H.R. 5107, the Justice for All Act of 2004 (JFAA) was enacted on October 30, 2004 and includes the Crime Victims' Rights Act, the Debbie Smith Act, the DNA Sexual Assault Justice Act and the Innocence Protection Act. The Crime Victims' Rights Act is the legislation that was passed by the Senate in April 2004 in lieu of a Victims' Rights Constitutional Amendment. Title two of H.R. 5107, the Debbie Smith Act, expands the categories of state DNA profiles that will be included in the Federal DNA database, indefinitely tolls the statute of limitations for federal crimes (other than sexual assault) which implicate a suspect by DNA testing, and provides funding for states or local governments to eliminate DNA Backlogs. The DNA Sexual Assault Justice Act provides grants to states and local governments for training and technical assistance of law enforcement, court, forensic science and medical personnel, bringing crime labs into compliance with federal standards, identification of missing persons through DNA, tribal domestic violence and sexual assault groups, and eliminating backlogs in forensic evidence. Title IV of the Justice for All Act contains original parts of the Innocence Protection Act, which provides post-conviction DNA testing for federal prisoners, more compensation for those who are wrongfully convicted and funding to train lawyers to defend and prosecute death penalty cases.
The Crime Victims' Rights Act
To avoid defeat on the Senate floor of the Victims' Rights Constitutional Amendment (VRA), Senate supporters and opponents of the VRA agreed to a compromise piece of legislation that was passed in April 2004 and resulted in the Crime Victims' Rights Act. After being passed in the Senate, this legislation was eventually added to the DNA and Innocence Protection Acts to become Title I of H.R. 5107, "The Justice for All Act."
The Crime Victim's Rights Act gives crime victims' legal "rights" in federal court such as the right to be reasonably protected from the accused and the right to reasonable, accurate and timely notice of public court proceedings. In addition, victims are given the right not to be excluded from and to be reasonably heard at public court proceedings, the right to confer with government attorneys, the right to full and timely restitution. The legislation also gives victims the right to proceedings free from unreasonable delay and the right to be treated fairly and with respect for the victims' dignity and privacy.
Re-litigating proceedings in a Criminal Case
With the exception of the right to be free from unreasonable delay, many of the above named rights were previously incorporated in federal law. However, this bill enables victims to enforce these rights by re-opening proceedings with motions in federal district court. If relief is denied in district court victims are able to petition the court of appeals and submit a writ of mandamus. For example, if a victim's right to be heard during sentencing is denied, they can file a motion in district court to re-open the sentencing hearing.
The enforcement provisions of the Crime Victims Rights Act require district courts to decide motions asserting a victim's rights "forthwith." If the district court denies relief in the case of a victim asserting their right to be heard during a plea or sentencing hearing, the victim must petition the court of appeals within 10 days to review their writ of mandamus. A victim can only re-open a plea or sentencing proceeding for a violation of their rights to be heard if they have asserted that right before or during the proceeding and, in the case of a plea, the accused has not pled to the highest offense charged. After a victim petitions the court of appeals, the writ of mandamus must be decided 72 hours after filing. Victims may not request a new trial, if their "rights" have been violated.
Sec. 102 of the legislation gives victims the "right" not to be excluded from public court proceedings. Generally, witnesses at a trial are excluded from the proceedings so that hearing the testimony of other witnesses will not influence their own testimony. The ACLU expressed concern about victims who are witnesses being able to attend the entire trial and that their testimony would be biased after hearing other witness testimony during the case. At the urging of the ACLU, H.R. 5107 includes an exception similar to that currently in federal law that requires the court to determine, by clear and convincing evidence, that the testimony by the victim would be materially affected if the victim heard other testimony at the proceeding.
Crime Victims Legal Assistance and Notification Grants
Title I of the Justice for All Act also provides grants for state, tribal and local prosecutors' offices, law enforcement agencies, courts, jails, correctional facilities and qualified public or private entities to develop, implement and maintain programs to enforce victims' rights and systems to provide notification of court dates and developments in the criminal proceedings to victims in a timely and efficient manner. Jurisdictions that have victims' rights laws would qualify for grants under these provisions. The legislation authorizes $20 million over five years for notifications systems, but does not specifically authorize funding for enforcing victims' rights.
DNA Provisions: Debbie Smith and DNA Sexual Justice Acts
Grants to Eliminate DNA Backlogs
Title II of H.R. 5107 creates a formula grant program for states and local governments to utilize DNA technology to solve crime, protect the public and eliminate backlogs of DNA samples that are waiting to be analyzed. For each of the next five years $151 million is authorized for these purposes. One percent of the funding can be used for labs to prepare for accreditation and in some cases for other forensic science purpose. Grant funds can also be used to contract with private non-profit or for-profit laboratories to analyze or include DNA samples in the Federal DNA database.
Expands the Federal DNA Database
H.R. 5107 will significantly expand the Combined DNA Index System (CODIS) to include DNA for any federal felony as well as any DNA collected under relevant state law. Among other things, this provision would permit the inclusion of records from states that collect DNA profiles of people who have not been convicted of a crime. Prior to enactment of this legislation, CODIS included DNA profiles only of people convicted of serious violent federal crimes and those convicted of qualifying military and state offenses. The bill vastly expands the definition of "qualifying federal offense" to include any (state or federal) felony, sexual abuse crimes, crimes of violence, any attempt or conspiracy to commit the above crimes and additional qualifying military offenses. However, H.R. 5107 excludes DNA of state arrestees from the federal database who have not been charged by indictment or information.
Eliminates the Statute of Limitations for Various Federal Crimes Involving DNA Evidence
This legislation also will indefinitely toll the federal statute of limitations for crimes that implicate a suspect with DNA testing, except in sexual abuse cases. Under the JFAA, the statute of limitations would not begin to run until a suspect's DNA is matched with DNA from a crime scene. In sexual abuse cases, John Doe DNA indictments could be filed to toll the statute of limitation.
Crime Laboratory Compliance with Federal Standards
Sec. 302 of the JFAA requires public crime laboratories to be accredited by a nationally recognized non-profit forensic science professional association by October 30, 2006. In addition, labs must undergo external audits once every two years to ensure compliance with FBI standards. If labs are not in compliance with these and other requirements, they will be denied access to the Federal DNA database and the FBI will not include DNA profiles from the lab in the federal database.
Additional Grants for State and Local Governments
Twelve million dollars is authorized for each of the next five years to provide law enforcement, court, and forensic science personnel with training, technical assistance and education relating to identification, collection, preservation, analysis and use of DNA evidence. Grants totaling $30 million are also available to train and give technical assistance to medical personnel and other professionals who treat sexual assault victims in the identification, collection, preservation, analysis and use of DNA evidence. The legislation includes $2 million to promote the use of DNA technology to identify missing persons and human remains. Funding is available for tribal coalitions to increase awareness and enhance responses to domestic violence and sexual assault against Native American and Alaska Native women. The Paul Coverdell Forensic Sciences Improvement Grant Program is expanded to address the backlog in analysis of forensic evidence other than DNA and to train staff to assist with elimination of backlogs of forensic evidence.
Innocence Protection Act
Procedures for Federal Prisoners to Access Post-conviction DNA
Section 411 of the JFAA provides post-conviction DNA testing to people in prison for federal offenses who:
· swear under penalty of perjury that they are actually innocent of the Federal offense for which they are serving a sentence or are under a sentence of death or if they are innocent of another state of federal offense which was used during a death sentencing hearing and exoneration of that offense would entitle the applicant to a reduced sentence or a new sentencing hearing. In the case of a state offense, the applicant must establish that there is no adequate remedy under State law to permit DNA testing and that the applicant has exhausted all state remedies for requesting DNA testing;
· establish that the specific DNA evidence was secured in relation to the investigation of the above Federal or State offense;
· demonstrate that the DNA evidence has not previously been compared to the DNA of the prisoner and that the prisoner did not waive his right to request DNA testing or that previously tested DNA will be analyzed using a new method;
· verify that the evidence is in the possession of the Government, that the chain of custody has been maintained and that the evidence has been retained in a manner that will allow testing;
· establish that the DNA testing is reasonable, using sound methods;
· show that the defense theory is consistent with an affirmative defense presented at trial and would establish actual innocence;
· were convicted following a trial at which the identity of the perpetrator was at issue; (i.e., defendants who plead guilty are not eligible for post-conviction DNA testing);
· through post-conviction DNA testing would produce new material evidence to support their defense and raise reasonable probability that the prisoner did not commit the crime;
· provide a DNA sample and show that the purpose of the request for DNA testing is to establish actual innocence and not delay the administration of justice; and
The motion is made in a timely fashion, subject to the following conditions: there is a rebuttable presumption of timeliness if the motion is made within 60 months of enactment of the Justice for All Act or within 36 months of conviction, whichever comes later. This presumption may be rebutted if the applicant's motion for a DNA test is based solely upon information presented in a previously denied motion or if there is clear and convincing evidence that the filing is done to cause harassment or delay. There is a rebuttable presumption against timeliness for any motion that is not filed within the prescribed timeframe, but that can be overcome if the court finds: that the applicant was or is incompetent and such incompetence substantially contributed to the delay in filing the motion; if the evidence to be tested is newly discovered DNA evidence; if a denial would result in manifest injustice or for good cause shown.
Other assorted provisions:
· The court may appoint counsel.
· The costs of the testing are paid by the applicant unless the applicant is indigent and the testing will be done by the FBI but the court may order that the testing be done elsewhere.
· Testing must be completed within 60 days and the court has 120 days after the date that the testing was ordered to order other post-testing procedures.
· If the DNA test results are inconclusive or establish a match with this crime or some other match within the database, the sample will be retained by NDIS (National DNA Index System - CODIS). If there is no match, the sample will be destroyed.
· If the results are inconclusive the court may order more testing or deny relief, if the results are inculpatory the government will make the applicant pay for the testing, determine whether to prosecute for perjury and forward information to appropriate Parole Commission or Director of the Bureau of Prisons. If the results are exculpatory, the applicant may file a motion for a new trial or resentencing.
· Title IV also states that it does not provide a basis for relief in any Federal habeas corpus proceeding. Thus, this legislation does not create an independent right to access federal court through the Federal habeas corpus process. Also, this section clarifies that the IPA does not affect a person's ability to seek DNA testing or post-conviction relief under any other law.
Preservation of Evidence
The government shall preserve biological evidence that was secured in the investigation of the federal offense if the defendant is under a sentence of imprisonment. This section does not preempt any other law or court order requiring evidence to be preserved. The AG shall promulgate regulations within 180 days of passage. The law creates a crime punishable by up to five years in prison for anyone who knowingly and intentionally destroys, alters, or tempers with biological evidence that is required to be preserved.
Grants for States
Section 412 of the Act authorizes $25 million over five years to states to help defray the cost of post-conviction DNA testing. Section 426 authorizes $75 million each year over the same time period to train lawyers to defend and prosecute death penalty cases. The bill also specifies that states must equally allocate funding for training of prosecutors and defense lawyers.
In order to qualify for post-conviction DNA testing grants to states, the state must meet the following eligibility requirements:
· It must provide post-conviction DNA testing either under a statute enacted before the JFAA that ensures "a reasonable process for resolving claims of actual innocence," or the state must enact a statute similar to the federal post-conviction statute (described above).
· It must preserve biological evidence and secure it either under a statute enacted before the JFAA or under a statute adopted after enactment of the JFAA, which is comparable to federal law. All jurisdictions within the State must comply with this requirement and the jurisdictions may preserve evidence for periods of time longer than required by Federal law.
In order to apply for capital representation grants, the states must:
· Establish, implement or improve systems for providing competent representation to indigents charged with a capital offense, to indigents who have been sentenced to death and seek appellate or collateral review, and to convicted indigents who seek Supreme Court review.
· The grants may not be used to directly or indirectly fund capital representation.
· Not less than 75 % of the money shall fund improvements to trial-level representation and not more than 25% may fund appellate or collateral review. This requirement may be waived by the AG for good cause.
· The program to be funded must invest responsibility for appointing qualified attorneys to: a public defender program, an entity established by statute or the state's highest court, which is composed of individuals with demonstrated knowledge and expertise in capital cases, a statutory procedure established prior to enactment of the JFAA where the trial judge is required to appoint qualified attorneys from a roster maintained by the State or a regional selection committee.
· The program must: establish qualifications for attorneys in capital cases, establish and maintain a roster of qualified attorneys, appoint two attorneys in capital cases, conduct specialized trainings and remove attorneys from the roster who fail to deliver effective representation, fail to comply with program requirements or have been sanctioned for unethical conduct within the past five years.
· Attorneys employed by a public defender program shall be compensated on a scale commensurate with prosecutors; appointed attorneys shall be compensated for actual time and at a reasonable rate, non-attorney members shall be compensated at a rate that reflects their specialized skills and attorneys and non-attorneys shall be reimbursed for reasonable incidental expenses.
Permitted Uses of Funds for Capital Prosecution Improvement Grants:
· To design and implement training programs for State and local prosecutors to ensure effective representation;
· To develop and implement appropriate standards and qualifications for State and local prosecutors who litigate capital cases;
· To assess the performance of state and local prosecutors;
· To identify and implement potential legal reforms to minimize the potential for error;
· To establish a program of systematic review of cases in order to identify cases where post-conviction DNA testing may be appropriate;
· Grants may not be used to fund the prosecution of capital cases.
Reporting Requirements: Each state that receives funds shall submit an annual report to identify the activities carried out with the funds and to explain how the activities comply with the terms and conditions of the grant. These annual reports shall be made available to the public.
Evaluations by Inspector General and Administrative Remedies
At the end of the fiscal year the Inspector General must submit to the Committee on the Judiciary of the House of Representatives and the Senate a report evaluating state compliance. If the Inspector General concludes that a state is not in compliance with the terms and conditions of the grant, the IG will specify any deficiencies and make recommendations to the Attorney General for corrective action. The IG shall consider comments from any member of the public regarding the state's compliance with the terms and conditions. The IG shall maintain a website to facilitate comments. The law also authorizes the AG to specify any necessary corrective actions that the State must take. If the State fails to comply with the AG recommendations, the State will not receive any further money under the grant and will be required to pay back previously granted money.
Increased Compensation in Federal Cases for the Wrongfully Convicted
Federal law is amended to permit compensation of up to $100,000 for each 12-month period of incarceration for any plaintiff who was unjustly sentenced to death and up to $50,000 for any other plaintiff.