved by, the Institute.

`(2) APPLICATION- An application for a grant under this section shall be submitted in such form, and contain such information, as the Institute may prescribe by regulation or guideline.

`(3) CONTENTS- In accordance with the regulations or guidelines established by the Institute, each application for a grant under this section shall--

`(A) include a long-term strategy and detailed implementation program that reflects consultation with the organized bar of the State, the highest court of the State, and the Attorney General of the State, and reflects consideration of a statewide strategy; and

`(B) specify plans for obtaining necessary support and continuing the proposed program following the termination of Federal support.

`(d) RULES AND REGULATIONS- The Institute may issue rules, regulations, guidelines, and instructions, as necessary, to carry out the purposes of this section.

`(e) TECHNICAL ASSISTANCE AND TRAINING- To assist and measure the effectiveness and performance of programs funded under this section, the Institute may provide technical assistance and training, as required.

`(f) GRANT PERIOD- A grant under this section shall be made for a period not longer than 3 years, but may be renewed on such terms as the Institute may require.

`(g) LIMITATIONS ON USE OF FUNDS-

`(1) NONSUPPLANTING REQUIREMENT- Funds made available under this section shall not be used to supplant State or local funds, but shall be used to supplement the amount of funds that would, in the absence of Federal funds received under this section, be made available from States or local sources.

`(2) FEDERAL SHARE- The Federal share of a grant made under this part may not exceed--

`(A) for the first fiscal year for which a program receives assistance, 75 percent of the total costs of such program; and

`(B) for subsequent fiscal years for which a program receives assistance, 50 percent of the total costs of such program.

`(3) ADMINISTRATIVE COSTS- A State agency or organization may not use more than 5 percent of the funds it receives from this section for administrative expenses, including expenses incurred in preparing reports under subsection (h).

`(h) REPORT- Each State agency or organization that receives a grant under this section shall submit to the Institute, at such times and in such format as the Institute may require, a report that contains--

`(1) a summary of the activities carried out under the grant and an assessment of the effectiveness of such activities in achieving ongoing compliance with the standards formulated pursuant to section 201(b) of the Innocence Protection Act of 2001 and improving the quality of representation in capital cases; and

`(2) such other information as the Institute may require.

`(i) REPORT TO CONGRESS- Not later than 90 days after the end of each fiscal year for which grants are made under this section, the Institute shall submit to Congress a report that includes--

`(1) the aggregate amount of grants made under this part to each State agency or organization for such fiscal year;

`(2) a summary of the information provided in compliance with subsection (h); and

`(3) an independent evaluation of the effectiveness of the programs that received funding under this section in achieving ongoing compliance with the standards formulated pursuant to section 201(b) of the Innocence Protection Act of 2001 and improving the quality of representation in capital cases.

`(j) DEFINITIONS- In this section--

`(1) the term `capital case'--

`(A) means any criminal case in which a defendant prosecuted in a State court is subject to a sentence of death or in which a death sentence has been imposed; and

`(B) includes all proceedings filed in connection with the case, up to and including direct appellate review and post-conviction review in State court; and

`(2) the term `representation' includes counsel and investigative, expert, and other services necessary for adequate representation.

`(k) AUTHORIZATION OF APPROPRIATIONS-

`(1) IN GENERAL- There are authorized to be appropriated to carry out this section, in addition to other amounts authorized by this Act, to remain available until expended, $50,000,000 for fiscal year 2002, and such sums as may be necessary for fiscal years 2003 and 2004.

`(2) TECHNICAL ASSISTANCE AND TRAINING- Not more than 3 percent of the amount made available under paragraph (1) for a fiscal year shall be available for technical assistance and training activities by the Institute under subsection (e).

`(3) EVALUATIONS- Up to 5 percent of the amount authorized to be appropriated under paragraph (1) in any fiscal year may be used for administrative expenses, including expenses incurred in preparing reports under subsection (i).'.

SEC. 203. AMENDMENTS TO PRISON GRANT PROGRAMS.

(a) IN GENERAL- Subtitle A of title II of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 13701 et seq.) is amended by adding at the end the following:

`SEC. 20110. STANDARDS FOR CAPITAL REPRESENTATION.

`(a) WITHHOLDING OF FUNDS FOR NONCOMPLIANCE WITH STANDARDS FOR CAPITAL REPRESENTATION-

`(1) IN GENERAL- The Attorney General shall withhold a portion of any grant funds awarded to a State or unit of local government under this subtitle on the first day of each fiscal year after the second fiscal year beginning after September 30, 2001, if such State, or the State to which such unit of local government appertains--

`(A) prescribes, authorizes, or permits the penalty of death for any offense, and sought, imposed, or administered such penalty at any time during the preceding 5 fiscal years; and

`(B) has not established or does not maintain an effective system for providing adequate representation for indigent persons in capital cases, in compliance with the standards formulated by the National Commission on Capital Representation pursuant to section 201(b) of the Innocence Protection Act of 2001.

`(2) WITHHOLDING FORMULA- The amount to be withheld under paragraph (1) shall be, in the first fiscal year that a State is not in compliance, 10 percent of any grant funds awarded under this subtitle to such State and any unit of local government appertaining thereto, and shall increase by 10 percent for each year of noncompliance thereafter, up to a maximum of 60 percent.

`(3) DISPOSITION OF WITHHELD FUNDS- Funds withheld under this subsection from apportionment to any State or unit of local government shall be allotted by the Attorney General and paid to the States and units of local government receiving a grant under this subtitle, other than any State referred to in paragraph (1), and any unit of local government appertaining thereto, in a manner equivalent to the manner in which the allotment under this subtitle was determined.

`(b) WAIVER OF WITHHOLDING REQUIREMENT-

`(1) IN GENERAL- The Attorney General may waive in whole or in part the application of the requirement of subsection (a) for any 1-year period with respect to any State, where immediately preceding such 1-year period the Attorney General finds that such State has made and continues to make a good faith effort to comply with the standards formulated by the National Commission on Capital Representation pursuant to section 201(b) of the Innocence Protection Act of 2001.

`(2) LIMITATION ON WAIVER AUTHORITY- The Attorney General may not grant a waiver under paragraph (1) with respect to any State for 2 consecutive 1-year periods.

`(3) LIMITATION ON USE OF FUNDS- If the Attorney General grants a waiver under paragraph (1), the State shall be required to use the total amount of grant funds awarded to such State or any unit of local government appertaining thereto under this subtitle that would have been withheld under subsection (a) but for the waiver to improve the capability of such State to provide adequate representation in capital cases.

`(c) REPORT TO CONGRESS- Not later than 180 days after the end of each fiscal year for which grants are made under this subtitle, the Attorney General shall submit to Congress a report that includes, with respect to each State that prescribes, authorizes, or permits the penalty of death for any offense--

`(1) a detailed description of such State's system for providing representation to indigent persons in capital cases;

`(2) the amount of any grant funds withheld under subsection (a) for such fiscal year from such State or any unit of local government appertaining thereto, and an explanation of why such funds were withheld; and

`(3) the amount of any grant funds released to such State for such fiscal year pursuant to a waiver by the Attorney General under subsection (b), and an explanation of why waiver was granted.'.

(b) TECHNICAL AND CONFORMING AMENDMENT- The table of contents in section 2 of the Violent Crime Control and Law Enforcement Act of 1994 is amended by inserting after the item relating to section 20109 the following:

`Sec. 20110. Standards for capital representation.'.

SEC. 204. EFFECT ON PROCEDURAL DEFAULT RULES.

(a) IN GENERAL- Section 2254(e) of title 28, United States Code, is amended--

(1) in paragraph (1), by striking `In a proceeding' and inserting `Except as provided in paragraph (3), in a proceeding'; and

(2) by adding at the end the following:

`(3) In a proceeding instituted by an applicant under sentence of death, the court shall neither presume a finding of fact made by a State court to be correct nor decline to consider a claim on the ground that the applicant failed to raise such claim in State court at the time and in the manner prescribed by State law, if--

`(A) the applicant was financially unable to obtain adequate representation at the stage of the State proceedings at which the State court made the finding of fact or the applicant failed to raise the claim, and the applicant did not waive representation by counsel; and

`(B) the State did not provide representation to the applicant under a State system for providing representation that satisfied the standards formulated by the National Commission on Capital Representation pursuant to section 201(b) of the Innocence Protection Act of 2001.'.

(b) NO RETROACTIVE EFFECT- The amendments made by this section shall not apply to any case in which the relevant State court proceeding occurred before the end of the first fiscal year following the formulation of standards by the National Commission on Capital Representation pursuant to section 201(b) of the Innocence Protection Act of 2001.

SEC. 205. CAPITAL DEFENSE RESOURCE GRANTS.

Section 3006A of title 18, United States Code, is amended--

(1) by redesignating subsections (i), (j), and (k) as subsections (j), (k), and (l), respectively; and

(2) by inserting after subsection (h) the following:

`(i) CAPITAL DEFENSE RESOURCE GRANTS-

`(1) DEFINITIONS- In this subsection--

`(A) the term `capital case'--

`(i) means any criminal case in which a defendant prosecuted in a State court is subject to a sentence of death or in which a death sentence has been imposed; and

`(ii) includes all proceedings filed in connection with the case, including trial, appellate, and Federal and State post-conviction proceedings;

`(B) the term `defense services' includes--

`(i) recruitment of counsel;

`(ii) training of counsel; and

`(iii) legal and administrative support and assistance to counsel; and

`(C) the term `Director' means the Director of the Administrative Office of the United States Courts.

`(2) GRANT AWARD AND CONTRACT AUTHORITY- Notwithstanding subsection (g), the Director shall award grants to, or enter into contracts with, public agencies or private nonprofit organizations for the purpose of providing defense services in capital cases.

`(3) PURPOSES- Grants and contracts awarded under this subsection shall be used in connection with capital cases in the jurisdiction of the grant recipient for 1 or more of the following purposes:

`(A) Enhancing the availability, competence, and prompt assignment of counsel.

`(B) Encouraging continuity of representation between Federal and State proceedings.

`(C) Increasing the efficiency with which such cases are resolved.

`(4) GUIDELINES- The Director, in consultation with the Judicial Conference of the United States, shall develop guidelines to ensure that defense services provided by recipients of grants and contracts awarded under this subsection are consistent with applicable legal and ethical proscriptions governing the duties of counsel in capital cases.

`(5) CONSULTATION- In awarding grants and contracts under this subsection, the Director shall consult with representatives of the highest State court, the organized bar, and the defense bar of the jurisdiction to be served by the recipient of the grant or contract, and shall ensure coordination with grants administered by the State Justice Institute pursuant to section 207A of the State Justice Institute Act of 1984.'.

TITLE III--MISCELLANEOUS PROVISIONS

SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

Section 2513(e) of title 28, United States Code, is amended by striking `$5,000' and inserting `$50,000 for each 12-month period of incarceration, except that a plaintiff who was unjustly sentenced to death may be awarded not more than $100,000 for each 12-month period of incarceration.'.

SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.

Section 20105(b)(1) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 13705(b)(1)) is amended by--

(1) striking `and' at the end of subparagraph (A);

(2) striking the period at the end of subparagraph (B) and inserting `; and'; and

(3) adding at the end the following:

`(C) provide assurances to the Attorney General that the State, if it prescribes, authorizes, or permits the penalty of death for any offense, has established or will establish not later than 18 months after the enactment of the Innocence Protection Act of 2001, effective procedures for--

`(i) reasonably compensating persons found to have been unjustly convicted of an offense against the State and sentenced to death; and

`(ii) investigating the causes of such unjust convictions, publishing the results of such investigations, and taking steps to prevent such errors in future cases.'.

SEC. 303. CERTIFICATION REQUIREMENT IN FEDERAL DEATH PENALTY PROSECUTIONS.

(a) IN GENERAL- Chapter 228 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 3599. Certification requirement

`(a) CERTIFICATION BY ATTORNEY GENERAL- The Government shall not seek a sentence of death in any case brought before a court of the United States except upon the certification in writing of the Attorney General, which function of certification may not be delegated, that the Federal interest in the prosecution is more substantial than the interests of the State or local authorities.

`(b) REQUIREMENTS- A certification under subsection (a) shall state the basis on which the certification was made and the reasons for the certification.

`(c) STATE INTEREST- In States where the imposition of a sentence of death is not authorized by law, the fact that the maximum Federal sentence is death does not constitute a more substantial interest in Federal prosecution.

`(d) DEFINITION OF STATE- For purposes of this section, the term `State' includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

`(e) RULE OF CONSTRUCTION- This section does not create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.'.

(b) TECHNICAL AND CONFORMING AMENDMENT- The analysis for chapter 228 of title 28, United States Code, is amended by adding at the end the following:

`3599. Certification requirement.'.

SEC. 304. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT POSSIBILITY OF RELEASE.

(a) PURPOSE- The purpose of this section is to clarify that juries in death penalty prosecutions brought under the drug kingpin statute--like juries in all other Federal death penalty prosecutions--have the option of recommending life imprisonment without possibility of release.

(b) CLARIFICATION- Section 408(l) of the Controlled Substances Act (21 U.S.C. 848(l)), is amended by striking the first 2 sentences and inserting the following: `Upon a recommendation under subsection (k) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law.'.

SEC. 305. RIGHT TO AN INFORMED JURY.

Section 20105(b)(1) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 13705(b)(1)), as amended by section 302 of this Act, is amended by--

(1) striking `and' at the end of subparagraph (B);

(2) striking the period at the end of subparagraph (C) and inserting `; and'; and

(3) adding at the end the following:

`(D) provide assurances to the Attorney General that in any capital sentencing proceeding occurring after the date of enactment of the Innocence Protection Act of 2001 in which the jury has a role in determining the sentence imposed on the defendant, the court, at the request of the defendant, shall inform the jury of all statutorily authorized sentencing options in

the particular case, including applicable parole eligibility rules and terms.'.

SEC. 306. ANNUAL REPORTS.

(a) REPORT- Not later than 2 years after the date of enactment of this Act, and annually thereafter, the Attorney General shall prepare and transmit to Congress a report concerning the administration of capital punishment laws by the Federal Government and the States.

(b) REPORT ELEMENTS- The report required under subsection (a) shall include substantially the same categories of information as are included in the Bureau of Justice Statistics Bulletin entitled `Capital Punishment 1999' (December 2000, NCJ 184795), and shall also include the following additional categories of information, if such information can practicably be obtained:

(1) The percentage of death-eligible cases in which a death sentence is sought, and the percentage in which it is imposed.

(2) The race of the defendants in death-eligible cases, including death-eligible cases in which a death sentence is not sought, and the race of the victims.

(3) The percentage of capital cases in which counsel is retained by the defendant, and the percentage in which counsel is appointed by the court.

(4) The percentage of capital cases in which life without parole is available as an alternative to a death sentence, and the sentences imposed in such cases.

(5) The percentage of capital cases in which life without parole is not available as an alternative to a death sentence, and the sentences imposed in such cases.

(6) The frequency with which various statutory aggravating factors are invoked by the prosecution.

(7) The percentage of cases in which a death sentence or a conviction underlying a death sentence is vacated, reversed, or set aside, and a short statement of the reasons therefore.

(c) REQUEST FOR ASSISTANCE- In compiling the information referred to in subsection (b), the Attorney General shall, when necessary, request assistance from State and local prosecutors, defense attorneys, and courts, as appropriate. Requested assistance, whether provided or denied by a State or local official or entity, shall be noted in the reports referred to in subsection (a).

(d) PUBLIC DISCLOSURE- The Attorney General or the Director of the Bureau of Justice Assistance, as appropriate, shall ensure that the reports referred to in subsection (a) are--

(1) distributed to national print and broadcast media; and

(2) posted on an Internet website maintained by the Department of Justice.

SEC. 307. SENSE OF CONGRESS REGARDING THE EXECUTION OF JUVENILE OFFENDERS AND THE MENTALLY RETARDED.

It is the sense of Congress that the death penalty is disproportionate and offends contemporary standards of decency when applied to a person who is mentally retarded or who had not attained the age of 18 years at the time of the offense.

END