Before I begin, I would just like to say how much I appreciate the Chairman’s leadership on this important issue. He has worked tirelessly, both in the Senate and in the media, to raise public awareness on this important topic, and I want to commend him for his hard work.

The death penalty is an issue that engenders great passion, both among its supporters and among in its opponents. There are those among us who sincerely believe that the power of the state simply should never, under any circumstances, be used to put someone to death. There are others who believe that some crimes are simply so heinous, so evil, that there is no punishment, short of death, that will adequately express the outrage of our society at the perpetrator of such a crime.

Each of us must make our own decision on this issue as a matter of personal conscience.

There can be no question, however, that the imposition of the death penalty is an awesome power. And with that awesome power comes a solemn responsibility – a responsibility to ensure that the death penalty is imposed only on those criminals who are truly guilty of these horrible crimes, and only on those criminals who have had the benefit of all the procedural protections provided by our centuries-old system of justice.

It is incumbent on us in the federal government, as well as in the states themselves, to remain eternally vigilant to ensure that our system of administering the death penalty is completely fair and respectful of the rights of the accused.

In this vein, I believe it is important to acknowledge the study that was recently completed by the United States Department of Justice, which revealed no racial bias in the administration of the death penalty by the federal government. That important study, which found that a minority defendant was actually slightly less likely to be subject to the death penalty when facing a capital charge, has helped to alleviate the concern that death penalty is being implemented in a racially biased fashion. The study reaffirmed the preliminary conclusion reached late last year by Janet Reno’s Justice Department.

The concern that is the subject of today’s hearing is equally important – whether capital defendants are being systematically deprived of their right to competent counsel.

Obviously, we can only have confidence in our criminal justice system if every defendant, whether they are charged with a capital crime, or even a simple misdemeanor, has the benefit of representation by an able attorney.

Today’s hearing is not about whether defendants charged with capital crimes are entitled to competent counsel. The right to a competent attorney is already guaranteed by the Sixth Amendment of the United States Constitution, and by innumerable decisions of the United States Supreme Court.

A defendant who does not feel that he has received adequate legal representation has numerous avenues of relief. The defendant may raise his concern to the trial judge prior to, or after, the trial. If convicted, the defendant may raise on appeal a claim of ineffective assistance of counsel. If his appeal is denied, the defendant may challenge his conviction in federal court on a writ of habeas corpus. If the writ is denied, the defendant may appeal that decision, and if that appeal is denied, the defendant may bring his case all the way to the United States Supreme Court.

Thus, at an absolute minimum, a defendant has an opportunity to persuade five different courts that he has received ineffective assistance of counsel. Five different courts have an obligation of ensuring that the defendant’s attorney has provided competent representation.

Is the system working? Some would say that it is not. Such people point to several highly publicized instances in which a capital defendant has not received the effective assistance of counsel. We have all heard the horror stories of the attorney who fell asleep during his client’s trial, and the attorney who showed up for trial intoxicated.

Some opponents of the death penalty seek to portray these stories as "par for the course." This view ignores the hundreds of capital cases in which no flaw was found in the quality of the legal representation. It also ignores the hundreds of capital cases in which defendants were either acquitted, or sentenced to a penalty less than death, due, at least in part, to the vigorous efforts of their able attorneys.

Far more often than not, a capital defendant is represented by multiple outstanding lawyers. Some of this nation’s finest legal talent is attracted to the challenging, high stakes arena of capital case defense. As several of today’s witnesses will testify, the prosecution team in a capital case often finds itself overwhelmed by defense teams funded by a combination of public and private sources.

More importantly, what opponents of the death penalty would have us ignore is that those defendants represented by sleeping or intoxicated attorneys – or attorneys who fall below the level of acceptable lawyering for whatever reason – routinely have their convictions overturned, either on appeal, or on habeas corpus review. Make no mistake – it is completely unacceptable for any criminal defendant to be represented by a sleeping or intoxicated attorney. But as unfortunate as these rare cases are, they do demonstrate unequivocally that the appellate system, and our system for habeas review, remain robust and entirely capable of identifying and rectifying instances of deficient legal representation.

Currently, each of the states that chooses to implement the death penalty has different qualifications for attorneys assigned to represent defendants in capital cases. This makes sense, given the differing number of criminal lawyers in various jurisdictions, the differing frequency that the death penalty is sought from state to state, and the differing systems that the states have established for assigning lawyers to indigent defendants.

Obviously, a rural jurisdiction, with few lawyers, in a state that requests the death penalty relatively infrequently, will have different requirements for capital case attorneys than those of an urban jurisdiction, with many criminal lawyers, in a state that seeks the death penalty more often.

Whatever method a state uses to appoint capital case attorneys, the standard for their performance is exactly the same from state to state. An attorney must provide effective assistance of counsel as defined by the United States Supreme Court.

The legislation that is the subject of this hearing would seek to paper over the differences between the states and to create a one-size-fits-all national standard for capital case attorneys. Even if I believed this was a good idea, and I do not, I cannot see how it would address the supposed problems in capital case representation that are trumpeted by the opponents of the death penalty.

No legislative scheme we enact will be able to predict, prior to trial, whether a particular lawyer will fall asleep during trial, or whether he will develop a problem with alcoholism. That is why our current system is designed the way that it is – to evaluate after the trial whether a lawyer has provided competent representation to his or her client.

Capital representation standards already exist in nearly every state that has implemented the death penalty. There has been a recent movement in many states to make such standards more exacting. Yet incompetent attorneys still slip through the cracks. Regardless of their good intentions, capital representation standards simply cannot ensure that every defendant will receive competent representation. That assurance will continue to be provided, as it is now, by the appellate process, and by the system for habeas corpus review.

My concern is that the only group likely to benefit from the legislation we are discussing today are those individuals intent on eliminating the death penalty altogether. Capital representation standards could easily be written so that many isolated jurisdictions would have no attorneys judged capable of handling death penalty cases.

A system already renowned for its glacial pace would experience further massive delays as the few death-penalty-eligible attorneys are rationed out among competing jurisdictions.

As I said at the beginning of this statement, the death penalty is a subject that engenders great passion. Although a substantial majority of the American public remains solidly in favor of the death penalty, there is a vocal minority that is passionately opposed to the imposition of the death penalty under any circumstances.

I fear that the adoption of national capital representation standards, although undoubtedly well-intentioned, would provide a mechanism for those who would thwart the will of the majority of American citizens, and achieve what the minority failed to achieve at the ballot box – the complete evisceration of the death penalty.

While it is true that a small proportion of capital defendants do not currently receive effective assistance of counsel, it is also true that in these rare cases, the convictions do not withstand appellate and collateral review. If national capital representation standards are established, the situation will not be changed – there will still be a small proportion of capital defendants who do not receive effective assistance of counsel. What will be changed, is that opponents of the death penalty will be handed yet another procedural tool with which to manufacture delay.

Mr. Chairman, I share your concern that the innocent must be protected. It is intolerable for even one innocent person to reside on death row, much less, God forbid, that an innocent person ever be executed.

We have reached substantial agreement on some important reforms that would go a long way towards protecting the innocent. We agree that potentially exculpatory DNA testing must be provided to inmates on death row who did not have access to such testing at the time of their trial. We agree that the nation’s forensic laboratories must receive increased funding to enable them to process evidence more expeditiously, leading to exoneration for some defendants and, in some cases, to the arrest of the actual perpetrator. We agree that increased funds must be provided for the treatment and prevention of drug abuse, to break the cycle of addiction which underlies many of these violent crimes. And with respect to capital representation standards, I have no problem with the federal government providing the states with financial assistance, available on a voluntary basis, to ensure competent counsel at trial.

With all due respect, Mr. Chairman, I cannot support the provisions that are the subject of today’s hearing. The provisions are harmful to the efficient administration of justice; they are harmful to the rights of the states to order their own affairs; and above all, they are harmful to the victims, and their families, who are entitled to a fair and speedy justice being meted out to the perpetrators of these heinous crimes.

Mr. Chairman, I want again to acknowledge your outstanding leadership on this issue. We are in complete agreement as to the goal for which we must be striving: that our criminal justice system operate fairly and efficiently, and that no innocent person be wrongfully convicted. I hope that we will be able to continue to work together on this important issue.

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