Advancing Justice Through DNA Technology Act of 2003

Mr. President, last month, the House and Senate overwhelmingly approved H.R. 5107, the Justice for All Act of 2004. This important criminal justice package includes the Innocence Protection Act, a modest and practical set of reforms aimed at reducing the risk of error in capital cases. I first introduced the IPA in February 2000, and as time passed, the bipartisan coalition in support of this pioneering bill grew. Capping these years of effort, the President has now signed the bill into law.

As enacted, the Innocence Protection Act contains several key reforms. First, it ensures access to post-conviction DNA testing for those serving time in prison or on death row for crimes they did not commit. Second, it establishes a grant program to help defray the costs of post-conviction DNA testing. This program is named in honor of Kirk Bloodsworth, the first death row inmate exonerated as a result of DNA testing. Third, the IPA establishes rules for preserving biological evidence secured in the investigation or prosecution of a Federal offense. Fourth, it authorizes grants to States to improve the quality of legal representation in capital cases. Finally, it substantially increases the maximum compensation that may be awarded in Federal cases of wrongful conviction.

Three weeks before the Senate approved H.R. 5107, the Senate Judiciary Committee wrapped up weeks of work on the Senate version of the bill, S. 1700, the Advancing Justice Through DNA Technology Act of 2003. The Committee voted to approve S. 1700 by a bipartisan vote of 11 to 7, but given time constraints and continuing negotiations, the Committee did not issue a report. Nor was there a conference report on the final legislation, as the Senate's acceptance of H.R. 5107 in substantially the form that it passed the House made a House-Senate conference unnecessary.

The upshot of all of this is that there is a substantial gap in the legislative history of this landmark legislation. As the principal author of the Innocence Protection Act, I offer the following remarks to fill that gap and guide those who will be implementing and enforcing these important provisions in the future.

I introduced S. 1700 on October 1, 2003, together with the Chairman of the Judiciary Committee, Senator Orrin Hatch, and 16 additional co- sponsors. On the same day, the Chairman of the House Judiciary Committee, Representative James Sensenbrenner, and 99 cosponsors introduced an identical measure, H.R. 3214.

The bill moved swiftly through the House. On October 16, 2003, the House Judiciary Committee reported an amended version of the bill by a vote of 28 to 1. The few changes to the bill were largely technical, clarifying, or stylistic in nature, and are described in the report accompanying the bill to the

full House. None of these changes affected title III of the bill, which contained the Innocence Protection Act. On November 5, 2003, the House passed a further amended version of the bill by a vote of 357 to 67. This version did include a significant change to the counsel provisions in title III, which I will address shortly.

In the Senate, the bill progressed more slowly. The Senate Judiciary Committee met in executive session on three occasions to consider S. 1700. At the first of these meetings, on July 22, 2004, the committee adopted an amendment in the nature of a substitute which replaced the text of S. 1700 with a modified version of H.R. 3214, as passed by the House.

The committee continued its mark-up of S. 1700 on September 9, 2004. The only amendment offered during this session sought to expand on a title I provision regarding the national DNA database, and did not affect any provision of the Innocence Protection Act. The committee rejected this amendment after lengthy debate and then adjourned.

The committee completed its consideration of S. 1700 on September 21, 2004. During this session, the committee rejected a total 21 amendments, 17 of which pertained to the Innocence Protection Act.

Senator Cornyn offered two of the IPA-related amendments. The first proposed to replace the text of S. 1700 with that of S. 1828--a pared down version of S. 1700 that stripped out the Innocence Protection Act in its entirety. The second Cornyn amendment proposed to strike an entire subtitle of S. 1700 dealing with competent counsel and substituting a different program that failed to require any accountability on the part of States accepting Federal money. The committee rejected both of these amendments by votes of 7 to 11.

Senator Kyl offered nine amendments to the IPA provisions regarding post-conviction DNA testing. Six of the amendments sought to restrict access to post-conviction DNA testing in the Federal system, as by requiring that any motions for such testing be filed within 5 years of the bill's enactment. One amendment proposed to raise the standard for obtaining a new Federal trial based on exculpatory DNA evidence-- instead of proving that a new trial would probably result in an acquittal, a defendant would be put to the virtually impossible burden of proving that he did not commit the offense. Two of the amendments would have reduced the incentive for States to adopt post-conviction DNA testing procedures comparable to the Federal procedures. The committee rejected all nine amendments by a vote of 7 to 10 or 7 to 11.

The other six IPA amendments, also offered by Senator Kyl, pertained to the IPA's requirement that Federal authorities preserve any biological evidence secured in the investigation or prosecution of a Federal offense for as long as a defendant remained incarcerated for that offense, subject to a number of practical and straightforward exceptions. All six amendments would have relaxed this requirement to some degree, allowing for the premature destruction of biological evidence that could clear the innocent and identify the guilty. The committee rejected all six amendments, most by a vote of 7 to 11.

Having voted down all amendments to the substitute amendment, the committee approved the bill by a final vote of 11 to 7. Those voting in the affirmative were myself, Chairman Hatch, and Senators Specter, DeWine, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin. Those voting in the negative were Senators Grassley, Kyl, Sessions, Graham, Craig, Chambliss, and Cornyn.

The committee vote on September 21, 2004, was the last action taken on S. 1700. As I discussed in a floor statement on October 7, 2004, no sooner had the bill been reported favorably to the full Senate than it was blocked by the same Senators who had held it up in Committee, buttressed by opposition from President Bush and Attorney General John Ashcroft. As a result, the full Senate was never afforded an opportunity to consider S. 1700 as a free-standing bill.

With time running out before the congressional adjournment, the House acted again. On September 22, 2004, the House Judiciary Committee approved the text of S. 1700 as part of H.R. 5107, a larger criminal justice package known as the Justice For All Act of 2004. There followed several weeks of intense negotiations involving House and Senate sponsors of the legislation, the handful of hold-out Senators, and the Department of Justice. While no agreement was reached, and the Department continued to oppose the bill, the House made a number of changes to the legislation to address concerns that had been raised. On October 6, 2004, the House passed a modified version of H.R. 5107 by a vote of 393 to 14 and sent it to the Senate. The Senate passed the bill three days later by voice vote, the House made a number of enrollment corrections the same day, and on October 30, 2004, President Bush signed the bill into law.

The Justice For All Act of 2004 enhances protections for victims of Federal crimes, increases Federal resources available to State and local governments to combat crimes with DNA technology, and provides safeguards to prevent wrongful convictions and executions.

Title I of the bill is the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act. The provisions of this title establish enhanced and enforceable rights for crime victims in the Federal criminal justice system, and authorize grants to help States implement and enforce their own victims' rights laws.

Titles II and III of the bill establish the Debbie Smith DNA Backlog Grant Program, which authorizes $755 million over five years to address the DNA backlog crisis in the nation's crime labs, and also creates other new grant programs to reduce forensic science backlogs, train criminal justice and medical personnel in the use of DNA evidence, and promote the use of DNA technology to identify missing persons.

Title IV of the bill, the Innocence Protection Act, increases access to post-conviction DNA testing that may prove innocence; establishes the Kirk Bloodsworth program to help defray the cost of post-conviction DNA testing; sets rules for preserving biological evidence secured in Federal criminal cases; authorizes grants to improve the quality of legal representation in State capital cases; and increases compensation in Federal cases of wrongful conviction.

The Innocence Protection Act reflects years of work and intense negotiation. I will now discuss its key provisions in greater detail.

Subtitle A of title IV enacts a new chapter in the Federal Criminal Code dealing with DNA testing. In little over a decade, some 153 people across the country have been exonerated by this remarkable technology. That number includes more than a dozen individuals who had been sentenced to death, some of whom came within days of being executed.

Post-conviction DNA testing does not merely exonerate the innocent it can also solve crimes and lead to the incarceration of very dangerous criminals. In case after case, DNA testing that exculpates a wrongfully convicted individual also inculpates the real criminal. Just this year, for example, the exoneration of Arthur Lee Whitfield in Virginia led to the identification of another inmate, already serving a life sentence, as the true perpetrator of two rapes for which Whitfield had served 22 years in prison. Last year, DNA evidence in the case of Kirk Bloodsworth was matched to another man, a convicted sex offender who has now pleaded guilty to the horrendous rape-murder that sent Mr. Bloodsworth to Maryland's death row.

There are still numerous prisoners throughout the country whose trials preceded modern DNA testing, or who did not receive pretrial testing for other reasons. If history is any guide, some of these individuals are innocent of any crime.

The new chapter 228A of title 18 is designed to ensure that Federal prisoners with real claims of innocence can get DNA testing of evidence that could support such claims. It does this by establishing rules for when a court shall order post-conviction DNA testing--to be codified at 18 U.S.C. Sec. 3600--and rules for when the government may dispose of biological evidence--to be codified at 18 U.S.C. Sec. 3600A.

Under section 3600, a court shall order DNA testing if it may produce

new material evidence that would raise a reasonable probability that the applicant did not commit the offense. This standard was the subject of intense negotiations, as members recognized that setting the standard too low could invite frivolous applications, while setting it too high could defeat the purpose of the legislation and result in grave injustice. I argued that in balancing these concerns, Congress should be guided by the principle that the criminal justice system should err on the side of permitting testing, in light of the low cost of DNA testing and the high cost of keeping the wrong person locked up. I am pleased that this view ultimately prevailed.

During the final round of negotiations on H.R. 5107--after the House Judiciary Committee reported the bill, and before final passage by the full House--the standard for ordering a DNA test was modified in two respects. First, as introduced in both the House and the Senate, section 3600(a)(8) appeared to impose on applicants the virtually impossible burden of showing that a DNA test ``would'' produce new material evidence of innocence. Under section 3600(a)(8) as enacted, applicants need only show that a test ``may'' produce such evidence.

Second, the same provision was stripped of unnecessary language to the effect that courts must ``assume the DNA test result excludes the applicant'' when considering whether DNA testing would raise a reasonable probability that the applicant did not commit the offense. Such an assumption is already implicit, since a court could not reasonably assess the probability that a convicted offender was wrongly convicted without weighing some new evidence of innocence, such as a DNA exclusion. With or without the assumption language, the question for a court boils down to this: Would a DNA exclusion make it more likely than not that the applicant was innocent? If so, the court should order DNA testing, provided that the various technical requirements set forth in section 3600(a) are met.

These requirements are simply stated. First, the applicant must assert his or her innocence under penalty of perjury. Second, the evidence to be tested must have been secured in relation to the investigation or prosecution of the offense. Third, the evidence must not have been previously subjected to DNA testing or, if it was, the applicant must be requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing. If the evidence was not previously tested, the applicant must also show that he did not waive the right to request DNA testing of that evidence in a court proceeding after the date of enactment of the IPA, or knowingly fail to request DNA testing of that evidence in a prior motion for post-conviction DNA testing. A waiver of the right to request DNA testing must be knowing and voluntary, and will ideally be made on the record and inquired into by the court before it is accepted.

Fourth, the evidence to be tested must be in the possession of the Government, subject to a chain of custody, and retained under conditions sufficient to ensure that it was not substituted, contaminated, tampered with, replaced, or altered in any material respect. Fifth, the proposed DNA testing must be reasonable in scope, use scientifically sound methods, and be consistent with accepted forensic practices. Sixth, the applicant must identify a theory of defense that is not inconsistent with an affirmative defense presented at trial, and that would establish the applicant's innocence. Seventh, the applicant must certify that he will provide a DNA sample for purposes of comparison.

Eighth, if the applicant was convicted following a trial, the identity of the perpetrator must have been at issue in the trial. If the applicant was convicted following a guilty plea, this requirement does not apply. Congress rightly rejected the Justice Department's position that inmates who pleaded guilty should be ineligible for DNA testing in light of the many documented cases in which defendants pleaded guilty to crimes they did not commit. Indeed, the Senate Judiciary Committee report in the 107th Congress on the Innocence Protection Act of 2002 describes four cases in which defendants pleaded guilty to crimes they did not commit and were later exonerated by DNA tests.

The final requirement established by section 3600 is that motions for post-conviction DNA testing be made ``in a timely fashion.'' Motions are entitled to a rebuttable presumption of timeliness if filed within five years of enactment of the IPA, or three years after the applicant's conviction, whichever is later. Thereafter, it is presumed that a motion is untimely, except upon good cause shown. As I explained in an earlier floor statement, the Justice Department has complained that the ``good cause'' exception is so broad you could drive a truck through it, and its stubborn opposition to the IPA turned in large part on the inclusion of this language. But while I agree that the language is broad, it is intentionally so; I would not agree to a presumption of untimeliness that could not be rebutted in most cases. At the same time, this provision should allow courts to deal summarily with the Department's hypothetical bogeyman--the guilty prisoner who ``games the system'' by waiting until the witnesses against him are dead and retrial is no longer possible, and only then seeking DNA testing.

As may be apparent from the awkwardness of the legislative language, the rebuttable presumption language in section 3600 was a late and hastily-drafted addition to the legislation. It replaced a relatively generic requirement that motions be filed for the purpose of demonstrating innocence, and not to delay the execution of the sentence of the administration of justice. The intention was to provide courts with more specific guidance on how to weed out frivolous motions.

Significantly, this provision is far from the rigid three-year time limit urged by the Justice Department. In rejecting a time limit, Congress recognized that the need for a DNA testing law is not temporary. That need will likely diminish over time as pre-trial DNA testing becomes more prevalent, but there will always be cases that fall through the cracks due to a defense lawyer's incompetence, a defendant's mental illness or mental retardation, or other reasons that we in Congress cannot and should not attempt to anticipate. Many of the individuals who have been exonerated by post-conviction DNA testing did not win freedom until many years after they were convicted and could still be in prison, or executed, if an arbitrary limitations period had been applied to their requests for DNA testing.

In addition to the requirements I have just described, section 3600 provides additional disincentives to filing false claims or trying to ``game the system''. Test results must be disclosed simultaneously to the applicant and the government. DNA submitted by the applicant will be run through the national DNA database, which could conceivably produce a match linking the applicant to an unsolved crime. Penalties are established in the event that testing inculpates the applicant. Further, because an applicant's assertion of innocence must be made under penalty of perjury, an applicant may be subject to prosecution for perjury, as well as for making a false statement, if his assertion is later disproved. If convicted, the applicant is subject to a 3-year prison sentence, which shall run consecutively to any other term of imprisonment he is serving.

Section 3600 also establishes procedures to be followed when DNA testing exculpates the applicant. A court shall grant relief if the test results, when considered with all the other evidence in the case, establish by compelling evidence that a new trial would result in an acquittal. The ``compelling evidence'' standard was another late addition; earlier versions of the IPA set the applicant's burden at ``a preponderance of the evidence.'' The point of the change, which I proposed, was to require courts to focus on the quality of the evidence supporting an applicant's new trial motion rather than trying to calculate the odds of a different verdict.

In setting the new trial standard in section 3600, Congress rejected the Justice Department's proposal, under which an applicant would have to prove, by clear and convincing evidence, that he did not commit the crime. That standard is substantially more demanding than the standard established for second or successive motions filed under 28 U.S.C. Sec. 2255 based

on newly discovered evidence--a remedy that is already open to Federal inmates with new evidence of a DNA exclusion. It would have made no sense for Congress to establish a more demanding new trial standard for cases involving a new DNA test result than for other cases involving newly discovered evidence. To the contrary, because DNA testing conducted years and even decades after a conviction can provide a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial, the standard should be and has appropriately been set a notch lower. This is consistent with Congress' decision, in section 204 of the Justice For All Act, to toll the statute of limitations in cases involving DNA evidence; both provisions recognize the unique ability of DNA testing to produce scientifically precise and highly probative evidence long after a crime has been committed.

Let me turn now to the new evidence-retention rules enacted by the IPA. As a general matter, section 3600A requires the preservation of all biological evidence secured in relation to a Federal criminal case for as long as any person remains incarcerated in connection with that case. But biological evidence may be destroyed--assuming that no other law requires its preservation--under certain limited circumstances, including, first, if a previous motion by the defendant for testing pursuant to section 3600 was denied and no appeal is pending; second, if the defendant knowingly and voluntarily waived the right to request DNA testing of the evidence in a court proceeding conducted after the date of enactment of the IPA; and third, if the evidence has already been tested pursuant to section 3600 and the results included the defendant as the source. If the evidence is unusually large or bulky, or if it must be returned to its rightful owner, the government may remove and retain representative portions of the evidence sufficient to preserve the defendant's rights under section 3600.

Biological evidence may also be destroyed if the government notifies everyone who remains incarcerated in the case that the evidence may be destroyed and no one requests DNA testing within 180 days of receiving such notice. It bears emphasis that this is a limited exception to the general rule favoring preservation of biological evidence. It is not anticipated, nor is it anyone's intention, that prosecutors simply hand out standardized notices pursuant to section 3600A every time a defendant is convicted. Indeed, one of the final changes made to H.R. 5107 clarified that the defendant's conviction must be final, and the defendant must have exhausted all opportunities for direct review of the conviction, before a section 3600A notice may be served. Even then, the better practice would be for the government to wait a number of years, until the destruction of the evidence is truly imminent, before providing notice.

In this regard, it should be noted that section 3600A does not preempt or supersede any law that may require evidence, including biological evidence, to be preserved. Thus, if another law requires evidence to be retained for 10 years after conviction, the government should wait at least that long before notifying the defendant that the evidence may be destroyed.

If the notice exception becomes the rule--if notices are routinely served as soon as convictions become final, and evidence is routinely destroyed six months later--Congress will need to revisit section 3600A. Having rejected any time limit on motions for post-conviction DNA testing, Congress should not allow the government to impose a de facto time limit of six months by rushing to destroy any evidence that could be the subject of a motion for post-conviction DNA testing. In implementing section 3600A, the government should never lose sight of its intended purpose, which is to ensure that biological evidence is available to permit future DNA testing that may help clear the innocent and catch the guilty.

The provisions I have discussed to this point will be codified in the Federal Criminal Code and will have direct application to Federal cases and Federal defendants only. Earlier versions of the IPA recognized a constitutional right of State prisoners to access biological evidence held by the State for the purpose of DNA testing; as enacted, however, the IPA contains no such provision. This is regrettable. As Fourth Circuit Judge Michael Luttig concluded in a 2002 opinion, ``A right of access to evidence for tests which could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required as a matter of basic fairness.'' An inmate's interest in pursuing his freedom--and possibly saving his life--is surely sufficient to outweigh any governmental interest in withholding access to potentially exculpatory evidence.

While taking no position on the constitutional question addressed by Judge Luttig, the IPA does encourage States that have not already done so to enact provisions similar to sections 3600 and 3600A. It does this in section 413 of subtitle A of title IV, by reserving the total amount of funds appropriated to carry out certain grant programs authorized in the Act for States that have adopted reasonable procedures for providing post-conviction DNA testing and preserving biological evidence.

It is never easy to attach strings to money that our States so desperately need, but it is necessary in this instance. Ten years after New York passed the nation's first post-conviction DNA testing statute, many States have yet to establish a right to post-conviction DNA testing, and others have erected unjustifiably high procedural hurdles to testing. For example, some States provide for post-conviction DNA testing only if the inmate is under sentence of death, and some rely on arbitrary and unnecessary time limits. To quote New York Attorney General Eliot Spitzer, who testified in support of the Innocence Protection Act in June 2000, ``DNA testing is too important to allow some States to offer no remedy to those incarcerated who may be innocent of the crimes for which they were convicted.''

The IPA affords States that accept the conditioned Federal funding some flexibility in crafting their DNA laws. State procedures for providing post-conviction DNA testing and preserving biological evidence need only be ``comparable,'' not identical, to the Federal procedures in sections 3600 and 3600A. This means that the procedures adopted by a State must, at a minimum, incorporate the core elements of the Federal procedures. For example, a State post-conviction DNA statute that covers only death row inmates and not inmates serving terms of incarceration would not be comparable to the Federal procedures. Similarly, a State statute that included a time limit or any other provision that would systematically deny testing to whole categories of prisoners who would receive testing under the Federal procedures would not be comparable to those procedures and, so, would not satisfy the Act.

When I first introduced the Innocence Protection Act in February 2000, only a handful of States had enacted post-conviction DNA testing laws. Today, a sizeable majority of States have enacted such laws, although as I already noted, the scope of these laws varies considerably. States that have already established a meaningful right to post-conviction DNA testing and reasonable rules for preserving biological evidence should not be required to change their laws as a condition of receiving Federal funds, and the IPA does not require this. Section 413 includes a ``grandfather clause'' that should cover many of the States that enacted DNA laws before enactment of the IPA, making them immediately eligible for the conditioned grant money. Not every State DNA law meets the terms of the grandfather clause, however, and the Justice Department should take great care in scrutinizing the laws of any State claiming its protection.

Post-conviction DNA testing is an essential safeguard that can save innocent lives when the trial process has failed to uncover the truth. But it would be neither just nor sensible to enact a law that merely expanded access to DNA testing. It would not be just because innocent people should not have to wait for years after trial to be exonerated and freed. It would not be sensible because society should not have to wait for years to know the truth. When innocent people are convicted and the guilty are permitted to walk free, any meaningful reform effort must consider the root causes of these wrongful convictions and take steps to address them. That is why subtitle B of title IV addresses what all

the statistics and evidence show is the single most frequent cause of wrongful convictions inadequate defense representation at trial.

Subtitle B was enacted against the backdrop of a shameful record of failure by many States to provide competent lawyers to indigent defendants facing the death penalty. Testimony in both the Senate and House Judiciary Committees revealed that of the 38 States that authorize capital punishment, very few have established effective statewide systems for identifying, appointing and compensating competent lawyers in capital cases.

Too often individuals facing the ultimate punishment are represented by lawyers who are drunk, sleeping, soon-to-be disbarred or just plain ineffective. Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense.

The Congress acted to remedy several major problems with the capital counsel appointment process. First, in many States the appointment of indigent counsel in criminal cases is a county-by-county responsibility. Unless a State legislature or court system adopts standards, each county is left to decide who is competent to represent criminal defendants and how much they should be paid. In smaller and less affluent counties where there is not a professional public defender system, the compensation rate for this service can be shockingly low and the quality of lawyers abysmal. This problem afflicts the indigent defense system in general, but is more acute in capital cases which are more complex and time consuming, and where the stakes are higher.

Second, in addition to the fiscal constraints on individual counties there are political pressures that make it difficult for well-meaning administrators to pay appointed lawyers a reasonable rate for their services. Criminal defendants are highly unpopular recipients of government largess, and accused murderers even less so. The Sixth Amendment to the U.S. Constitution requires that defendants be afforded effective representation at State expense, but efforts to invoke the Sixth Amendment to generate systemic change in State indigent defense systems have been largely unavailing.

A third major problem is that in almost all States, the appointment of capital defense lawyers is made by the trial judge rather than by an independent appointing authority. State trial judges, who are often elected officeholders, find themselves under political and administrative pressure to appoint lawyers unlikely to mount a vigorous, time-consuming or expensive defense.

Several States--including North Carolina and New York have--acted in recent years to establish statewide systems to deliver effective representation. North Carolina, for example, has established a centralized, independent appointing authority known as the Indigent Defense Services Commission. The Commission appoints a statewide Capital Defender who is accountable to the Commission but not accountable to the judiciary or to the political branches of government. The Capital Defender compiles and maintains a roster of private lawyers and public defenders who are qualified to try capital cases. The Capital Defender appoints two defense lawyers for each capital defendant. He may appoint himself and his staff, or he may appoint lawyers from the roster. The trial judge has no role whatsoever in the appointment of counsel. Congress viewed the North Carolina system as a national model for establishing an effective capital counsel system.

Section 421 of the new law authorizes a grant program, to be administered by the Attorney General, to improve the quality of legal representation provided to indigent defendants in State capital cases. Grants shall be used to establish, implement, or improve an effective system for providing competent legal representation in capital cases, but may not be used to fund representation in specific cases.

In earlier versions of the Innocence Protection Act, I had proposed to condition certain State defenses in habeas corpus actions on the State's establishment of an effective system for appointing capital counsel. In this manner, all capital States would have a strong incentive to improve their appointment systems, not merely those States that choose to apply for Federal funds. While this more ambitious proposal was not adopted, it is my intention that the grant program be administered in a manner that ensures meaningful improvements in this vital State function. Congress did not create this program to support existing death penalty systems in the States but rather to leverage needed improvements.

Under the new law, an effective system is one in which a public defender program or other entity establishes qualifications for attorneys who may be appointed to represent indigents in capital cases; establishes and maintains a roster of qualified attorneys and assigns attorneys from the roster; trains and monitors the performance of such attorneys; and ensures funding for the full cost of competent legal representation by the defense team and any outside experts.

The Act's definition of an effective system evolved from standards developed by the American Bar Association and adopted by other standard-setting bodies and commissions, such as the Constitution Project's blue-ribbon commission on capital punishment. Ideally, the entity that identifies and appoints defense lawyers will be independent of the political branches of State government, as are the authorities in North Carolina and New York. For example, the Act explicitly states that sitting prosecutors may not serve on the appointing entity. The underlying purpose of the scheme is to help insulate the appointment process from the political pressures that make it difficult for individual trial judges to appoint competent lawyers in individual cases.

In the course of negotiations to pass the bill in the House last year, I and other sponsors of the bill reluctantly agreed to accept an amendment, now section 421(e)(1)(C) of the Act, that has come to be described as ``the Texas carve-out.'' Under this provision, a State may qualify for a capital representation improvement grant if it has adopted and substantially complies with a State statutory procedure enacted before this Act under which the trial judge is required to appoint qualified attorneys from a roster maintained by a State or regional selection committee or similar entity.

In fact, the ``Texas carve-out'' is not a carve-out at all. It simply acknowledges that Texas is in the process of implementing a recent statewide reform law, the Fair Defense Act of 2001, and should be permitted to continue that process. If Texas is awarded a Federal grant it will still be required to improve its capital counsel appointment system, but Federal authorities will measure those improvements against standards in the 2001 Texas law.

Texas is not yet living up to the promise of the Fair Defense Act. A November 2003 report by the Equal Justice Center and the Texas Defender Service demonstrates that many Texas counties have failed to establish effective roster systems for identifying qualified lawyers and fail to provide reasonable compensation to capital counsel. If Texas accepts Federal funds under this new program, it will be required to live up to its own State standards, including the all-important requirement of reasonable compensation. The TDS report should be a guidepost for needed improvements.

It is conceivable that other States will qualify for consideration under section 421(e)(1)(C) but the provision should be strictly interpreted by grant administrators. The State law must have been enacted prior to enactment of the Innocence Protection Act, the trial judge must be required to make appointments from a roster of qualified lawyers, and the roster must be maintained by the State, a regional selection committee or a similar agency that is independent of the trial court. Congress was aware that the trial courts in many States maintain rosters from which lawyers may be chosen, but that is not the sort of rigorous quality control mechanism that section 421(e)(1)(C) requires.

States that establish an effective system under section 421(e)(1)(A) or (B) must compensate lawyers in accordance with section 421(e)(2)(F)(ii). That provision requires, among other things, that public defenders be compensated

according to a salary scale commensurate with the salary scale of the prosecutor's office in the jurisdiction. This requirement parallels the requirement that capital representation improvement grants are to be divided evenly between the defense and prosecution functions. In enacting the IPA, Congress generally approved of the concept of resource parity between the defense and the prosecution, a concept that is essential to ensuring fair trials in our adversarial system of justice.

Another important requirement concerning attorney compensation appears in section 421(e)(2)(F)(ii)(II) which states that appointed attorneys be compensated ``for actual time and service, computed on an hourly basis and at a reasonable hourly rate in light of the qualifications and experience of the attorney and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases.'' Again, this concept is drawn from the American Bar Association standards, which should be consulted by grant administrators in implementing the program. This new statutory requirement would clearly preclude a participating State from compensating attorneys under a flat fee or capped fee system, because such a system would not compensate the attorney for ``actual time and services, computed on an hourly basis.''

Moreover, the term ``reasonable hourly rate'' must be taken seriously by those who administer the new program. For example, there is general agreement among experts that the Federal compensation rate of $125 per hour is reasonable in most parts of the country.

In my view, a State rate comparable to the Federal rate should be considered ``reasonable,'' taking into account differences in the cost of living in various parts of the country. Capital cases are among the most complex, high stakes cases tried in any courthouse, and the lawyers who represent defendants in such cases should be paid at a rate comparable to that earned by other lawyers engaged in similarly important litigation.

One recent modification of section 421 would make clear that sitting prosecutors may not be members of the appointing authority established under section 421(e)(1)(B), although others with expertise in capital cases may participate. I agree that under this new language members of the judiciary may be members of the authority. On the other hand it would be impermissible for the appointing authority to delegate its authority to trial judges or to a group of trial judges. Such a delegation would defeat one of the central goals of the Act, which was to insulate the appointment power from the political and administrative pressures on trial judges.

As part of the same program established in section 421, section 422 authorizes grants to improve the representation of the public in State capital cases. Grants shall be used to design and implement training programs for capital prosecutors; develop, implement, and enforce appropriate standards and qualifications for such prosecutors and assess their performance; establish programs under which prosecutors conduct a systematic review of cases in which a defendant is sentenced to death in order to identify cases in which post-conviction DNA testing is appropriate; and assist the families of murder victims.

A key limitation on these prosecution grants is that they may not be used ``to fund, directly or indirectly, the prosecution of specific capital cases.'' Consistent with the IPA's overarching goal of ensuring that capital punishment is carried out in a fair and reliable manner, these grants should be used to establish and improve systems within prosecutor offices to minimize errors and abuses that may lead to wrongful convictions. They may not be used to hire additional capital prosecutors.

Section 423 establishes requirements for States applying for grants under this subtitle, including a long-term strategy and detailed implementation plan that reflects consultation with the judiciary, the organized bar, and State and local prosecutor and defender organizations, and establishes as a priority improvement in the quality of trial-level representation of indigents charged with capital crimes and trial-level prosecution of capital crimes in order to enhance the reliability of capital trial verdicts.

In the case of a State that relies on a statutory procedure described in section 421(e)(1)(C), the Texas-related provision I have previously discussed, a State officer must certify that the State is in compliance with State law. But such a certification should not be considered dispositive--Federal grant administrators must still assess the State's compliance with State law. Thus, the certification does not obviate the need for the Inspector General to carry out an independent assessment of the State's compliance under section 425(a)(3).

Section 424 requires States receiving funds under this subtitle to submit an annual report to the Attorney General identifying the activities carried out with the funds and explaining how each activity complies with the terms and conditions of the grant.

Section 425 directs the Inspector General of the Department of Justice to submit periodic reports to the Attorney General evaluating the compliance of each State receiving funds under this subtitle with the terms and conditions of the grant. In conducting such evaluations, the Inspector General shall give priority to States at the highest risk of noncompliance. If, after receiving a report from the Inspector General, the Attorney General finds that a State is not in compliance, the Attorney General shall take a series of steps to bring the State into compliance and report to Congress on the results.

Section 425(a)(4) provides an opportunity for public comment during the Inspector General's review. This provision is not intended to preclude a member of the public from seeking any other available legal remedy after the Attorney General has made a final determination of whether a State is in compliance with the requirements of the statute.

A special rule is provided in section 425(f) to ensure that any State relying on the Texas-related provision in section 421 is, in fact, complying with its own State law. Under the special rule, if the Inspector General determines that the State is not in compliance, Federal funds that would have otherwise been available to the prosecution function shall be used solely for the defense function. A separate determination by the Attorney General is not required to trigger this special rule.

Section 426 authorizes $75 million a year for 5years to carry out this subtitle. States receiving grants under this subtitle shall allocate the funds equally between the programs established in sections 421 and 422, subject to the special rule in section 425(f) that I just described.

The Justice For All Act is the most significant step we have taken in many years to improve the quality of justice in this country. The reforms it enacts will create a fairer system of justice, where the problems that have sent innocent people to death row are less likely to occur, where the American people can be more certain that violent criminals are caught and convicted instead of the innocent people who have been wrongly put behind bars for their crimes, and where victims and their families can be more certain of the accuracy, and finality, of the results. Once again, I thank my colleagues in both bodies who worked hard to resolve conflicts and congratulate them on this legislative achievement.

Mr. President, I rise today to introduce the ``Advancing Justice Through DNA Technology Act of 2003.'' This bill consists of the President's DNA initiative, which will expand and improve DNA databases used for criminal investigations and authorize additional funds to clear the backlog of untested DNA evidence in the nation's crime labs.

This bill offers several advantages over another version of the President's proposal that recently was introduced in the Senate. Today's bill gives States greater leeway in the use of DNA grants, removes arbitrary and unnecessary restrictions on the testing of criminal suspects' DNA samples, authorizes additional funds to clear the backlog of non-DNA forensics evidence, and--most importantly avoids tying this critical program to unrelated and highly controversial anti- death penalty legislation. I include in the record at the end of this statement a news story that describes the nature of the state counsel and other extraneous provisions that others have sought to attach to the President's proposal.

The bill that I introduce today is an unencumbered--and unabridged-- version of the President's DNA initiative: the DNA Sexual Assault Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act, which authorize the Debbie Smith DNA Backlog Grant Program and provide $755 million over five years to address the DNA backlog crisis in the nation's crime labs.

Today's bill includes the following improvements over other congressional versions of the President's proposal: First, this bill also expands funding for non-DNA forensics funding. Section 211 of the bill authorizes $100 million in new grant programs to eliminate ``the backlog in the analysis of any area of forensic science evidence, including firearms examination, latent prints, toxicology, controlled substances, forensic pathology, questionable documents, and trace evidence.''

Second, this bill increases the authorization for the Paul Coverdell grant program, in recognition of the fact that this program never has been funded at more than a small fraction of its authorization. Other congressional versions of the President's DNA initiative only authorize decreasing Coverdell funding in the coming years. This bill resets the clock on the Coverdell program, authorizing 2004 funding at the level for 2001, and subsequent years accordingly. This will allow sharp increases in Coverdell funding in the coming years.

Third, today's bill allows states to test DNA samples from convicts seeking exoneration against the national DNA database, in order to determine if the convict has committed other rapes or murders. The other congressional versions of the President's DNA initiative would bar such testing; they effectively would give convicts a free roll of the dice to challenge their current convictions while protecting them against the risk that they will be linked to other crimes. There is no reason why states should be prevented from solving such other crimes. If DNA evidence is good enough to test a prisoner's conviction for the crimes that we do know that he committed, it also is good enough to establish the prisoner's involvement in crimes that we do not yet know that he committed.

Fourth, this bill includes all Federal felony arrestees in the federal DNA database. Other versions of this bill exclude arrestees and place other unnecessary and arbitrary limits on the federal DNA index. The federal government already maintains fingerprints for all federal felony arrestees--there is no reason to treat DNA evidence differently. Nor is there any reason to prevent states and the federal government from solving other crimes committed by suspects arrested for a federal felony offense.

The Department of Justice has expressly informed Congress of the benefits of casting a wide net when including criminal suspects in the federal DNA database. During a July 17 hearing on the President's DNA initiative before the Crime Subcommittee of the House Judiciary Committee, Sarah Hart, the Director of the National Institute of Justice, testified that:

The efficacy of the DNA identification system depends

entirely on the profiles entered into it. Experience

demonstrates that broad collection and indexing of DNA

samples is critical to the effective use of the DNA

technology to solve rapes, murders, and other serious crimes.

The DNA sample that enables law enforcement to identify the

perpetrator of a rape, for example, often was not collected

in connection with an earlier rape. Rather, in a large

proportion of such cases, the sample was taken as a result of

the perpetrator's prior conviction for a non-violent crime

(such as a burglary, theft, or drug offense).

For example, in Virginia, which has authorized the

collection of DNA samples from all felons since 1991, a

review of cases in which offenders were linked to sex crimes

through DNA matching found that almost 40% of the offenders

had no prior convictions for sexual or violent offenses. Most

serious offenders do not confine themselves to violent

crimes. The experience of States with broad DNA collection

regimes demonstrates that DNA databases that include all

felons dramatically increase law enforcement's ability to

solve serious crimes.

Fifth, today's bill tolls the statute of limitations when a perpetrator has been identified through DNA--including in rape cases. Other congressional versions of the President's initiative inexplicably exclude sexual-assault crimes from the initiative's DNA tolling provision. There is no reason to do so. Indeed, it is in sexual-assault cases that DNA evidence is most likely to identify a perpetrator. At the July 17 hearing before the House Judiciary Committee's Crime Subcommittee, the Department of Justice testified in favor of tolling the statute of limitations to the full extent permitted by the Constitution.

Sixth, this bill allows grants for DNA training and research to be made to prosecutors' organizations, universities, and other private entities. Competing bill versions limit such grants to state and local governments, which is inconsistent with the President's DNA initiative.

Finally, the bill that I introduce today does not include the so- called ``Innocence Protection Act'' (IPA), a controversial anti-death penalty bill. The other congressional versions of the President's initiative have incorporated the IPA as a third title to the President's bill. At the July 17 hearing on the President's initiative, the Department of Justice made very clear that it ``do[es] not believe that legislation embodying the important proposals in the President's DNA initiative should be joined to these controversial [IPA] measures, which intrinsically are unrelated to DNA.''

In an October 27 letter to several members of Congress, the National District Attorneys Association also voiced strong objections to the capital-counsel provisions included in the IPA titles of the other bills. The NDAA's letter stated:

Section 321 [of these bills] attempts to re-establish the

old 'death penalty resource centers.' As you no doubt recall,

Congress abolished funding for such centers because they

devolved into organizations dedicated solely to the abolition

of the death penalty and were staffed and controlled by those

dedicated to the disruption of the criminal justice system by

whatever means available, ethical or otherwise. Section 321

would cause a return to such tactics by removing the ability

for the state judiciary to appoint counsel in death penalty

cases and giving that authority to a self-appointed group of

anti-death penalty attorneys.

. . . NDAA strongly urges deletion of Section 321 from this

bill . . . .

Elimination of Section 321 . . . keeps the appointment and

control of capital defense counsel in the hands of state

court judges who are responsible for insuring that defendants

receive quality representation. With Section 321 there is no

oversight of those individuals selected to develop state

standards for capital defense counsel.

The IPA titles included in the other congressional versions of the President's DNA initiative would authorize $500 million in Federal funding for State public defenders in State capital cases. There is no reason for Congress to finance the States' public-defender systems. The States adequately fund these programs themselves--indeed, many have enacted reforms and substantially increased funding for public defenders in recent years. When the IPA originally was introduced in 2000, it was targeted at the State of Texas. In 2001, the Texas legislature enacted reforms that completely overhauled the State's public-defender system. Yet the IPA provisions of the other Senate bill would declare Texas's reforms ``ineffective,'' and would force the State to again replace its indigent-defense system. Such a mandate makes no sense.

Moreover, there is no reason why States cannot or should not fund their own indigent-defender systems. Basic principles of federalism dictate that each level of government should finance its own operations. Once States become accustomed to and budget for Federal funds, they never are able to reject the money (or its conditions) in the future. And Federal funding inevitably comes with increasing Federal strings. In the long run, the States risk losing control over their own public-defender programs. There is no reason to start down this path.

The IPA proposals in the other congressional versions of the President's initiative begin by placing a number of conditions on the states' receipt of federal funds. Among these conditions is that states transfer control over capital defense to an ``entity'' composed of persons with ``demonstrated knowledge and expertise in capital representation.'' (This means private defense lawyers; public prosecutors likely would be barred by their jobs from serving or would be conflicted out.) This new ``entity'' would be charged with: (1) setting standards for capital-defense counsel; (2) deciding which lawyers meet those standards; and (3) appointing lawyers from the roster of qualifying attorneys to represent defendants in particular cases.

Essentially, the bill's new ``entity'' would completely control staffing of the defense in capital cases. From past experience with the ``capital resource centers,'' which were defunded by Congress in 1996, we know that hard-core death penalty opponents tend to gravitate toward these jobs, and will engage in litigation abuse when not supervised. Congress should not require the states to repeat its own past mistakes. It should not place anti-death penalty partisans in charge of public representation of capital defendants.

The other congressional versions of the President's proposal also include these additional highly problematic provisions:

They allow free DNA testing under very low standards. The competing bills provide that DNA tests shall be available to any prisoners if a negative test match would ``raise a reasonable probability that the applicant did not commit the offense.'' This standard is too low. Not all DNA evidence clearly came from the perpetrator of the crime or had anything to do with the crime--for example, a blood spot near the crime scene may or may not have come from the perpetrator. The ``reasonable probability'' standard means a prisoner could secure a test even if, despite a negative match, the other evidence would still show that the prisoner more likely than not committed the crime.

The bill requires only a chance that the prisoner did not commit the crime. Almost every prisoner with material to test will be able to meet this standard. Reopening old cases forces victims and their families to relive the ordeal of the crime. They should not be put through this unless a negative test result could at least show more likely than not that the prisoner did not commit the crime.

During the July 17 hearing before the House Crime Subcommittee, NIJ Director Sarah Hart expressly warned congress of the consequences of applying unduly low DNA testing standards. Director Hart testified:

[W]hile post-conviction DNA testing is necessary to correct

erroneous convictions imposed prior to the ready availability

of DNA technology, experience also points to the need to

ensure that postconviction DNA testing is appropriately

designed so as to benefit actually innocent persons, rather

than actually guilty criminals who wish to game the system or

retaliate against the victims of their crimes. Frequently,

the results of postconviction DNA testing sought by prisoners

confirm guilt, rather than establishing innocence. In such

cases, justice system resources are squandered and the system

has been misused to inflict further harm on the crime victim.

The recent experience of a local jurisdiction is instructive:

``Twice last month, DNA tests at the police crime lab in

St. Louis confirmed the guilt of convicted rapists. Two other

tests, last year and in 2001, also showed the right men were

behind bars for brutal rapes committed a decade or more

earlier.

`` [The St. Louis circuit attorney's] staff spent scores of

hours and thousands of dollars on those tests. She personally

counseled shaking, sobbing victims who were distraught to

learn that their traumas were being aired again.

`` One victim, she said, became suicidal and then vanished;

her family has not heard from her for months. Another, a deaf

elderly woman, grew so despondent that her son has not been

able to tell her the results of the DNA tests. Every time he

raises the issue, she squeezes her eyes shut so that she will

not be able to read his lips.

`` `She finally seemed to have some peace about the rape,

and now she's gone back to being angry,' the woman's son

said.

`` DNA tests confirmed that she was raped by Kenneth

Charron in 1985, when she was 59. To get that confirmation,

however, investigators had to collect a swab of saliva from

her so that they could analyze her DNA. They also had to

inquire about her sexual past, so they could be sure the

semen found in her home was not that of a consensual partner.

`` The questioning sent the woman into such depression that

she's now on medication. `None of this needed to happen,' her

son said. ''

Post-conviction DNA testing is not without its costs. It should be allowed only in carefully measured circumstances.

Another problematic provision in the other congressional versions of the President's DNA initiative would employ an unduly low standard to authorize new trials for very old cases. This provision of these bills is designed to allow new trials for prisoners who may have been convicted 20 or more years ago. But it is very often impossible to retry a case this old--key witnesses die or disappear or their memories simply fade, and other evidence deteriorates or is lost. For many such cases, ordering a new trial effectively means that the prisoner walks free.

Congress should make sure that there is compelling evidence of innocence before ordering new trials in old cases. Unfortunately, these other bills would allow a new trial if test results simply ``establish by a preponderance of the evidence that a new trial would result in an acquittal.'' The key language here is ``result in acquittal.'' It means a test result would not even have to indicate actual innocence; it need only conflict with other evidence of guilt so as to undermine the jury's ability to convict beyond a reasonable doubt. Prisoners could win new trials--and go free--even if, despite the negative DNA match, other evidence still shows the prisoner very likely committed the crime. Current law, Federal Rule 33, uses the liberal ``result in acquittal'' standard to allow new trials based on new evidence, but only within three years of trial. It usually is not difficult to retry a case within three years. But for older cases, Congress should insist on a showing of actual innocence before ordering an often-impossible new trial.

There are other problems with the IPA titles in the various congressional versions of the President's DNA initiative. These titles would vastly expand DNA testing by authorizing tests even for prisoners who pleaded guilty. According to the Department of Justice, 90 percent of Federal prisoners pleaded guilty. Extending free tests to these prisoners literally expands the pool of potential test seekers by an order of magnitude. A guilty plea also means that there is no trial record, which makes it much more difficult to assess the potential relevance of DNA-test evidence.

These other bills also impose broad and potentially costly new evidence-retention requirements on the States--requirements that appear to require States to preserve all potential DNA evidence in all cases, indefinitely. And these bills also would give the newly created capital-counsel ``entities'' an unwarranted degree of control over defense attorneys' budgets. States traditionally have charged courts and other responsible agencies with monitoring budgets for capital representation. Prosecutors do not have unlimited budgets. There is no reason to allow the capital-counsel entity to draw a blank check on State treasuries.

There are other problems with the IPA titles of the competing bills. Suffice it to say that these titles are unrelated to the President's DNA initiative and both the Department of Justice and the NDAA oppose adding them to the President's bill. We should not weigh down the President's DNA initiative with the IPA. For this reason, my colleagues and I today introduce the President's proposal--important, consensus legislation that should be enacted by Congress without delay.

Mr. President, I ask unanimous consent that the text of the bill, the following letter, and the following article all be printed in the Record.

Mr. President, I rise today to introduce the ``Advancing Justice Through DNA Technology Act of 2003.'' This bill consists of the President's DNA initiative, which will expand and improve DNA databases used for criminal investigations and authorize additional funds to clear the backlog of untested DNA evidence in the nation's crime labs.

This bill offers several advantages over another version of the President's proposal that recently was introduced in the Senate. Today's bill gives States greater leeway in the use of DNA grants, removes arbitrary and unnecessary restrictions on the testing of criminal suspects' DNA samples, authorizes additional funds to clear the backlog of non-DNA forensics evidence, and--most importantly avoids tying this critical program to unrelated and highly controversial anti- death penalty legislation. I include in the record at the end of this statement a news story that describes the nature of the state counsel and other extraneous provisions that others have sought to attach to the President's proposal.

The bill that I introduce today is an unencumbered--and unabridged-- version of the President's DNA initiative: the DNA Sexual Assault Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act, which authorize the Debbie Smith DNA Backlog Grant Program and provide $755 million over five years to address the DNA backlog crisis in the nation's crime labs.

Today's bill includes the following improvements over other congressional versions of the President's proposal: First, this bill also expands funding for non-DNA forensics funding. Section 211 of the bill authorizes $100 million in new grant programs to eliminate ``the backlog in the analysis of any area of forensic science evidence, including firearms examination, latent prints, toxicology, controlled substances, forensic pathology, questionable documents, and trace evidence.''

Second, this bill increases the authorization for the Paul Coverdell grant program, in recognition of the fact that this program never has been funded at more than a small fraction of its authorization. Other congressional versions of the President's DNA initiative only authorize decreasing Coverdell funding in the coming years. This bill resets the clock on the Coverdell program, authorizing 2004 funding at the level for 2001, and subsequent years accordingly. This will allow sharp increases in Coverdell funding in the coming years.

Third, today's bill allows states to test DNA samples from convicts seeking exoneration against the national DNA database, in order to determine if the convict has committed other rapes or murders. The other congressional versions of the President's DNA initiative would bar such testing; they effectively would give convicts a free roll of the dice to challenge their current convictions while protecting them against the risk that they will be linked to other crimes. There is no reason why states should be prevented from solving such other crimes. If DNA evidence is good enough to test a prisoner's conviction for the crimes that we do know that he committed, it also is good enough to establish the prisoner's involvement in crimes that we do not yet know that he committed.

Fourth, this bill includes all Federal felony arrestees in the federal DNA database. Other versions of this bill exclude arrestees and place other unnecessary and arbitrary limits on the federal DNA index. The federal government already maintains fingerprints for all federal felony arrestees--there is no reason to treat DNA evidence differently. Nor is there any reason to prevent states and the federal government from solving other crimes committed by suspects arrested for a federal felony offense.

The Department of Justice has expressly informed Congress of the benefits of casting a wide net when including criminal suspects in the federal DNA database. During a July 17 hearing on the President's DNA initiative before the Crime Subcommittee of the House Judiciary Committee, Sarah Hart, the Director of the National Institute of Justice, testified that:

The efficacy of the DNA identification system depends

entirely on the profiles entered into it. Experience

demonstrates that broad collection and indexing of DNA

samples is critical to the effective use of the DNA

technology to solve rapes, murders, and other serious crimes.

The DNA sample that enables law enforcement to identify the

perpetrator of a rape, for example, often was not collected

in connection with an earlier rape. Rather, in a large

proportion of such cases, the sample was taken as a result of

the perpetrator's prior conviction for a non-violent crime

(such as a burglary, theft, or drug offense).

For example, in Virginia, which has authorized the

collection of DNA samples from all felons since 1991, a

review of cases in which offenders were linked to sex crimes

through DNA matching found that almost 40% of the offenders

had no prior convictions for sexual or violent offenses. Most

serious offenders do not confine themselves to violent

crimes. The experience of States with broad DNA collection

regimes demonstrates that DNA databases that include all

felons dramatically increase law enforcement's ability to

solve serious crimes.

Fifth, today's bill tolls the statute of limitations when a perpetrator has been identified through DNA--including in rape cases. Other congressional versions of the President's initiative inexplicably exclude sexual-assault crimes from the initiative's DNA tolling provision. There is no reason to do so. Indeed, it is in sexual-assault cases that DNA evidence is most likely to identify a perpetrator. At the July 17 hearing before the House Judiciary Committee's Crime Subcommittee, the Department of Justice testified in favor of tolling the statute of limitations to the full extent permitted by the Constitution.

Sixth, this bill allows grants for DNA training and research to be made to prosecutors' organizations, universities, and other private entities. Competing bill versions limit such grants to state and local governments, which is inconsistent with the President's DNA initiative.

Finally, the bill that I introduce today does not include the so- called ``Innocence Protection Act'' (IPA), a controversial anti-death penalty bill. The other congressional versions of the President's initiative have incorporated the IPA as a third title to the President's bill. At the July 17 hearing on the President's initiative, the Department of Justice made very clear that it ``do[es] not believe that legislation embodying the important proposals in the President's DNA initiative should be joined to these controversial [IPA] measures, which intrinsically are unrelated to DNA.''

In an October 27 letter to several members of Congress, the National District Attorneys Association also voiced strong objections to the capital-counsel provisions included in the IPA titles of the other bills. The NDAA's letter stated:

Section 321 [of these bills] attempts to re-establish the

old 'death penalty resource centers.' As you no doubt recall,

Congress abolished funding for such centers because they

devolved into organizations dedicated solely to the abolition

of the death penalty and were staffed and controlled by those

dedicated to the disruption of the criminal justice system by

whatever means available, ethical or otherwise. Section 321

would cause a return to such tactics by removing the ability

for the state judiciary to appoint counsel in death penalty

cases and giving that authority to a self-appointed group of

anti-death penalty attorneys.

. . . NDAA strongly urges deletion of Section 321 from this

bill . . . .

Elimination of Section 321 . . . keeps the appointment and

control of capital defense counsel in the hands of state

court judges who are responsible for insuring that defendants

receive quality representation. With Section 321 there is no

oversight of those individuals selected to develop state

standards for capital defense counsel.

The IPA titles included in the other congressional versions of the President's DNA initiative would authorize $500 million in Federal funding for State public defenders in State capital cases. There is no reason for Congress to finance the States' public-defender systems. The States adequately fund these programs themselves--indeed, many have enacted reforms and substantially increased funding for public defenders in recent years. When the IPA originally was introduced in 2000, it was targeted at the State of Texas. In 2001, the Texas legislature enacted reforms that completely overhauled the State's public-defender system. Yet the IPA provisions of the other Senate bill would declare Texas's reforms ``ineffective,'' and would force the State to again replace its indigent-defense system. Such a mandate makes no sense.

Moreover, there is no reason why States cannot or should not fund their own indigent-defender systems. Basic principles of federalism dictate that each level of government should finance its own operations. Once States become accustomed to and budget for Federal funds, they never are able to reject the money (or its conditions) in the future. And Federal funding inevitably comes with increasing Federal strings. In the long run, the States risk losing control over their own public-defender programs. There is no reason to start down this path.

The IPA proposals in the other congressional versions of the President's initiative begin by placing a number of conditions on the states' receipt of federal funds. Among these conditions is that states transfer control over capital defense to an ``entity'' composed of persons with ``demonstrated knowledge and expertise in capital representation.'' (This means private defense lawyers; public prosecutors likely would be barred by their jobs from serving or would be conflicted out.) This new ``entity'' would be charged with: (1) setting standards for capital-defense counsel; (2) deciding which lawyers meet those standards; and (3) appointing lawyers from the roster of qualifying attorneys to represent defendants in particular cases.

Essentially, the bill's new ``entity'' would completely control staffing of the defense in capital cases. From past experience with the ``capital resource centers,'' which were defunded by Congress in 1996, we know that hard-core death penalty opponents tend to gravitate toward these jobs, and will engage in litigation abuse when not supervised. Congress should not require the states to repeat its own past mistakes. It should not place anti-death penalty partisans in charge of public representation of capital defendants.

The other congressional versions of the President's proposal also include these additional highly problematic provisions:

They allow free DNA testing under very low standards. The competing bills provide that DNA tests shall be available to any prisoners if a negative test match would ``raise a reasonable probability that the applicant did not commit the offense.'' This standard is too low. Not all DNA evidence clearly came from the perpetrator of the crime or had anything to do with the crime--for example, a blood spot near the crime scene may or may not have come from the perpetrator. The ``reasonable probability'' standard means a prisoner could secure a test even if, despite a negative match, the other evidence would still show that the prisoner more likely than not committed the crime.

The bill requires only a chance that the prisoner did not commit the crime. Almost every prisoner with material to test will be able to meet this standard. Reopening old cases forces victims and their families to relive the ordeal of the crime. They should not be put through this unless a negative test result could at least show more likely than not that the prisoner did not commit the crime.

During the July 17 hearing before the House Crime Subcommittee, NIJ Director Sarah Hart expressly warned congress of the consequences of applying unduly low DNA testing standards. Director Hart testified:

[W]hile post-conviction DNA testing is necessary to correct

erroneous convictions imposed prior to the ready availability

of DNA technology, experience also points to the need to

ensure that postconviction DNA testing is appropriately

designed so as to benefit actually innocent persons, rather

than actually guilty criminals who wish to game the system or

retaliate against the victims of their crimes. Frequently,

the results of postconviction DNA testing sought by prisoners

confirm guilt, rather than establishing innocence. In such

cases, justice system resources are squandered and the system

has been misused to inflict further harm on the crime victim.

The recent experience of a local jurisdiction is instructive:

``Twice last month, DNA tests at the police crime lab in

St. Louis confirmed the guilt of convicted rapists. Two other

tests, last year and in 2001, also showed the right men were

behind bars for brutal rapes committed a decade or more

earlier.

`` [The St. Louis circuit attorney's] staff spent scores of

hours and thousands of dollars on those tests. She personally

counseled shaking, sobbing victims who were distraught to

learn that their traumas were being aired again.

`` One victim, she said, became suicidal and then vanished;

her family has not heard from her for months. Another, a deaf

elderly woman, grew so despondent that her son has not been

able to tell her the results of the DNA tests. Every time he

raises the issue, she squeezes her eyes shut so that she will

not be able to read his lips.

`` `She finally seemed to have some peace about the rape,

and now she's gone back to being angry,' the woman's son

said.

`` DNA tests confirmed that she was raped by Kenneth

Charron in 1985, when she was 59. To get that confirmation,

however, investigators had to collect a swab of saliva from

her so that they could analyze her DNA. They also had to

inquire about her sexual past, so they could be sure the

semen found in her home was not that of a consensual partner.

`` The questioning sent the woman into such depression that

she's now on medication. `None of this needed to happen,' her

son said. ''

Post-conviction DNA testing is not without its costs. It should be allowed only in carefully measured circumstances.

Another problematic provision in the other congressional versions of the President's DNA initiative would employ an unduly low standard to authorize new trials for very old cases. This provision of these bills is designed to allow new trials for prisoners who may have been convicted 20 or more years ago. But it is very often impossible to retry a case this old--key witnesses die or disappear or their memories simply fade, and other evidence deteriorates or is lost. For many such cases, ordering a new trial effectively means that the prisoner walks free.

Congress should make sure that there is compelling evidence of innocence before ordering new trials in old cases. Unfortunately, these other bills would allow a new trial if test results simply ``establish by a preponderance of the evidence that a new trial would result in an acquittal.'' The key language here is ``result in acquittal.'' It means a test result would not even have to indicate actual innocence; it need only conflict with other evidence of guilt so as to undermine the jury's ability to convict beyond a reasonable doubt. Prisoners could win new trials--and go free--even if, despite the negative DNA match, other evidence still shows the prisoner very likely committed the crime. Current law, Federal Rule 33, uses the liberal ``result in acquittal'' standard to allow new trials based on new evidence, but only within three years of trial. It usually is not difficult to retry a case within three years. But for older cases, Congress should insist on a showing of actual innocence before ordering an often-impossible new trial.

There are other problems with the IPA titles in the various congressional versions of the President's DNA initiative. These titles would vastly expand DNA testing by authorizing tests even for prisoners who pleaded guilty. According to the Department of Justice, 90 percent of Federal prisoners pleaded guilty. Extending free tests to these prisoners literally expands the pool of potential test seekers by an order of magnitude. A guilty plea also means that there is no trial record, which makes it much more difficult to assess the potential relevance of DNA-test evidence.

These other bills also impose broad and potentially costly new evidence-retention requirements on the States--requirements that appear to require States to preserve all potential DNA evidence in all cases, indefinitely. And these bills also would give the newly created capital-counsel ``entities'' an unwarranted degree of control over defense attorneys' budgets. States traditionally have charged courts and other responsible agencies with monitoring budgets for capital representation. Prosecutors do not have unlimited budgets. There is no reason to allow the capital-counsel entity to draw a blank check on State treasuries.

There are other problems with the IPA titles of the competing bills. Suffice it to say that these titles are unrelated to the President's DNA initiative and both the Department of Justice and the NDAA oppose adding them to the President's bill. We should not weigh down the President's DNA initiative with the IPA. For this reason, my colleagues and I today introduce the President's proposal--important, consensus legislation that should be enacted by Congress without delay.

Mr. President, I ask unanimous consent that the text of the bill, the following letter, and the following article all be printed in the Record.

Mr. President, we have 17 dead astronauts on our plate--3 from Apollo I, all preventable; 7 from the Challenger, all preventable; and 7 from the Columbia, all preventable.

What we are trying to do on behalf of myself and these several other Senators is get to a good healthy debate on the future of space in the United States and, more particularly, on correcting the safety features. There is a culture there that prevents safety from being adhered to, and, more than anything else, NASA is broke.

What is not understood is that at the present time we are going in all directions. It is like the Navy during World War II: When in danger, when in doubt, run in circles, scream and shout.

We here are saying we ought to take the orbital space station and accelerate it. Others on the other side say no, that is should be abolished. Some say we ought to go to Mars, and others say what we really need is to hire more expert personnel and bring them in. No one is going to leave their job and come work for the NASA endeavor at this particular time until we get a mixture and a program and a policy. That has to come from the President of the United States.

I introduce the National Space Commission Act to address the range of issues that the Columbia Accident Investigation Board--CAIB--identified with the National Aeronautics and Space Administration--NASA--and our space program in general, following the tragic loss of the Columbia Space Shuttle and its crew of seven astronauts. This bill authorizes the creation of a National Space Commission appointed by the President, to ensure that the safety reforms and recommendations of the Columbia investigation board are fully implemented by NASA. The commission will review and make recommendations regarding NASA's return-to-flight proposals and institutional changes that NASA will need to make to improve safety in the agency and to improve safety of the space shuttle, and other actions to assure future safe transportation to space and to the International Space Station. The commission will also look at the broader question of how the United States is organized for the safety of space flight across civilian, military and commercial sectors. It will begin to build a consensus on a future vision of space exploration that I hope will rekindle enthusiasm for our space program and generate the necessary support in the Congress and the administration for these endeavors.

The Columbia Accident Investigation Board shone a laser-sharp spotlight upon NASA and its program of human space exploration. Their pain-staking work to determine the cause of the loss of the Space Shuttle Columbia provides the context and justification for a new national agenda for space, a turning point in the history of space. Though the board stopped short of laying out this new future, its clear expectation is that the President and Congress should take up where the board left off.

The U.S. civilian space effort has moved forward for more

than 30 years without a guiding vision, and none seems

imminent . . . Recommending the content of this debate goes

well beyond the Board's mandate, but we believe that the

White House, Congress, and NASA should honor the memory of

Columbia's crew by reflecting on the nation's future in space

and the role of new space transportation capabilities in

enabling whatever space goals the nation chooses to pursue.

Columbia Accident Investigation Board Report, Volume I,

August 2003, p. 210

The legislation I am introducing today, the National Space Commission Act, is designed to respond to this challenge. It is a complex challenge, and a complex undertaking, that now lies before the Congress and the Nation. My bill is not intended to supplant, nor substitute for, the President's desire to set a new goal in place for the Human Space Flight Program. But as we have seen in the board's report, merely setting a far-reaching goal into place for

NASA and for the Nation is not enough. It will not resolve the many complex issues raised by Admiral Harold Gehman and the Columbia Accident Investigation Board. No, this report, and these challenges, run deeper than a rousing call for future missions to Mars on the Earth's Moon can resolve. As Admiral Gehman said last week in testimony before the Senate Commerce, Science, and Transportation Committee:

In the course of (our) study, we became convinced how

difficult it is to get into and out of low Earth orbit. It is

extraordinarily dangerous and very difficult to do . . . We

have to do it more safely than 49 out of 50 times, that's not

good enough . . . No matter what your vision is for human

space flight, whether it's Mars or the L2 or the Moon or

whatever it is, it starts in low Earth orbit . . . We need

some leadership to say, ``Just getting into and out of low

Earth orbit is a goal worthy of itself, without killing a lot

of people.'' And that's hard to argue, because it isn't very

jazzy.

Hearing on NASA's Future, October 29, 2003

Since the inception of the human space flight program, seventeen astronauts have lost their lives and all were avoidable. In its investigative work, the Columbia Accident Investigation Board reached several fundamental conclusions that went beyond the specific technical and physical causes of the loss of Columbia. The Columbia Board found basic flaws in how NASA managers behaved, the belief system that lay behind NASA attitudes and behavior, and NASA's understanding of basic technical and organizational requirements of safety.

The attitudes and decision-making of Shuttle Program

managers and engineers during the events leading up to this

accident were clearly overconfident and often bureaucratic in

nature.

Columbia Accident Investigation Board Report, Volume I,

August 2003, p. 177

NASA's bureaucratic culture kept important information from

reaching engineers and managers alike. The same NASA whose

engineers showed initiative and a solid working knowledge of

how to get things done fast had a managerial culture with an

allegiance to bureaucracy and cost-efficiency that squelched

the engineers' efforts. When it came to NASA managers' own

actions, however, a different set of rules prevailed. The

Board found that Mission Management Team decision-making

operated outside the rules even as it held its engineers to a

stifling protocol . . .

Each decision, taken by itself, seemed correct, routine,

and indeed, insignificant and unremarkable. Yet, in

retrospect, the cumulative effect was stunning.

Ibid, p. 202-203

Most troubling to the Board was the fact that these NASA tendencies were not new but existed in full force at the time of both the Challenger and the Columbia Shuttle accidents.

The (Rogers) Commission found that NASA's safety system had

been silent . . . (denoted by) a lack of problem reporting

requirements, inadequate trend analysis, misrepresentation of

criticality, and lack of involvement in critical discussions

. . .

By the eve of the Columbia accident, institutional

practices that were in effect at the time of the Challenger

accident--such as inadequate concern over deviations from

expected performance, a silent safety program, and schedule

pressure--had returned to NASA.

Ibid, p. 100-101

This ``echo'' between the events eighteen years ago and the present made the loss of Columbia and its explanation all the more confounding, because so many who reviewed the agency, its practices, and its culture had sounded an alarm. The fact that these NASA behaviors and beliefs were so enduring that they persisted beyond the stunning loss of the Challenger and her crew was all the more startling to the Columbia Board. So startling, that the Board found it necessary to offer a blunt and chilling assessment.

If these persistent, systemic flaws are not resolved, the

scene is set for another accident.

Ibid, p. 195

The Columbia Accident Investigation Board also found that it was not only NASA that was at fault for the loss of Columbia. Rather, the Board found that the weaknesses at NASA were just as much a result of the Nation's neglect of its human space flight program.

Post-Challenger policy decisions made by the White House,

Congress, and NASA leadership resulted in the agency

reproducing many of the failings identified by the Rogers

Commission. Policy constraints affected the Shuttle Program's

organization culture, its structure, and the structure of its

safety system.

Ibid, p. 197

The impact of this neglect extended beyond NASA's organizational responses, encompassing broad aspects of planning for NASA's future missions and the development of its technology.

There (has been a) lack, over the past three decades, of

any national mandate providing NASA a compelling mission

requiring human presence in space . . . (and a) lack of

sustained government commitment over the past decade to

improving U.S. access to space by developing a second-

generation space transportation system.

Ibid, p. 209

It is the view of the Board that previous attempts to

develop a replacement vehicle for the aging Shuttle represent

a failure of national leadership.

Ibid, p. 211

The bill I am introducing today establishes a permanent National Space Commission to oversee the nation's current and future development and use of space. The commission is established with 12 members, appointed by the President and confirmed by the Senate. Commission members will be leaders chosen from industry, academia, and other professions who have a profound expertise in space flight and safety and have worn the mantle of responsibility and challenge in the development and use of space.

The Commission will be independent of NASA and is authorized to hire a staff to develop the engineering and technical expertise to carry out its work. It will begin its work looking at some of our most vexing current problems raised by the Columbia Board's report and provide the necessary oversight to ensure that the Board's recommendations are implemented in the following areas: (1) the return-to-flight of the Space Shuttle and return to assembling the International Space Station, (2) replacement of the Space Shuttle, and (3) changes to the culture of NASA. We specify a number of detailed questions, criteria, and concerns that the Commission should take up in laying out a near-term path forward for NASA's Human Space Flight program. In making its recommendations, the Commission is directed to consider the safety and dignity of human life as its highest priority.

This specific aspect of the bill is a special clause in my mind, one that is not subject redaction--the United States space flight program must, above all, be an American approach to the future of space flight and, as such, must place the dignity and preservation of human life above all other considerations. This assertion is not meant as an accusation or indictment of NASA--Admiral Gehman made it clear that the fault for the loss of Columbia rests with us all, impressed as we all were with space flight and our accomplishments, and naive about its risks and challenges.

If Shuttle operations came to be viewed as routine, it was,

at least in part, thanks to the skill and dedication of those

involved in the program. They have made it look easy, though

in fact it never was. The Board urges NASA leadership, the

architects of U.S. space policy, and the American people to

adopt a realistic understanding of the risks and rewards of

venturing into space.

Ibid, p.208

For never again should we have to read in a formal accident report of the United States space program:

Managers failed to fulfill the implicit contract to do

whatever is possible to ensure the safety of the crew.

Ibid, p.170

Never again.

In each of these assessments of current issues in NASA's Human Space Flight Program, we intend the commission to provide the President, the Congress, and NASA its informed judgment and advice, so that we can expeditiously return the program to a condition of stability and adopt a NASA culture of safety as soon as possible.

The second aspect of the bill is to set a long-range view of our Nation's participation in and development of space.

Concurrent with the work on current issues at NASA, but due by late 2005, are two ground-breaking studies. These studies are intended to go beyond defining a destination for humans in space and to address broader questions about the goals and methods we use, with a specific concern for public and private utilization and investment in space. Though we have learned that the economics of space flight should never again take precedence over its safety, we also know that, in the past, its cost has driven us down pathways that have not resulted in success.

In all three (Shuttle replacement) projects--National

Aerospace Plane, X-33,

and X-34--national leaders had set ambitious goals in

response to NASA's ambitious proposals. The programs relied

on the invention of revolutionary technology, had run into

major technical problems, and had been denied the funds

needed to overcome these problems--assuming they could be

solved. NASA had spent nearly 15 years and several billion

dollars, and yet had made no meaningful progress toward a

Space Shuttle replacement.

Ibid, p. 111

Continued U.S. leadership in space is an important national

objective. That leadership depends on a willingness to pay

the costs of achieving it.

Ibid, p. 211

First, the commission is chartered to provide a sweeping assessment of the future of space. Included in that assessment is a review of United States capabilities, goals, and uses for space, including the state of our Nation's investment in launch capabilities, how space could benefit State and local governments and regions, and the role of non-governmental, private organizations in the promotion of our space endeavors. The review will also take up the difficult issues related to public and private investment: the role of private institutions in the development and use of space and the business conditions they must meet; how Federal Government programs in space science, exploration, national security, and public safety support or limit the commercial development of space; and how space contributes to the terrestrial economy of the United States.

Given the high cost of space, and the even higher costs of space that the Nation is certain to experience in the near and long-term future, resolution of these questions of private versus public participation and promotion of the development of space is a necessary part of the examination of possible technological and economic futures for the space sector of the economy.

Second, and most importantly, the National Space Commission Act is directed to perform a comprehensive assessment and inventorying of the Nation's programs and practices related to the conduct and safety of space flight. This study will assess the state of the Nation's acceptance, approval, and commercial licensing practices as they relate to the conduct of civil, commercial, and military space flight and explore how space launch and high-risk space operations are conducted across each of these sectors. This study is intended to result in a series of recommendations about the future management of space launch and high-risk orbital and sub-orbital space operations in order to achieve the highest level of safety and management of these risks. To those who question the importance of establishing an authority independent of NASA to assess these provisions, the Columbia Accident Investigation board stated the case most convincingly:

(NASA) cultural norms tend to be fairly resilient . . . The

norms bounce back into shape after being stretched or bent.

Beliefs held in common throughout the organization resist

alteration.

Ibid, p. 101

Within NASA, the cultural impediments to safe and effective

Shuttle operations are real and substantial . . . Leadership

will have to rid the system of practices and patterns that

have been validated simply because they have been around so

long . . . These recommendations will be difficult to

initiate, and they will encounter some degree of

institutional resistance.

Ibid. p. 209

NASA's blind spot is it believes it has a strong safety

culture . . . Twice in NASA history, the agency embarked on a

slippery slope that resulted in catastrophe . . . A safety

team must have equal and independent representation so that

managers are not again lulled into complacency by shifting

definitions of risk.

Ibid, p. 203

Since NASA is an independent agency answerable only to the

White House and Congress, the ultimate responsibility for

enforcement of the recommended corrective actions must reside

with those governmental authorities.

Ibid, p. 209

The National Space Commission is established on a permanent basis to maintain oversight of the implementation of space flight across all sectors of industry and government and vigilance in the management of safety in all United States high-risk space operations.

Let me reiterate. Merely announcing a bold new plan to travel to the Earth's Moon or to Mars is not sufficient. If the loss of the Space Shuttle Columbia merely results in that proposal, we will have failed the memory of our brave astronauts who lost their lives aboard both Challenger and Columbia. And we will have failed our own future. Unfortunately, our current charge is more difficult. We must challenge our assumptions, question our decisions and designs, revisit our approaches, and rethink our Nation's ambitions and goals for space. We must submit ourselves to the discipline to begin anew. The future of space and our Nation's reputation that we carry into history rests in the balance.

I ask unanimous consent that the text of the bill and an article from the New York Times be printed in the Record.

Mr. President, I rise today to introduce legislation intended to restore public trust in mutual funds, the Mutual Fund Transparency Act of 2003. I thank Senator Fitzgerald and Senator Lieberman for cosponsoring my bill. I greatly appreciate the efforts of Senator Fitzgerald to address this issue. Our Financial Management, Budget, and International Security Subcommittee held a very thorough hearing on mutual fund trading abuses on Monday. I applaud the efforts of Representative Richard Baker for his leadership and his efforts to improve mutual fund governance. I also commend the efforts of New York Attorney General Eliot Spitzer and the Secretary of Massachusetts William Galvin for their efforts to pursue individuals that have harmed mutual fund investors.

Mr. President, 95 million people have placed a significant portion of their future financial security into mutual funds. Mutual funds provide middle-income Americans, blue and white collar workers and their families, with an investment vehicle that offers diversification and professional money management. Mutual funds are what average investors rely on for retirement, savings for children's college education, or other financial goals and dreams.

My legislation will bring about structural reform of mutual fund governance and increase disclosures in order to provide useful and relevant information to mutual fund investors. I ask unanimous consent that a letter of support for my bill from the Consumer Federation of America, Fund Democracy, Consumer Action, U.S. Public Interest Research Group, and Consumers Union be printed in the Record.

I also ask unanimous consent that a letter of support for the legislation from AARP be printed in the Record.

Mr. President, recent revelations of widespread market- timing and late-trading abuses demonstrate the failures of mutual fund boards of directors to fulfill their fiduciary obligations to shareholders. The activities of Canary Capital Partners and Putnam Investments are two deeply troubling examples. However, it is likely that the trading abuses are much more routine. At our hearing, Mr. Stephen Cutler, Director, Division of Enforcement, Securities and Exchange Commission, SEC, testified that preliminary results of an SEC survey show that about ``50 percent of responding fund groups appear to have one or more arrangements with certain shareholders that allow these shareholders to engage in market timing.'' This statistic is just one example of mutual funds having different sets of rules for large and small investors. These differing rules allow the larger investors to profit at the expense of average, ordinary investors who are working toward their long-term financial goals.

The abuses that have been brought to our attention make it clear that the boards of mutual fund companies are not providing sufficient oversight. To be more effective, the boards must be strengthened and more independent. Investment company boards should be required to have an independent chairman, and independent directors must have a dominant presence on the board. My bill strengthens the definition of who is considered to be an independent director. It also requires that mutual fund company boards have 75 percent of their members considered to be independent. To be considered independent, shareholders would have to approve them. My legislation also prohibits the board from making decisions that require a vote of a non-independent director. In addition, a committee of independent members would be responsible for nominating members and adopting qualification standards for board membership. These steps are necessary to add much needed protections to strengthen the ability of mutual fund boards to detect and prevent abuses of the trust of shareholders.

In addition, this bill requires the SEC to develop rules to disclose the compensation of individuals employed by the investment advisor of the company to manage the portfolio of the company and their ownership interest in the company. Consumers deserve to know relevant information about the portfolio manager's incentives and whether they are properly aligned with those of their shareholders. Again, I am referring to ordinary American families patiently working toward their long-term financial goals.

The strengthening of boards to protect shareholders is only one important aspect of my bill. My bill will also increase the transparency of often complex financial relationships between brokers and mutual funds in ways that are meaningful and easy to understand for investors.

Shelf-space payments and revenue-sharing agreements between mutual fund companies and brokers present conflicts of interest that must be addressed. Brokers also compile preferred lists which highlight certain funds, which typically generate more investment than those left off the list. It is not clear to investors that the mutual fund company also may pay a percentage of sales and/or an annual fee on the fund assets held by the broker to obtain a place on the preferred list or to have their shares sold by the broker.

Shelf-space and revenue sharing agreements present risk to investors. Brokers have conflicts of interest, some of which are unavoidable, but these need to be disclosed to investors. Without such disclosure, investors cannot make informed financial decisions. Investors may believe that brokers are recommending funds based on the expectation for solid returns or low volatility, but the broker's recommendation may be influenced by hidden payments.

The SEC has exempted mutual funds from Rule 10b-10, which requires that confirmation notices of securities transactions be sent to customers to indicate how the broker was compensated in the trade. Mutual funds should be subject to this confirmation notice requirement. My legislation will require brokers to disclose in writing, to those who purchase mutual fund company shares, the amount of compensation the broker will receive due to the transaction, instead of simply providing a prospectus. The prospectus fails to include the detailed relevant information that investors need to make informed decisions. Mutual fund investors deserve to know how their broker is being paid.

My bill also will inject a measure of reality into the expenses of mutual funds. In order to increase the transparency of the actual costs of the fund, brokerage commissions must be counted as an expense in filings with the SEC and included in the calculation of the expense ratio, so that investors will have a more realistic view of the expenses of their fund. Consumers often compare the expense ratios of funds when making investment decisions. However, the expense ratios fail to take into account the costs of commissions in the purchase and sale of securities. Therefore, investors are not provided with an accurate idea of the expenses involved. Currently, brokerage commissions have to be disclosed to the SEC, but not to individual investors. Brokerage commissions are only disclosed to the investor upon request. My bill puts teeth into brokerage commission disclosure provisions and ensures that commissions will be included in a document that investors actually have access to and utilize.

This bill also creates a powerful incentive to reduce the use of soft dollars. Soft dollars refer to the bundling of services or products into commissions. Mutual fund companies often pay higher commissions in order to obtain other products and services, typically research on stocks. Soft dollars can be used to lower their expenses by having services and products paid for by soft dollars. Purchases using soft dollars do not count as expenses and are not calculated into the expense ratio. The SEC released a study in September 1998 concluding that soft dollars were used to pay for research, salaries, office rent, telephone services, legal expenses, and entertainment, among other expenses.

At the hearing, Secretary Galvin called for a prohibition of soft dollars. This is a recommendation that needs to be examined. However, my bill provides an immediate alternative, which is to provide an incentive for funds to limit their use of soft dollars by calculating them as expenses. If commissions are disclosed in this manner, the use of soft dollars will be reflected in the higher commission fees and overall expenses. This will make it easier for investors to see the true cost of the fund and compare the expense ratios of funds.

Some may argue that this gives an incomplete picture and fails to account for spreads, market impact, and opportunity costs. However, the SEC has the authority to address the issue further if it can determine an effective way to quantify these additional factors. This bill does not impose an additional reporting requirement that would be burdensome to brokers. It merely uses what is already reported and presents this information in a manner meaningful to investors.

My legislation also directs the SEC to conduct a study to assess financial literacy among mutual fund investors. The SEC will identify the most useful and relevant information that investors need prior to purchasing shares, methods to increase the transparency of expenses and potential conflicts of interest in mutual fund transactions, and a strategy to increase the financial literacy of investors that results in positive change in investor behavior. None of our disclosure provisions will truly work unless investors are effectively given the tools they need to make smart investment decisions.

Finally, my bill requires the General Accounting Office, GAO, to study the current marketing practices for the sale of shares of mutual funds. GAO will provide recommendations to improve investor protections in mutual fund advertising to ensure that investors are able make informed financial decisions when purchasing shares.

Public confidence in mutual funds will not recover if funds continue to employ different sets of rules for large and small investors, engage in ethical misconduct, and enrich themselves at the expense of shareholders. The transgressions brought to light underscore the absence of effective oversight by the boards of mutual funds companies. This legislation will strengthen board independence and enhance the transparency of financial relationships. The American investing public deserves nothing less.

Mr. President, I look forward to working with my colleagues in enacting meaningful reform of the troubled mutual fund industry. We must act to restore trust in this critical investment vehicle that people rely on for their financial future and goals. I ask unanimous consent that the text of the Mutual Fund Transparency Act of 2003 be printed in the Record.