STATEMENT OF James E. Coleman, Jr. Chair, Section of Individual Rights and Responsibilities, American Bar Association, before the SUBCOMMITTEE ON CRIME of the COMMITTEE ON THE JUDICIARY of the UNITED STATES HOUSE OF REPRESENTATIVES concerning THE INNOCENCE PROTECTION ACT OF 2000

June 20, 2000

Mr. Chairman and Members of the Subcommittee:

My name is James Coleman; I am a law professor at the Duke University School of Law. I am here today testifying on behalf of the American Bar Association (ABA, or the Association). I currently serve as Chair of the ABA Section of Individual Rights and Responsibilities (IR&R). As a partner in the Washington, DC, law firm of Wilmer, Cutler & Pickering, I was pro bono counsel for three capital defendants in post-conviction proceedings.

The Association is pleased to speak in favor of Title II of H.R. 4167, The Innocence Protection Act of 2000, which would encourage and assist states to provide competent legal services at every stage of a capital prosecution. The ABA currently does not have a policy on DNA testing, although the House of Delegates is expected to consider a recommendation that it adopt such a policy at the ABA's Annual meeting next month in New York. As a result, however, the Association is not able at this time to endorse Title I of the bill, which would make DNA testing available to convicted offenders seeking to prove their innocence. But DNA testing is only one means of reducing the intolerable risk that innocent Americans may be wrongfully convicted and executed; it is relevant only in cases where there is biological material to identify the guilty person. On the other hand, Title II of the bill, by helping to ensure that all capital defendants are represented by competent counsel, would he! lp to reduce the risk of wrongful convictions and executions in all capital cases.

Passage of Title II of H.R. 4167 is critically important to maintaining public confidence in our system of criminal justice, especially in capital cases. In the last few years, we have witnessed a parade of innocent people released from prison and from Death Row, after demonstrating that they had been convicted of terrible crimes that they did not commit. In Illinois, where as many innocent people have been released from Death Row as presumably guilty people have been executed since 1976, Governor George Ryan in late January announced a statewide moratorium on executions until a commission could determine what is wrong with the system, and make recommendations to fix it. When the criminal justice system wrongfully sends an innocent person to prison or Death Row, it threatens all of us. The unimaginable horror of the execution of an innocent person should give all of us the resolve to do what is necessary to fix what now clearly is a broken system. Title II of H.R. 4167 would represent an important step in that direction.

With the exception of its unequivocal opposition to the imposition of the death penalty on juveniles who committed their crimes when they were under the age of 18, or on the mentally retarded, the ABA has not taken a position on the constitutionality or appropriateness of the death penalty. However, in the two decades since the death penalty was reinstated, the Association has adopted numerous policies concerning the administration of capital punishment. Underlying all of these policies is a concern to protect the innocent.

Prompted by such concern, the ABA has made protection of the right to effective assistance of competent counsel in all capital cases a top priority. In furtherance of that, the ABA has promulgated standards and guidelines for the effective representation of criminal defendants, with particular emphasis upon representation in capital cases. In 1989, for example, the Association adopted the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. Among other things, the Guidelines set forth the ways in which counsel in capital cases should perform various defense functions, from plea negotiations, through jury selection, the trial and sentencing phases, and post-conviction proceedings.

The Association also has undertaken to help provide volunteer legal representation for indigent death row inmates through its Death Penalty Representation Project. Over the years, the Project not only has commissioned studies on the availability and quality of counsel for individuals facing capital prosecution and execution, it currently is the leading national organization working to secure and provide volunteer legal assistance for indigent death row inmates throughout the nation.

But such policies and efforts, although important, have not been enough; the ABA decided that more was needed. In 1997, therefore, the House of Delegates of the Association voted overwhelmingly -- on a resolution developed by the ABA Section of Individual Rights and Responsibilities -- to call for a halt to executions until the 38 death penalty states and the federal government implement procedures to eliminate discrimination in capital sentencing and guarantee fundamental fairness and due process to those facing capital punishment. The Association also was prompted to take this important step because of Congress's passage of the Antiterrorism and Effective Death Penalty Reform Act of 1996 (AEDPA), which seriously limited the scope of federal habeas review of capital cases, and its earlier decision, in 1995, to terminate federal funding of the Post-Conviction Defender Organizations, which not only had represented death row prisoners, but also had advised and otherwise assisted appointed and pro bono lawyers who handled post-conviction capital cases in state and federal courts. In our view, those two steps significantly heightened the risk that an innocent person some day will be executed.

In the last two decades, the ABA has extensively reviewed the administration of the death penalty in this country. In that review, the Association has found a legal process stood on its head. Inadequate, indeed, often grossly inadequate, resources are devoted to state court trials, appeals, and post-conviction review of capital cases. In some rural counties in Texas, an appointed attorney receives no more than $800 to represent a capital defendant. Similar limits are in place in other states. In Virginia, the hourly rate for capital defense services works out to about $13. In an Alabama case, the lawyer appointed to represent a capital defendant in a widely publicized case was allowed a total of $500 to finance his work, including any investigations and expert services needed. Only one or two states provide full compensation. A number of states also cap reimbursable investigative expenses at levels that only contribute to the ineffectiveness of trial counsel. Finally, counsel handling state post-conviction petitions typically receive no remuneration; the consequence is that representation in proceedings that might free an innocent person from Death Row depends upon the charity of volunteer lawyers.

Poor compensation almost inevitably means that virtually the only lawyers who are available to handle capital cases for indigent defendants are inexperienced, ill-prepared, and under-funded. Even when experienced and competent lawyers are available, they often are overworked, and financially unable to handle more than one capital case. In such a system, it is not surprising that the inexperienced and untrained lawyers who often handle capital cases in many states often conduct inadequate factual investigations, fail to keep abreast of the complex and constantly changing legal doctrines that apply in capital litigation, and often make procedural errors that later preclude review of meritorious claims. Indeed, legal scholars and other observers of and participants in the system have filled volumes of law reviews and other journals with articles that document the almost routine incompetent representation in capital cases - - ignorance of death penalty law, overlooked objections, failure to present mitigating evidence, failure to file briefs on appeal, and similar deficiencies, all of an elementary nature.

The result of the failure of states to provide adequate representation in state trial, appellate, and post-conviction proceedings is predictable. Most important, it has led to serious and repeated errors that are undermining the public's confidence in the outcome in capital cases. It also has increased significantly the cost of prosecuting such cases, which often require retrial. And, it is one of the principal reasons for delay in capital cases. At the federal level, it has resulted in massive amounts of resources being poured into federal habeas corpus review pursued by lawyers compensated under the Anti-Drug Abuse of Act of 1988.

Within the last week, we have learned that incompetent trial and appellate counsel is one of the principal factors in the extraordinarily high number of serious errors committed in capital cases. According to Columbia University Law School Professor James S. Liebman, between 1976 and 1995, serious legal errors resulted in 68% of all death sentences being vacated and remanded for further proceedings. When the cases are retried, 82% of the convicted defendants are not re-sentenced to death, including 7% who were found to be actually innocent. The expensive and time-consuming proceedings necessary to uncover such an astonishing number of constitutional violations and to retry and re-review all of those cases without doubt are the single largest cause of delay in capital litigation.

Some have suggested that Professor Liebman's report proves that the current system works. To the contrary, I think it proves, as the title of his report suggests, that the system clearly is broken. No system that malfunctions so often can credibly be said to work. We are confusing the system's ability to detect errors and its ability fairly and accurately to try cases.

The Association believes that the focus of death penalty litigation should return to the state courts, where the trial once again should be the "main event." That is possible, however, only if the states begin to provide competent counsel at all stages of capital litigation.

In its review of the administration of the death penalty, the Association also has found that considerable time is spent litigating peripheral issues concerning the timing and manner of the defendant's presentation of claims at trial and on appeal, issues that have nothing to do with the merits of the defendant's claims. We found that litigating such peripheral procedural issues not only takes considerably more time than deciding the merits would take, but it also places capital defendants at the mercy of inadequate trial and appellate counsel who are responsible for the timing and manner of raising claims in state courts.

Finally, from its review of the administration of the death penalty, the Association believes that the system in most states is characterized by chaos. In those states that do not compensate post-conviction counsel, volunteer lawyers frequently are not available until an execution date is set. State and federal habeas corpus proceedings in such cases are rushed through, at the last minute, under the gun of a pending death warrant. Moreover, death warrants sometimes are signed unnecessarily and for political reasons, at points during the litigation when it is known by all involved that a stay of execution is legally required and assured. The Association believes that maintaining respect for the judiciary and assuring fairness requires that every death penalty conviction be reviewed in a deliberate, orderly, and professional process, during one meaningful round of state and federal habeas corpus review. The Association further believes that placing state and federal judges in the position of having constantly to issue stays of execution in the midst of that single round of review wastes resources and destroys public respect for the judiciary and for the criminal justice system.

ABA Recommendations To Ensure Competent Legal Services in Capital Cases

To address the problems that I have described, the ABA has made several recommendations. First, and most important, the Association calls upon all states to provide competent, adequately compensated counsel at all stages of capital litigation. The Association calls for a system for appointing counsel based upon the ABA Guidelines for Appointment and performance of Counsel in Death Penalty Cases, adopted by the Association in February 1989. The Guidelines call for each state to establish an independent appointing authority to develop qualification and compensation standards appropriate for that state, to recruit and train lawyers to handle capital cases, to certify them as competent in this specialty area, and to make the actual appointments of counsel in all cases.

As long as state court judges continue to make capital case assignments from the regular list of attorneys for appointment in criminal cases and to compensate them at patently inadequate rates, the problems of incompetent counsel inevitably will continue. Unskilled attorneys will continue to make serious errors during trial; subsequently, because they are professionally obligated to do so, post-conviction counsel will leave no stone unturned in their efforts to discover those errors and to get death sentences reversed; state appellate courts and federal habeas corpus courts then will bear the brunt of correcting those errors. The only long-term answer is to conduct trials correctly in the first place; and in the Association's view, that requires independently appointed qualified, competent, and reasonably compensated counsel.

The Association believes that any effort to reform the review process in capital cases will fail unless it addresses the root problem of inadequate counsel.

Some critics argue that Congress should leave the formulation of standards for independent appointment, qualification, competency, and compensation of appointed counsel to the state court of last resort or to the state legislature. For years, however, Congress did just that, but many states continue to neglect standards for the qualifications, competency, and compensation of appointed counsel. It now is clear that we no longer can wait for the states to act on their own. Congress should must act to ensure that certifiably competent counsel are appointed in the first place. This undoubtedly would substantially limit litigation of claims arising from the appointment of incompetent counsel.

Once appointed, the actual performance of a certified attorney would be subject to challenge only under the current, limited Strickland v. Washington standard. Moreover, because the accused would consistently have competent representation by qualified and reasonably compensated counsel, litigation of ineffective-assistance claims under the Strickland standard can be expected to decrease substantially, leaving state and federal reviewing courts to focus instead on the merits of any remaining constitutional issues.

Consistent with its duty to ensure that quality legal assistance is afforded to indigent capital defendants, the Guidelines also provide that the appointing authority should monitor the performance of assigned counsel, including defender offices, based upon publicized standards and procedures. Where there is compelling evidence that an attorney or defender office has inexcusably ignored basic responsibilities of an effective lawyer, whether or not the inadequate performance is constitutionally deficient, neither the attorney nor the defender office should be appointed in future capital cases.

The Innocence Protection Act Counsel Provisions

The Innocence Protection Act recognizes that several improvements to the administration of the death penalty system are necessary to reduce the risk that innocent persons will be executed, not just DNA testing, important as that may be in appropriate cases. H.R. 4167 recognizes that improving legal representation at all stages of capital proceedings is a critical step to reducing that risk in all cases.

H.R. 4167 would condition federal funding under the Byrne grant program on a certification that the state has established and maintains an "effective system" for providing competent legal services to indigent defendants at every stage of death penalty prosecution.

We are pleased that the elements of an "effective system" for providing competent legal services specified in H.R. 4167 track closely the ABA Guidelines. Although Section 201 of the bill leaves it to the Director of the Director of the Administrative Office of the United States Courts to specify the elements of an "effective system," the bill would require such a system to include a centralized and independent authority for appointing attorneys, reasonable compensation of appointed counsel, payment of reasonable expenses of the attorney, and payment of the reasonable costs of support services necessary in the defense of a capital case, including investigators and experts.

Ban on Execution of Juveniles and Mentally Retarded

The ABA also applauds Section 406 of H. R 4167, which expresses the sense of the Congress that the death penalty should not be applied to juvenile offenders and the mentally retarded. The ABA has adopted policies against the execution of juvenile offenders under the age of 18 at the time of their offenses, and offenders who are mentally retarded, as "mental retardation" is defined by the American Association of Mental Retardation. In the view of the Association, the execution of children and the mentally retarded is unacceptable in a civilized society, without regard to their guilt or innocence. Our view on this matter is shared by organizations in this country and around the world. With the possible exception of one execution in 1997, no democracy other than the United States executes offenders who are mentally retarded. There also is a strong international consensus against the execution of juveniles who commit capital offenses when they are under the age of 18. We believe the United States should join the other democracies and ban both practices.

Conclusion

John J. Curtin, Jr, former President of the American Bar Association told this committee in 1991, "Whatever you think about the death penalty, a system that will take life must first give justice." The subject of today's hearing is critical to our criminal justice system and to America's lawyers. Rightly or wrongly, the public generally assesses our legal system and hence our legal profession by its perception of how well the criminal justice system is functioning. Capital cases are the most visible and charged of all criminal cases. And frankly our legal system is not doing a good job handling them today. The Association believes that Title II of H.R. 4167 is critical to safeguard the two most important functions of the criminal justice system: protection of the innocent and punishment of the guilty.

On behalf of the American Bar Association, I appreciate this opportunity to appear before the Committee to participate in this important hearing. I will be glad to answer any questions the Committee may have concerning the Association's recommendations.