Innocence Protection Act
Summary: The Innocence Protection Act ensures that all convicted persons have access to forensic testing that could prove their innocence.
SECTION 1. SHORT TITLE
This Act shall be called the “Innocence Protection Act.”
SECTION 2. FINDINGS AND PURPOSE
(A) FINDINGS—The legislature finds that:
1. Deoxyribonucleic acid (DNA) testing has emerged as the most reliable forensic technique for identifying criminals when biological materials are left at a crime scene. Because of its scientific precision, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant. In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value to a judge or jury.
2. While DNA testing is increasingly commonplace in pretrial investigations today, it was not widely available in cases tried prior to 1994. Moreover, new forensic DNA testing procedures have made it possible to obtain results from minute samples that could not previously be tested, and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce. Consequently, convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results.
3. In the past decade, there have been more than 100 post-conviction exonerations in the United States based upon DNA testing.
4. In at least 14 cases, post-conviction DNA testing that exonerated a wrongly convicted person also provided evidence that led to the apprehension of the actual perpetrator, thereby enhancing public safety.
(B) PURPOSE—This law is enacted by the legislature to protect public safety and guarantee the right of persons wrongfully convicted of crimes to prove their innocence.
SECTION 3. DNA TESTING
After section XXX, the following new section XXX shall be inserted:
(A) DEFINITION—In this section, the term “biological evidence” means the contents of a sexual assault examination kit and any item that contains blood, semen, hair, saliva, skin tissue, or other identifiable biological material, whether that material is catalogued separately (for example, on a slide, swab, or in a test tube) or is present on other evidence, including but not limited to clothing, ligatures, bedding or other household material, drinking cups, or cigarettes.
(B) PETITION FOR POST-CONVICTION DNA TESTING—A person convicted of a crime may at any time file a petition that requests the forensic DNA (deoxyribonucleic acid) testing of any evidence that was secured in relation to the investigation or prosecution that resulted in the judgment of conviction, and that may contain biological evidence. The petitioner shall serve a copy of such petition upon the attorney for the State. The State shall file its response within 30 days of the receipt of service. The court shall hear the petition no later than 90 days after it is filed.
(C) ORDER FOR POST-CONVICTION DNA TESTING—The court shall order DNA testing if it finds that:
1. A reasonable probability exists that the petitioner would not have been convicted, or would have received a lesser sentence, if favorable results had been obtained through DNA testing at the time of the original prosecution;
2. One or more of the items of evidence that the petitioner seeks to have tested is still in existence;
3. The evidence to be tested was secured in relation to the offense that is the basis of the challenged conviction, and was not previously subjected to DNA testing or can be subjected to additional DNA testing that provides a reasonable likelihood of more probative results;
4. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence. Evidence that has been in the custody of law enforcement, other government officials, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subsection, absent specific evidence of material tampering, replacement, or alteration; and
5. The application for testing is made for the purpose of demonstrating innocence or the appropriateness of a lesser sentence, and not to unreasonably delay the execution of sentence or the administration of justice.
(D) COUNSEL
1. The court may, at any time, appoint counsel for an indigent petitioner.
2. If the petitioner has filed pro se, the court shall appoint counsel upon a showing that DNA testing may be material to the petitioner’s claim of wrongful conviction.
3. The court, in its discretion, may refer pro se requests for DNA testing to qualified parties for further review, including, but not limited to, indigent defense organizations or clinical legal education programs, without appointing the parties as counsel at that time.
4. If the petitioner has retained private pro bono counsel (including, but not limited to, counsel from a nonprofit organization that represents indigent persons), the court may, in its discretion, award reasonable attorney’s fees and costs at the conclusion of the litigation.
(E) DISCOVERY
1. At any time after a petition has been filed, the court may order the State to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case, or otherwise assist the petitioner in locating items of biological evidence that the State contends have been lost or destroyed. The court may further order the State to take reasonable measures to locate biological evidence that may be in its custody, or to assist the petitioner in locating evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.
2. If evidence was previously subjected to DNA testing, the court may order production of laboratory reports prepared in connection with the DNA testing, as well as the underlying data, and the laboratory notes.
3. If any DNA or other biological evidence testing was previously conducted by either the prosecution or defense without knowledge of the other party, such testing shall be revealed in the motion for testing or response, if any.
4. If the court orders DNA testing in connection with this section, the court shall order the production of any laboratory reports prepared in connection with the DNA testing, and may in its discretion order production of the underlying data, bench notes, or other laboratory notes.
5. The results of any post-conviction DNA testing conducted pursuant to this section shall be disclosed to the prosecution, the petitioner, and the court.
(F) PRESERVATION OF EVIDENCE
1. All appropriate governmental entities shall retain all items of physical evidence that contain biological material which is secured in connection with a criminal case for the period of time that any person remains incarcerated, on probation or parole, civilly committed, or subject to registration as a sex offender in connection with that case. This requirement shall apply with or without the filing of a petition for post-conviction DNA testing, as well as during the pendency of proceedings under this section.
2. In cases where a petition for post-conviction DNA testing has been filed under this section, the State shall prepare an inventory of the evidence related to the case and submit a copy of the inventory to the defense and the court.
3. If evidence is intentionally destroyed after the filing of a petition under this section, the court shall impose appropriate sanctions on the responsible party or parties.
(G) CHOICE OF LABORATORY—If the court orders DNA testing, such testing shall be conducted by a facility mutually agreed upon by the petitioner and by the State and approved by the court. If the parties are unable to agree, the court shall designate the testing facility and provide parties with a reasonable opportunity to be heard on the issue of choice of laboratory. The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process.
(H) PAYMENT FOR TESTING—If DNA testing under this section is performed at a state or county crime laboratory, the State shall bear the costs of such testing. If testing is performed at a private laboratory, the court may require either the petitioner or the State to pay for the testing, as the interests of justice require. If the state or county crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the State shall bear the costs of testing at a private laboratory which does have such capabilities.
(I) APPEAL—The petitioner shall have the right to appeal a decision denying post-conviction DNA testing.
(J) SUCCESSIVE PETITIONS—If the petitioner has filed a prior petition for DNA testing, the petitioner may file, and the court shall adjudicate, a successive petition or petitions under this section provided the petitioner asserts new or different grounds for relief, including, but not limited to, factual, scientific, or legal arguments not previously presented, or the availability of more advanced DNA technology. The court may also, in its discretion, adjudicate any successive petition if the interests of justice so require.
(K) ADDITIONAL ORDERS
1. The court may in its discretion make such other orders as may be appropriate. This includes, but is not limited to, designating:
a. The type of DNA analysis to be used;
b. The testing procedures to be followed;
c. The preservation of some portion of the sample for replicating the testing;
d. Additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis; and
e. The collection and DNA testing of elimination samples from third parties.
2. DNA profile information from biological samples taken from any person pursuant to a motion for post-conviction DNA testing shall be exempt from any law that requires disclosure of information to the public.
(L) PROCEDURE AFTER TESTING RESULTS ARE OBTAINED
1. If the results of forensic DNA testing are favorable to the petitioner, the court shall schedule a hearing to determine the appropriate relief to be granted. Based on the results of the testing and any evidence or other matter presented at the hearing, the court shall thereafter enter any order that serves the interests of justice, including an order:
a. Setting aside or vacating the petitioner’s judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency;
b. Granting the petitioner a new trial or fact-finding hearing;
c. Granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing;
d. Discharging the petitioner from custody;
e. Specifying the disposition of any evidence that remains after the completion of the testing;
f. Granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including, but not limited to, documents that pertain to the original criminal investigation, or the identities of other suspects; and
e. Directing the State to place any unidentified DNA profile obtained from post-conviction DNA testing into state and federal databases.
2. If the results of the tests are not favorable to the petitioner, the court shall dismiss the petition and may make any further orders that are appropriate, including an order:
a. Providing that the parole board or a probation department be notified of the test results.
b. Requesting that the petitioner’s DNA profile be added to the State’s convicted felons database.
(M) CONSENT—Nothing in this section shall be interpreted to prohibit a convicted person and the State from consenting to and conducting post-conviction DNA testing by agreement of the parties and without filing a petition for post-conviction DNA testing. If DNA test results obtained under testing conducted by consent of the parties are favorable to the petitioner, the petitioner may file, and the court shall adjudicate, a motion for post-conviction relief based on the DNA test results under this section.
SECTION 4. EFFECTIVE DATE
This Act shall take effect on July 1, 2006.
Death Penalty Moratorium Act
Summary: The Death Penalty Moratorium Act temporarily suspends use of the death penalty while a commission studies its fairness.
SECTION 1. SHORT TITLE
This Act shall be called the “Death Penalty Moratorium Act.”
SECTION 2. FINDINGS AND PURPOSE
(A) FINDINGS—The legislature finds that:
1. The administration of the death penalty should be consistent with the state’s fundamental principles of justice, equality and due process.
2. The fairness of the administration of the death penalty has recently come under serious scrutiny, specifically raising questions of racial disparity [details specific to your state here].
(B) PURPOSE—This law is enacted by the legislature to ensure fairness in the operation of the state’s death penalty and guarantee that innocent persons are not put to death.
SECTION 3. DEATH PENALTY MORATORIUM
The state shall not carry out any sentence of death imposed under state law until the legislature considers the final findings and recommendations of the Commission on the Death Penalty in the report submitted under section 4, and enacts legislation that repeals this section and implements or rejects the guidelines and procedures recommended by the Commission.
SECTION 4. COMMISSION ON THE DEATH PENALTY
(A) ESTABLISHMENT—There is established a commission to be known as the Commission on the Death Penalty (in this title referred to as the “Commission”).
(B) MEMBERSHIP
1. Members of the Commission shall be appointed by the Governor in consultation with the President of the Senate and the Speaker of the House.
2. The Commission shall be composed of 15 members, of whom:
a. Three members shall be state prosecutors.
b. Three members shall be attorneys experienced in capital defense.
c. Two members shall be current or former state judges.
d. Two members shall be current or former state law enforcement officials.
e. Five members shall be individuals from the public or private sector who have knowledge or expertise, whether by experience or training, in matters to be studied by the Commission, which may include:
(i) Officers or employees of the state or local governments.
(ii) Members of academia, nonprofit organizations, the religious community, or business.
(iii) Other interested individuals.
3. In appointing the members of the Commission, the Governor shall, to the maximum extent practicable, ensure that the membership of the Commission is fairly balanced with respect to the opinions of the members of the Commission regarding support for or opposition to the use of the death penalty.
4. The appointments of the initial members of the Commission shall be made not later than 30 days after the date of enactment of this Act.
5. The Governor shall designate one member appointed under subsection (B)(1) to serve as the Chair of the Commission.
6. Members shall be appointed for the life of the Commission. Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner as the original appointment.
7. Not later than 30 days after all initial members of the Commission have been appointed, the Commission shall hold its first meeting.
8. The Commission shall meet at the call of the Chair.
9. A majority of the members of the Commission shall constitute a quorum for conducting business, but a lesser number of members may hold hearings.
(C) RULES AND PROCEDURES—The Commission shall adopt rules and procedures to govern its proceedings.
SECTION 5. DUTIES OF THE COMMISSION
(A) IN GENERAL—The Commission shall conduct a thorough study of all matters relating to the administration of the death penalty at the state level to determine whether it comports with constitutional principles and requirements of fairness, justice, equality and due process.
(B) MATTERS STUDIED—The matters studied by the Commission shall include the following:
1. Racial disparities in capital charging, prosecuting and sentencing decisions.
2. Disproportionality in capital charging, prosecuting and sentencing decisions based on, or in correlation to, the geographic location and income status of defendant, or any other factor resulting in such disproportionality.
3. Adequacy of representation of capital defendants, including consideration of the American Bar Association “Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases” (adopted February 1989) and Association policies intended to encourage competency of counsel in capital cases (adopted February 1979, February 1988, February 1990, and August 1996).
4. Incidence of innocent persons sentenced to death, and the reasons the wrongful convictions have occurred.
5. Procedures to ensure that persons sentenced to death have access to forensic evidence and modern testing of such evidence, including DNA testing, when such testing could result in new evidence of innocence.
6. Any other law or procedure to ensure that death penalty cases are administered fairly and impartially, in accordance with the state Constitution.
(C) REPORT
1. Not later than one year after the date of enactment of this Act, the Commission shall submit a preliminary report to the Governor and the legislature that contains a preliminary statement of findings and conclusions.
2. Not later than two years after the date of enactment of this Act, the Commission shall submit a report to the Governor and the legislature that contains a detailed statement of its findings and conclusions, together with its recommendations for legislative and administrative actions.
SECTION 6. EFFECTIVE DATE
This Act shall take effect on July 1, 2006.
Innocence Commission Act
Summary: The Innocence Commission Act establishes a commission to investigate wrongful convictions, determine their cause, and recommend solutions.
SECTION 1. SHORT TITLE
This Act shall be called the “Innocence Commission Act.”
SECTION 2. INNOCENCE COMMISSION
(A) ESTABLISHMENT—There is established a commission to be known as the Innocence Commission. The commission is composed of nine members.
(B) APPOINTMENTS
1. The Governor shall appoint two members, one of whom must be a dean of a law school and one of whom must be a law enforcement officer. The Attorney General shall appoint a member who must be an attorney who represents the state in the prosecution of felonies. The chair of the Senate [criminal justice committee] shall appoint one member who may be a member of the legislature. The chair of the House [criminal justice committee] shall appoint one member who may be a member of the legislature. The Chief Justice of the Supreme Court shall appoint one member who must be a member of the judiciary. The Chancellor of the University of [State] shall appoint two members, one of whom must be a law professor and one of whom must work in the field of forensic science. The [State] Criminal Defense Lawyers Association shall appoint one member who must be a criminal defense lawyer.
2. The members of the commission shall be appointed within 90 days of the effective date of this Act.
3. Each member shall serve a two-year term.
4. The Governor shall designate a member to serve as the presiding officer.
(C) DUTIES
1. The commission shall thoroughly investigate all post-conviction exonerations, including convictions vacated based on a plea to time served, to:
a. Ascertain errors and defects in the criminal procedure used to prosecute the defendant’s case at issue;
b. Identify errors and defects in the criminal justice process in this state generally;
c. Develop solutions and methods to correct the identified errors and defects; and
d. Identify procedures and programs to prevent future wrongful convictions.
2. The commission may enter into contracts for research services as considered necessary to complete the investigation of a particular case, including forensic testing and autopsies.
3. The commission may administer oaths and issue subpoenas, signed by the presiding officer, to compel the production of documents and the attendance of witnesses as considered necessary to conduct a thorough investigation. A subpoena of the commission shall be served by a peace officer in the manner in which [district court] subpoenas are served. On application of the commission, a district court of [the capital city] shall compel compliance with the subpoena in the same manner as for district court subpoenas.
(D) REPORT
1. The commission shall compile a detailed annual report of its findings and recommendations, including any proposed legislation to implement procedures and programs to prevent future wrongful convictions.
2. The report shall be made available to the public on request.
3. The findings and recommendations contained in the report may not be used as binding evidence in a subsequent civil or criminal proceeding.
(E) SUBMISSION—The commission shall submit the report to the Governor and the legislature not later than December 1 of each even-numbered year.
(F) REIMBURSEMENT—A member of the commission is not entitled to compensation but is entitled to reimbursement for the member’s travel expenses as provided by [cite state law].
SECTION 3. EFFECTIVE DATE
This Act shall take effect on July 1, 2006.