YOU WOULDN'T think that what's left of Sen. Patrick J. Leahy's Innocence Protection Act could spark much controversy. A few years ago, when Mr. Leahy started pushing legislation to encourage post-conviction DNA testing at the state and federal level and improve the woeful quality of counsel in death penalty cases, the measure had real teeth. Now, however, compromise upon compromise has left the Innocence Protection Act, which has been merged with a bipartisan package with President Bush's initiative to reduce the backlog of physical evidence awaiting DNA testing, a shadow of its former self. The House passed the DNA legislation by a lopsided vote, 357 to 67, last year. Yet the Bush administration continues to oppose the Innocence Protection Act, and last week the Senate Judiciary Committee's conservative members, led by Sen. Jon Kyl (R-Ariz.), managed to stall the larger bill of which it is a part, the Advancing Justice Through DNA Technology Act. Though the committee is scheduled to continue marking up that bill today, and though it would clearly command majority support in the full Senate, it is far from clear that the bill will ultimately get to a vote.
The bill does little that shouldn't be a matter of consensus. It would make sure that physical evidence in federal cases is preserved and made available for post-conviction testing and law enforcement purposes. To encourage states that do not already facilitate such testing, the bill would tie some of the grant money it authorizes to the adoption of reasonable rules. It would also use grant money to try to improve the quality of counsel, authorizing as much as $100 million a year for five years to support capital defense and prosecution. States that accept this money would be bound by federal standards and subject to review by the Justice Department's inspector general -- except that certain states, notably Texas, would be bound to follow only new state-level reforms enacted by their legislatures. These changes are well worth enacting, but the bill does not force states to reform; even if the bill is fully funded it will, at most, bribe states to make revisions.
It is a reflection of a sorry political reality that this is the best that Congress can do by way of protecting innocent people from wrongful conviction and execution. But given all of the people who have been freed from death row or long prison sentences based on DNA evidence of their innocence, it is hard to imagine that anyone -- let alone the Justice Department -- can still oppose offering states money to make post-conviction testing easier and trial counsel better.