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DPIC SUMMARY: The Innocence Protection Act of 2004

The Justice for All Act of 2004, Public Law No: 108-405, became law on October 30, 2004, and affects the death penalty by creating a DNA testing program and authorizing grants to states for capital prosecution and capital defense improvement. Specifically, the act:


Kirk Bloodsworth (Photo: Loren Santow)

Provides rules and procedures for federal inmates applying for DNA testing.

Creates the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program and authorizes $25 million over five years to help states pay the cost of post-conviction DNA testing (Kirk Bloodsworth was the first death row inmate to be exonerated by DNA testing).

Authorizes grants to states for capital prosecution and capital defense improvement that can be used to train, oversee, and improve the quality of death penalty trials, as well as assist families of murder victims.

Innocence Protection Act of 2004

Title IV of the Justice for All Act, entitled the Innocence Protection Act of 2004, includes these three subtitles that affect the death penalty:

Subtitle A – Exonerating the innocent through DNA testing
Subtitle B – Improving the quality of representation in State capital cases
Subtitle C – Compensation for the wrongfully convicted.
Other Provisions
More Information

Subtitle A – Exonerating The Innocent Through DNA Testing

This provision provides rules and procedures for federal inmates under a sentence of imprisonment or a sentence of death applying for DNA testing. It requires that:

The applicant must assert under penalty of perjury that he or she is “actually innocent” of either the federal offense for which the applicant is imprisoned or on death row; or,

In death penalty cases, that he or she is “actually innocent” of another federal or state offense if exoneration of the offense would entitle the applicant to a reduced sentence or a new sentencing hearing;

The specific evidence to be tested must not have been previously tested, except that testing using a newer and more reliable method of testing may be requested;

The proposed DNA testing may produce new evidence raising a reasonable probability that the applicant did not commit the offense; 

The applicant must provide a current DNA sample for purposes of comparison with existing evidence.

The applicant has 5 years after enactment of this provision or 3 years after conviction, whichever comes later, to apply for DNA testing. After that time, an inmate’s application for testing will not be considered unless he or she can show a good reason for failing to apply earlier. The court may appoint counsel for an indigent applicant.

In capital cases, testing must be completed within 60 days after the government responds to the application.

Not later than 120 days after testing is complete, the court shall act, depending on the results. In cases in which the results are inconclusive, the court may deny relief or order further testing.

In cases in which the testing has “inculpatory results” (e. g., testing shows the applicant was a source of the DNA), the court may consider whether the assertion of innocence was false, and hold the applicant in contempt. If the applicant is convicted for false assertions made while applying for DNA testing, he or she will be sentenced to three years imprisonment.

If the DNA results exclude the applicant as a source of the DNA evidence, the applicant may file a motion for a new trial, which shall be granted when the test results, considered with all other evidence in the case, establish by compelling evidence that a new trial would result in an acquittal. Further, the applicant may file a motion for a new sentencing hearing if evidence of an offense was admitted during a federal death sentencing hearing and exoneration of that offense would entitle the applicant to a reduced sentence or new sentencing proceeding.

If a defendant is imprisoned for the offense, this subtitle also prohibits the government from destroying biological evidence that was secured in the investigation or prosecution of a federal offense unless the defendant did not file a motion for testing after being notified that the evidence may be destroyed, a court denied a motion for testing, or the evidence has already been tested and showed the defendant as a source of the DNA.

Further, it establishes the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program that authorizes $5 million a year in grants through 2009 to help states pay for post-conviction DNA testing.

Annual funds appropriated under the Kirk Bloodsworth Grant Program and other DNA testing provisions of the act will be held in reserve for distribution to eligible states and entities to defray costs associated with considering claims of innocence. For example, states that adopt reasonable procedures for DNA testing and the preservation of DNA evidence, in a manner comparable to the federal procedures outlined above, are eligible for such grants.

  Subtitle B – Improving The Quality of Representation In State Capital Cases

This provision authorizes a grant program, to be administered by the United States Attorney General, to improve the quality of prosecution and defense representation in capital cases. The grants may not be used to pay for lawyers in specific cases, but instead are to be used to establish, implement, or improve an effective system for providing competent legal representation to indigents charged with capital offenses or sentenced to death and seeking appellate review in state court.

The statute defines an “effective system” as one in which the responsibility for appointing qualified attorneys to represent indigents in capital cases is invested in:

a public defender program that relies on staff attorneys, members of the private bar, or both, to provide representation in capital cases; or

an entity established by statute or the highest state court, composed of individuals with demonstrated knowledge and expertise in capital cases; or

a system in which a trial judge appoints qualified attorneys from a roster maintained by a state or regional selection committee pursuant to a state statutory procedure existing before enactment of this Act.

An “effective system” must:

establish qualifications for defense attorneys in capital cases;

maintain a roster of qualified attorneys to represent capital defendants;

assign 2 attorneys in capital cases;

train and monitor the performance of capital defense attorneys; and

ensure funding of competent legal representation by the defense team and outside experts.

The program provides equal funds to:

design and implement training programs for capital prosecutors;

develop and enforce standards and qualifications for prosecutors; 

establish programs for prosecutors to review capital cases in order to identify cases in which post-conviction DNA testing is appropriate; and 

provide support and assistance to the families of murder victims.


A state desiring a grant must submit an application to the United States Attorney General describing the existing capital defender services and capital prosecution programs. The application must set out a long-term statewide strategy with a detailed implementation plan. The strategy must reflect consultation with the judiciary, the organized bar, and state and local prosecutor and defender organizations and must establish as a priority an improvement in the quality of trial-level representation in capital cases.

For the Capital Representation Grants, $75 million a year is authorized for five years, and states receiving funds must allocate them equally between prosecution and defense, submit reports to the Attorney General, and be evaluated for compliance with the terms and conditions of the grant.


Subtitle C – Compensation Of the Wrongfully Convicted

This provision increases the maximum amount of money that the United States may be required to pay in federal cases of unjust imprisonment from a flat $5,000 to $50,000 per year of imprisonment in a non-capital case, and $100,000 per year of incarceration in capital cases.

This subtitle also sets forth the “Sense of Congress Regarding Compensation in State Death Penalty Cases”: that states should provide reasonable compensation to any person found to have been unjustly convicted and sentenced to death. However, it does not require states to do so.


Other Provisions

In addition to the provisions affecting death penalty cases, the Justice For All Act:

Enacts the Debbie Smith Backlog Grant Program, providing $755 million to reduce the backlog of crime scene evidence awaiting analysis in our nation’s crime labs;

Enacts the DNA Sexual Assault Justice Act, authorizing more than $500 million for programs to improve the capacity of crime labs to conduct DNA analysis, reduce non-DNA backlogs, train examiners, support sexual assault forensic examiner programs, and promote the use of DNA to identify missing persons.

For more information, see:

Full Text of United States Public Law 108-405 (Formerly HR 5107)

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U. S. Death Penalty In Wake of Ashcroft U.S. death penalty in wake of Ashcroft
By David Hechler

The National Law Journal, November 29, 2004
www.law.com


The controversial tenure of Attorney General John Ashcroft is already being debated, even before he departs. But one aspect of his legacy is very much in doubt.

Will his effort to federalize the death penalty be viewed as a success?  And will his presumed successor, Alberto Gonzales, carry on Ashcroft's aggressive approach, overruling prosecutors' decisions not to seek capital punishment a third of the time?

This is not a subject the outgoing attorney general has touted among his accomplishments. In a long list of "successes" linked to the farewell letter posted on the Justice Department Web site, he never mentioned the death penalty.

Yet the issue carries enormous emotional weight, and Ashcroft's actions continue to spur debate. Just this month, two cases brought it to the fore. One raised the possibility that Gonzales will be flooded with requests to reconsider Ashcroft's death penalty decisions. The second underscored his penchant for overruling local prosecutors, which sometimes hamstrung their ability to negotiate cooperation agreements with defendants.

On Nov. 12, Nicholas Garaufis, a federal judge who sits in the Eastern District of New York, criticized Ashcroft's decision to seek the death penalty in the pending murder trial of mob boss Joseph Massino.  Convicted in July of seven racketeering murders, Massino already faces a mandatory sentence of life without parole.

"Mr. Ashcroft's choice to make such a sobering and potentially life-ending decision now," Garaufis read from a prepared statement at a court hearing, "after several delays, and only after tendering his resignation to the President and announcing to the country that he no longer wishes to preside over the Department of Justice, is deeply troubling to this court."

The judge acknowledged his responsibility to accept the decision, but added that he hopes Gonzales, upon taking office, will "reach an independent assessment."   "Accordingly," Garaufis said, "at the appropriate time, I shall issue an order directing the Government to resubmit the matter to the new Attorney General for his consideration."

Four days later came the announcement that Ashcroft had rescinded an order he issued in January 2003 demanding that prosecutors seek the death penalty in the murder trial of Jairo Zapata. The earlier decision drew immediate fire because lawyers from the U.S. Attorney's Office for the Eastern District of New York had already signed a cooperation agreement with Zapata. The attorney general's action was criticized for jeopardizing future agreements.

John Nowacki, a spokesman for the Justice Department, declined to address the criticism directly.   "We don't comment on the decision-making process in specific cases," he said.  "The process that's in place is one that ensures that each case is carefully and thoroughly reviewed at several levels before coming to the attorney general for his ultimate decision."  The goal is a system that delivers "fairness and consistency in its application across the country," he said.

Not even Massino's lawyer, David Breitbart, knows whether Ashcroft overruled Roslynn Mauskopf, the U.S. attorney for the Eastern District of New York, when he decided to seek the death penalty. That information is secret, said Breitbart, of counsel at New York's Mintz & Gold. He added that he was "pleasantly surprised" by the judge's statement.

Robert Blecker, a professor at New York Law School who supports the death penalty, though he has misgivings about the way it has been federalized, had a different reaction.  "It's not for a federal judge to direct the executive branch to reconsider its policies," said Blecker, who teaches a course on constitutional history. "He can state his opinion." He can urge Gonzales to reconsider. "But he has no authority to do it," Blecker said.

The judge declined to comment.

John Martin, who was a federal judge in the Southern District of New York before he resigned in 2003, said he saw nothing inappropriate about the judge expressing his opinion. He suggested that others might also seek to have the new attorney general review Ashcroft's decisions.   "Any defense lawyer representing a defendant would want to take any avenue they can to avoid the death penalty," Martin said.

Currently, 71 federal death penalty trials are pending nationwide, according to Kevin McNally, a lawyer at the Federal Death Penalty Resource Counsel Project, which assists capital defenders and functions as a clearinghouse.  In at least 15 of the pending cases Ashcroft overruled local prosecutors, McNally said. All told he has overruled prosecutors on at least 42 of 128 capital defendants (33%).  He overruled prosecutors the other way-declining to request the death penalty-on eight defendants. Though disagreements between the Justice Department and U.S. attorneys are not always disclosed, McNally said that his information comes from defense lawyers and public records.

No one can know, of course, what Gonzales will do. His confirmation hearing will not be held until January, at the earliest. Several close observers did not expect changes.  Ronald Tabak, who co-chairs the American Bar Association's Death Penalty Committee, said an article in the Atlantic "does not give one great hope that there will be greater attention devoted to these cases."

"The Texas Clemency Memos," by Alan Berlow (July/August 2003), described the way Gonzales briefed George W. Bush on death penalty cases when Bush, then governor of Texas, considered clemency petitions. As Bush's legal counsel, Gonzales wrote summaries that were "Bush's primary source of information," Berlow wrote.  "Many have a clear prosecutorial bias," he concluded, and they "repeatedly failed to apprise the governor of crucial issues in the cases at hand."

McNally found reason to hope that the new attorney general will overrule local prosecutors less frequently.  Ashcroft himself seems to have done so sparingly over the past six months, McNally said. His colleague, David Bruck, suggested Gonzales may be best positioned to bring about change, "like Nixon going to China."

The landscape first changed not under Ashcroft but under Janet Reno, Bill Clinton's attorney general. Between 1988, when the death penalty was restored to the federal arsenal, and 1995, few of these cases were tried in federal court. But the Federal Death Penalty Act of 1994 greatly expanded the offenses for which it could be sought. Trying to impose a measure of control, Reno began requiring prosecutors to clear decisions on all death-eligible cases, which wasn't popular with all of them.

"I got the impression that they wanted to make the decision themselves," Reno recalled. "I thought it was important that there be some overarching coordination of these cases."

Lawyers with very different views agreed that coordination is appropriate. But many expressed reservations about the changes that Ashcroft introduced. The most controversial was the requirement that U.S. attorneys clear plea bargains with him, which he added to the protocol in 2001; under Reno, they had autonomy. This was the most important change from Reno's administration to Ashcroft's, according to Mary Jo White, who, as the U.S. attorney for the Southern District of New York from 1993 to 2002, served under both.

To tackle the conspiracy cases so common in federal prosecution "you have to be able to secure the cooperation of people who are, at least in theory, death penalty-eligible," said White. "If you bog down in that process, you can lose that ability." Delays change minds, which can destroy cases against individuals "higher up on the culpability scale," she said.

In theory, it's possible to secure quick authorization for cooperation agreements, she said. "But I've never seen any system work that efficiently in Washington. Once you've got a committee in place," she said, referring to the Justice Department committee that considers death penalty cases and recommends action by the attorney general, "you're already talking about time delays."

To many, the Zapata case illustrated the problem. Implicated in a 1993 murder, Zapata was in prison on a gun conviction when he was questioned in 1997. He confessed his involvement and implicated others, according to his attorney, Peter Tomao, a solo practitioner in Garden City, N.Y.

It's unclear why nothing happened for years. It began as a state case and was taken over by the feds, Tomao said. It should have been resolved under Reno, when prosecutors still controlled their plea agreements, but the indictment wasn't unsealed until 2002. A deal was worked out in December of that year, only to be overruled by Ashcroft the following month.

"Overruling recommendations against the death penalty in cases where the defendants have agreed to cooperate inevitably jeopardizes the ability of U.S. Attorneys to conduct such investigations," U.S. District Judge John Gleeson of the Eastern District of New York wrote last year in the Virginia Law Review. 89 Va. L. Rev. 1697. "After Zapata, well-counseled defendants are unlikely to consider cooperation."

One year after Gleeson's article was published, Ashcroft changed his mind and a new plea was quickly worked out.  Tomao doesn't know what caused the change, but he'd filed motions in August to disqualify the prosecutor (so that he could call her as a witness), and to unseal records showing that Zapata's co-conspirators, who were involved in multiple homicides, were not facing the death penalty.

George Stamboulidis, a long-time federal prosecutor who is now a partner at Baker & Hostetler's New York office, expressed dismay at the Justice Department's posture.  "It breaks morale for prosecutors if they think their office has worked well and come up with balanced opinions, and then all of a sudden they get overruled by Washington for reasons they may not understand or agree with."

Rory Little, a professor at the University of California Hastings College of the Law, said it's especially problematic to overrule the way Ashcroft has. "People don't mind being told what they can't do," he said. "But they really resent being told what they have to do. Lawyering is an art, and if your heart's not in it, juries figure that out pretty quickly."

According to McNally, the three states in which Ashcroft has authorized the most death penalties are Virginia, New York and California. He has authorized a total of 40 trials.  Half are pending. The others have resulted in no death sentences.

The cost, said White, is not just in the money and resources expended.  It may also be reflected in cases not brought. Her office used to prosecute eight or 10 large racketeering cases a year.   Had she sought the death penalty in each, she said, it could have been reduced to two. "And that would not be a good thing for the public."


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