With more than 130 inmates nationwide who have been exonerated of their death penalty crimes through DNA testing, the public has shifted its position on the level of proof that is needed for a death penalty conviction. Lawmakers are part of that group.

If a bill currently before Congress is passed, then federal legislators will have made major inroads toward improving access to DNA testing for federal and state offenders, expanding training for prosecutors and defense attorneys on handling death penalty cases, increasing funding for completing DNA tests and increasing compensation for those found innocent post conviction.

"All of us, victims and potential victims, juries, police who have to do the arrest, the corrections officers who have to deal with overcrowded prisons and questions of innocence, are affected. This legislation would help inject a sense of confidence in the system. I think corrections officers most want to see the guilty guys in jail and innocent people on the street," said Peter Loge, Director of The Justice Project's Campaign for Criminal Justice Reform, which is a major supporter of the legislation.

As corrections agencies are often charged with carrying out the testing of certain offenders and are the gatekeepers for those on death row who seek DNA testing, the bill could mean some changes in how staff accomplish these tasks.

Originally presented to Congress in 2001 as the Innocence Protection Act, the legislation has since been re-worked and included as one part of the Advancing Justice Through DNA Technology Act, which was introduced to Congress October 1, 2003.

The legislation has three parts:
1) It would provides $755 million for the Debbie Smith DNA Backlog Grant Program to eliminate the current backlog of over 300,000 rape kits and other crime scene evidence awaiting DNA analysis in the nation's crime labs.
2) It would enact the DNA Sexual Assault Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act; authorize over $500 million for additional grant programs to improve the capacity of federal, state and local crime labs to conduct DNA analyses; reduce other forensic science backlogs; train criminal justice personnel in the use of DNA evidence; support sexual assault forensic examiner programs; and promote the use of DNA technology to identify missing persons, and,
3) It would enact the Innocence Protection Act, which creates a federal post-conviction DNA testing process to protect the innocent from wrongful prosecutions; help states improve the quality of legal representation in capital cases; and increase compensation in federal cases of wrongful conviction. In addition, the bill creates the Kirk Bloodsworth Post-Conviction DNA Testing Program and authorizes $25 million over five years to help states to defray the costs of post-conviction DNA testing. Bloodsworth was the first death row offender exonerated by post-conviction DNA testing.
The legislation solves a number of current problems related to post-conviction DNA testing including the inconsistency in standards used by states to offer DNA testing, the fluctuating and sometimes high cost to offenders and irregular access to DNA testing as well as inconsistencies with how evidence is preserved in death penalty cases.

Overall, the legislation has received high praise from inmate advocate groups and those concerned with DNA testing, as well as lawmakers.

General Support for Legislation is High

One major difference with the DNA legislation this time around, according to such groups as the American Civil Liberties Union, is that lawmakers from both sides of the aisle agreed to language for the bill before presenting it to Congress. As a result, many expect the bill will move quickly through the system.

"It's on a fast track from what we hear and because the negotiations were done before the bill was introduced, we expect that. They have voted it out of the House Judiciary Committee and we expect it to come on the House floor any day," said Jesslyn McCurdy, Legislative Counsel for the ACLU Legislative Office.

That will likely please many organizations following the legislation who say they have been waiting anxiously for such a day.

Huy Dao, Assistant Director of The Innocence Project, which has helped free many inmates through post-conviction DNA analysis, said it especially important that lawmakers are supporting the funding required by the bill.

"It controls federal money to states that can use it for their own criminal justice endeavors related to DNA testing and that defrays the costs in cases where people can't pay for it," said Dao referring to the $25 million over five years allotted to help the states.

The other important funds, he and others say, are the $755 million over five years to reduce the DNA backlog in crime labs across the country, which could lead to further exonerations.

"It provides money to solve rape cases and the other money is to do post-conviction testing of people on death row if DNA testing could demonstrate their innocence. It would also ask states to pro-actively look at death row requests. That is not necessarily being done. People on death row often have to sue to [be tested]," said Loge.

Another aspect of the bill that is receiving high marks is that it would provide for some standardization that is currently non-existent in relation to DNA testing and representation.

According to Loge, part of the funding is set aside for oversight of best practices in relation to DNA testing and trials.

"On the defense side too often there aren't standards for death penalty counsel. This money is available to states to help them develop systems for ensuring qualified defense counsel," he said.

Dao is also heartened by the attention the bill gives to standards and what it will do for how states approach the issue.

"There are some [states] that don't have post-conviction DNA testing legislation yet and others that have inadequate legislation. For example, the preservation of evidence is certainly not uniform nor is compensation for the exonerated," he said.

Dao also said that the bar that offenders have to meet to be eligible for DNA testing is also inconsistent state by state.

"The bill sets a huge precedent in establishing a template for states, but it also provides funding. It's important that the federal government is acknowledging this is an important part of our criminal justice system and we are going to pay attention to it," he added.

Another important part of the bill establishes the maximum amount of damages that a federal claims court can award in wrongful conviction cases to $50,000 per year in non-capital cases and $100,000 a year in capital cases. Currently, there is no standard for this and some released inmates never have the opportunity to sue for damages.

The bill also makes some changes to statutes of limitations for certain crimes, except sexual abuse, to let them run indefinitely until a person is implicated by a DNA match. In addition, the bill calls for the expansion of the federal Combined DNA Index System (CODIS) to include DNA samples collected by states. Both of these sections, however, have come under fire from the ACLU.

ACLU Raises Some Concerns

According to McCurdy of the ACLU, the organization has not taken a formal position on the bill, but has notified the House Judiciary Committee of its concerns with two areas of the legislation.

She said the ACLU's concerns rest with the expansion of the CODIS database where, under current wording, the database could include any DNA evidence that states collect. The problem is that each state collects DNA from different types of people. In Louisiana, for example, state law allows the collection of DNA samples from those who have been arrested but not yet convicted of a crime. Although McCurdy said this is not the general practice in the state, the fact that it is allowable and the information could be included in a national database concerns the ACLU.

"This policy undermines the presumption of innocence by allowing for a person's DNA to be included in CODIS, before he is ever tried, convicted, and in some cases charged with a crime," said the ACLU in its letter to the House Judiciary Committee last month.

This new legislation would change the composition of the current CODIS, which is populated by DNA from federal crimes of violence as well as DNA from state qualifying offenses.

"States decide what those are, but generally those are felonies. Some states crimes included only crimes of violence but others include all convicted felons," McCurdy said.

The ACLU's position is that the database should only include DNA profiles of persons who have been convicted of serious violent felonies.

The second area of concern is the provision that extends the statute of limitations for certain crimes. According to McCurdy, this means, for example, that DNA collected 20 years or more after a crime can be run against the existing DNA database and used to charge a person with a crime.

McCurdy said the ACLU questions this provision because there are questions about the reliability and accuracy of DNA evidence "as years go by."

"Witnesses could have died, evidence could be old, it is a concern about the person trying to defend themselves 10-20 years later," she said.

The ACLU says that if someone is charged 20 years after a crime, they may no longer have access to evidence that could exonerate them or to witnesses that could be important to their defense.

"Ironically, this could result in some innocent people being convicted of crimes they did not commit," said the ACLU in its letter to the House Judiciary Committee last month.

The crimes covered under this provision include murder or any other crime, besides sexual assault crimes, that involve DNA.

According to McCurdy, the ACLU hopes to make its case on these two issues when the bill comes before the Senate.

In the interim, other advocacy groups are hopeful that the legislation will finally be signed into law after two years of attempts.

"With the support of the Republicans and the Democrats, I feel pretty good about its passage [in the Senate]. Even people who may not have voted for President Bush agree that he has no interest in having innocent people executed." said Loge. The only downside to its passage is that it will be too late for 2004 budget appropriations and so the funding will likely be negotiated a year from now, Loge said. But for that, many advocates are willing to wait one more year.

Resources:

The Justice Project:
http://justice.policy.net/cjreform/ipa/

The Innocence Project - www.innocenceproject.org

American Civil Liberties Union - www.aclu.org/privacy/privacy.cfm?ID+14002&c=129

Section by Section Summary of Advancing Justice Through DNA Technology Act
http://leahy.senate.gov/press/200310/100103b.html