October 29, 2003, 8:31 a.m.
Protection Racket
Congress prepares to fund the anti-death-penalty lobby.

Why is a Republican Congress considering a bill to fund anti-death-penalty activists? A bill that could result in murderers going free? A bill that was initially introduced to hurt George W. Bush? Beats me. But that's exactly what Congress is doing.

In early 2000, Democrats were portraying George W. Bush's Texas as a third-world hellhole where the water was dirty, the churches were filled with guns, and the streets ran red with the blood of unlucky defendants. A few anecdotes in which public defenders really had been lax in capital murder cases were extrapolated into a critique of law enforcement in the state. At around this time, Senator Patrick Leahy of Vermont and Representative William Delahunt of Massachusetts, both Democrats, introduced the "Innocence Protection Act." Supposedly, the bill was going to keep innocents from getting put on death row by, among other things, providing for better legal defenses for accused capital murderers.

In a modified form, the bill has been made part of the "Advancing Justice Through DNA Technology Act of 2003." Sponsors of the bill include Orrin Hatch and James Sensenbrenner, the chairmen of the House and Senate judiciary committees. The House Judiciary Committee voted for the bill 28-1. Conservative Jeff Flake was the only dissenter.

There are two major problems with the bill. First, its low standard for requiring new trials makes it likely that murderers will go free. The bill says that federal prisoners have a right to a new trial if a DNA test "establish[es] by a preponderance of evidence that a new trial would result in acquittal." This standard is very different from a requirement that the DNA test establish that the prisoner probably did not commit the crime. DNA at a murder scene can, of course, come from a variety of sources. It may be that the jury in the original trial, faced with a negative DNA result, would have found the defendant guilty anyway based on other evidence. But witnesses die and evidence deteriorates. Wait long enough to get a DNA test, and a new trial may be unlikely to yield a conviction even if the defendant actually committed the crime. The "result in acquittal" standard is used to allow new trials based on new evidence — but only within three years of the original trial. This bill has no such time limit. The result is not a reduced sentence, but the defendant's walking.

The second problem is that the bill bribes states to give up control of their public-defender systems. Essentially, the bill would funnel taxpayer dollars to the "capital resource centers" that Congress defunded in 1996, having found that they frequently abused the appeals process. (See pages 53-57 of this report for a long list of examples of such abuses.) Abuses would be likely since state courts, and other branches of state and local government, would no longer have supervisory authority over publicly funded defense counsel. Indeed, supporters of the Innocence Protection Act have been positively enthusiastic about one form of abuse. When Leahy ran the Judiciary Committee last year, it issued a report that said that capital resource centers "may legitimately assert a large number of claims" based on a "reversal of existing law." In other words, it's legitimate for tax-funded public defenders to file a "large number of claims" that are precluded by current law.

Is federal intervention necessary? States have been busy reforming their own capital-defense systems. But the same Leahy report mentioned earlier identified five cases in which ineffective counsel had led innocent people to be sentenced to death. But as the dissenting Republican report pointed out, the five cases Leahy discussed established no such thing. In one of the cases, the defendant was never actually sentenced to death. In three of the cases, it is not at all clear that the defendant was innocent. (Prosecutors declined to retry them because evidence had deteriorated. In one case, for example, the building in which the murder took place had been demolished.) The cases are marked more, in any case, by prosecutorial misconduct than by sloppy defenses.

That's true, by the way, of cases in which actually innocent people have been put on death row. It has generally been because prosecutors relied too much on unreliable evidence, such as the testimony of jailhouse informants, or because police and prosecutors acted in grossly improper ways. (Say hello to our friends in Cook County.) When prosecutors suppress evidence, the most competent defense attorneys will be at a disadvantage. The Innocence Protection Act's capital-defense provisions will not ameliorate that problem. But then, it's more about funneling tax money to opponents of the death penalty than springing truly innocent people from death row.

"What's disgusting is we're actually wasting time fighting this in a Republican Congress," says one Republican Senate staffer.