Innocence Protection Act: Death Penalty Reform on the Horizon

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous stabs at reform, the Innocence Protection Act (IPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of Massachusetts and Republican Ray LaHood of Illinois. As of March, the bill was co-sponsored by 15 Senators, 4 of them Republicans, and by an astounding 175 House members, 20 of them Republicans. Never before in recent history have so many members of Congress from both parties gone on record in support of strengthening procedural protections for capital defendants.

Nor is this just a round-up of the usual suspects. Both Leahy and Delahunt are former prosecutors, and the list of co-sponsors includes such relatively conservative members as Senator Joe Lieberman of Connecticut, Congressman Joe Scarborough of Florida and Congressman Chris Smith of New Jersey. Can Senate and House Judiciary Committee Chairmen Orrin Hatch (R-UT) and James Sensenbrenner (R-WI) be far behind?

This article describes how we arrived at this surprising political moment, summarizes the IPA, and analyzes the prospects for its enactment.

Path to Reform

A few years ago, opponents of the death penalty and those concerned about fairness in its administration were on the ropes. In 1994, Congress passed a crime bill that authorized capital punishment for more than 50 additional federal offenses. In 1996, a bill called the Anti-Terrorism and Effective Death Penalty Act became law and eviscerated federal habeas corpus review. The same year Congress wiped out federal funding for the Death Penalty Resource Centers that had scratched out a modicum of post-conviction fairness in key Death Belt states.

I worked for Senator Kennedy in those years, and I can report that the mood on the Senate floor was harsh and unforgiving. Members of Congress wanted more and faster executions, and had little concern for procedural niceties like competent counsel or federal review of the constitutionality of death sentences. Even the Great Writ fell victim to cries for vengeance following the Oklahoma City bombing.

What has happened in the five years since 1996 to alter the political landscape can be summarized in three letters: DNA.

As NACDL members know, advances in the study of human biology over the last decade have revolutionized the practice of criminal law. It is now possible to identify criminals with far greater precision than ever before based on analysis of blood, semen or other biological material left behind at a crime scene. While DNA technology has helped the police catch criminals, it has also exposed a national crisis in the administration of capital punishment by enabling investigators to exonerate defendants convicted long-ago. More than any other factor, these exonerations have caused a major shift in public attitudes toward the death penalty.

Since the Supreme Court permitted states to resume capital punishment in 1976, approximately 700 people have been executed in the United States. During the same time, according to the Death Penalty Information Center, 95 people sentenced to death have been exonerated almost one for every seven executed. The truth is that most of these death row prisoners have been exonerated by evidence other than DNA testing, but at the same time many non-capital defendants have been exonerated by DNA testing. The two...

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