As governor of Texas, George W. Bush presided over 152 executions, more than any governor in any state in modern U.S. history. He commuted just one capital sentence and harbored no doubts in the system. "I'm confident we have not put to death anyone who has been innocent," he once said.
So it came as a bit of a surprise to some Wednesday night when in his State of the Union address President Bush expressed concern about wrongful convictions, advocated the expanded use of DNA evidence to protect the innocent and offered new training for defense lawyers in capital cases to avert fatal mistakes.
"Because one of the main sources of our national unity is our belief in equal justice, we need to make sure Americans of all races and backgrounds have confidence in the system that provides justice. In America, we must make doubly sure no person is held to account for a crime he or she did not commit," Bush said, adding that "people on trial for their lives must have competent lawyers by their side."
The three sentences in the speech were the culmination of a complicated behind-the-scenes story, a classic tale of Washington maneuvering in which different sides with different priorities found what one congressional aide called a "harmonic convergence" of interests to advance new policy. For Bush, it started as a bid mainly to assist police and prosecutors, and evolved into a broader effort that put him in the counterintuitive position of providing help for death row lawyers fighting a system over which he once presided.
"The president really is calling for us to strengthen our confidence in our criminal justice system, making sure that it's fair and accurate in terms of imposing penalties on criminals who come before the system," said a senior administration official who briefed reporters on the State of the Union address yesterday on the condition of anonymity. "As we have seen in some cases that have been highlighted around the country, there have been concerns about effective assistance of counsel."
Some legislative aides and advocates who work on the issue, though, found it ironic that Bush embraced the cause of the wrongfully convicted, noting that his appointees at the Justice Department for months had resisted proposals addressing the problem.
"If this is a product of the intensity of their religious beliefs, then this act of redemption is much appreciated by all of us who spend our careers correcting miscarriages of justice and freeing innocent people from death row," said Peter J. Neufeld, co-founder of the Innocence Project, an organization that promotes the use of DNA testing to release wrongly convicted prisoners.
Advocates for the accused said that perhaps Bush's thinking has evolved since his Texas governorship because of widespread problems in Illinois, which led to a death penalty moratorium, and the lobbying of people such as Kirk Bloodsworth, who spent nine years on Maryland's death row for a murder he did not commit. "Maybe some of that's coming to his realization," said Richard C. Dieter, executive director of the Death Penalty Information Center, a research organization. "Everybody can change."
The story behind last night's initiative started nearly five years ago when Sen. Patrick J. Leahy (D-Vt.) proposed an Innocence Protection Act to expand access to DNA testing for criminals, but it stalled. In March 2003, Bush proposed a DNA initiative intended to clear away a backlog of hundreds of thousands of rape kits left unexamined by overloaded labs, hindering prosecutions.
Eventually, House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) decided to combine the ideas to make them more palatable to both the right and the left. After GOP senators blocked the newly combined bill, Sensenbrenner added yet another measure outlining new rights for crime victims. The final product, the Justice for All Act, sailed through both houses in October and was signed by Bush the weekend before the election. "It just wasn't politically popular to fund post-conviction DNA testing," said Jack King of the National Association of Criminal Defense Lawyers. "The way it was made palatable was to put money in there for law enforcement."
Bush's State of the Union proposal would provide $236 million next year and $1 billion over five years to expand DNA testing capacity. It would also furnish $20 million next year and $50 million over three years for additional training for lawyers in death penalty trials.
In his speech, Bush characterized the proposal in terms of protecting the innocent. The DNA initiative, he said, is meant "to prevent wrongful conviction," while the training would go to "defense counsel in capital cases." A fact sheet released later by the White House also emphasized the "elimination of existing backlog of DNA samples" and said that training would be provided to prosecutors and judges as well.