Testimony of Alabama Attorney General Bill Pryor
on the
Proposed Innocence Protection Act of 2001

Mr. Chairman and Members of the Committee:

Thank you for inviting me to comment on the problems posed by S. 486, which has been referred to as the Innocence Protection Act of 2001. As the Attorney General of Alabama, my office defends the death sentences in capital murder cases in all direct appeals, state post-conviction proceedings, and federal habeas corpus proceedings. My office also occasionally prosecutes capital murder charges at the trial level. In my four and a half years as attorney general, ten capital murderers have been executed after pursuing an average of 16 years and 5 months of appeals and other post-conviction proceedings. Our process is much longer and involves more levels of review than the relatively speedy execution of Timothy McVeigh.

My concerns about the legislation before you are that it would lengthen and complicate an already Byzantine system, create perverse incentives for the criminal justice systems of each state, and harm the real innocents in this process. The real innocents, of course, are the families of victims of capital murderers and the future victims of those murderers who either escape justice or are not deterred by a system that fails to punish swiftly and adequately the most heinous crimes in our society. If your concern is to protect the innocent from being executed, then you need not worry; it is not occurring and is highly unlikely to occur. As Professor Paul Cassell of the University of Utah School of Law has stated, "The death penalty system in America is the most accurate criminal sanction in the world." Marcia Coyle, 66% Error Rate Found In Death Case Study: Author Calls Serious Problems "Epidemic," Nat'l L.J., June 19, 2000, at A1 (col.2).

Consider first how this legislation would cause unreasonable delays and complications. Section 201 would shift the appointment of defense lawyers in capital cases from the independent judges of the state to a so-called independent appointing authority. The evaluation of fitness to practice as defense counsel in capital cases would shift from the State Bar and courts to the independent appointing authority. I am concerned that this authority might be captured and staffed by attorneys who favor the abolition of capital punishment and, therefore, are not independent.

It is unreasonable and contrary to basic constitutional principles of federalism to expect that an independent authority would be more objective, balanced, and diligent than the judges of the state courts who now appoint counsel in capital cases. Judges are independent. For that matter, so are prosecutors whose ethical duty, in contrast with defense attorneys, is to pursue the truth and justice. A group of anti-death penalty lawyers would have many incentives to set the performance standards and qualifications of attorneys on their roster unreasonably high so that few lawyers would be placed on their roster. This perverse incentive would then mean that indigents who face capital murder charges would not have competent counsel for trial. The system created by this legislation could become a self-fulfilling prophecy where capital murder trials come to an abrupt end because of an alleged lack of competent counsel.

Moreover, this legislation could empower attorneys who favor the abolition of capital punishment to inflict real harm on the corrections system of each state. Under the guise of serving as the independent appointing authority, these attorneys could ensure that each state that administers capital punishment fails to meet the standards set by the attorneys and, as a result, the state loses federal funds for its prisons. States that desire to forego the burdens of this legislation would also have to forego the benefits of federal funds for the prisons of that state, which many states would do to the detriment of inmates, the vast majority of whom are not on death row, and victims of criminals who could be released from prison. In my state, the amount of federal funds at stake this year is $1,389,635.

Finally, this legislation would create incentives for states to abolish post-conviction proceedings for capital murderers. Currently, under the Anti-Terrorism and Effective Death Penalty Act of 1996, states with post-conviction proceedings receive deference for the determinations made by their courts in respect of fundamental principles of federalism. By removing the benefits of AEDPA, this legislation would offer the states no incentive to maintain post-conviction proceedings, which are not required by the U.S. Constitution. With the elimination of these proceedings, after a trial and direct appeal, an inmate on death row would have access only to federal courts in habeas corpus proceedings as a process for review of his death sentence. This disincentive for access to state post-conviction proceedings runs directly contrary to the entire purpose and rationale for AEDPA. In 1996, Congress wisely concluded that the federal process for review of death sentences should accord deference to state courts and be streamlined to make capital punishment a more effective deterrent of heinous crimes and a better system of justice for the innocent families of victims of capital murder.

The entire rationale for the competency requirements in this legislation is flawed. After many years of review, capital murderers are executed because they are guilty, not because their counsel is incompetent. Take, for example, in my state, the case of Phillip Wayne Tomlin, who last year was tried by prosecutors in my office, convicted, and sentenced to death for the fourth time for the murders of 19 year old Ricky Brune and 15 year old Cheryl Moore on January 1, 1977. None of the reversals of his first three convictions was related to competency of defense counsel. He received a death sentence for the fourth time even though he was represented by Stephen Bright, who is testifying today because of his expertise as a defense lawyer and opponent of capital punishment.

I will also make available to you written remarks that I gave last year to the Board of Bar Commissioners of the Alabama State Bar to defend our system of capital punishment against charges of unfairness and the alleged risk of executing an innocent person.

Thank you again for this opportunity and I look forward to answering any questions you may have about this matter.