S. 486

Innocence Protection Act of 2001 (Introduced in the Senate)


1st Session

March 7, 2001

A bill to reduce the risk that innocent persons may be executed, and for other purposes.


    (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.


      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.


      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.


      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.



    (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.


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



      `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.


      `(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.


      `(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.


      `(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.'.


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