Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen – not weaken – procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of The Champion (”Innocence Protection Act: Death Penalty Reform on the Horizon”), I said optimistically: “The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.” Four years later I’d claim that prediction was fairly accurate. While the reforms in the final bill are not as meaningful as I and others had hoped, the pendulum clearly swung. (Title IV of Public Law 108-405, Justice for All Act.)

The IPA marks a dramatic departure from 25 years of congressional debate on the death penalty. Soon after the Supreme Court revived capital punishment in 1976, proposals emerged to restore the federal death penalty. In 1986, the Reagan Administration unsuccessfully urged the U.S. Sentencing Commission to promulgate guidelines for federal capital punishment. In 1988, as part of an omnibus anti-drug bill, Congress reauthorized the federal death penalty for certain drug-related murders. The 1994 crime bill signed by President Clinton authorized a death sentence for over 50 new and existing federal crimes.

At the same time that Congress was dusting off the machinery of federal capital punishment, it began to debate measures to limit federal review of state death sentences. Proposals to eviscerate habeas corpus came close to passage in crime bills throughout the early 1990s, but were held at bay by strenuous opposition from senior Democrats on the House Judiciary Committee and members of the Emergency Committee to Save Habeas Corpus, co-chaired by former Attorneys General Katzenbach, Richardson, Levi and Civiletti. Pressure to streamline death row appeals finally found an outlet in the 1996 anti-terrorism bill that followed the Oklahoma City bombing. That same Congress cut off funding for the death penalty resource centers that had provided a modicum of procedural protection for death row inmates in a number of active death penalty jurisdictions.

But by 2000, the climate began to change. The advent of DNA technology demonstrated with scientific precision the fallibility of the criminal justice system. Pioneering legal work and public advocacy by Innocence Project founders Barry Scheck and Peter Neufeld exonerated dozens of long-time prisoners based on post-conviction DNA testing. An overlapping list of wrongly convicted death row inmates – some exonerated by DNA testing, some by non-scientific evidence – began to grow, and soon both lists topped 100. Public pressure that only a few years earlier led to an acceleration of capital punishment now shifted in favor of closer scrutiny of death sentences to protect the innocent.

Senator Patrick Leahy and Congressman William Delahunt both began their political careers as prosecutors, Leahy in Vermont and Delahunt in Massachusetts. Both Democrats are opponents of the death penalty, but they are also savvy legislators. They built alliances with Republican death penalty supporters – Leahy with Senator Gordon Smith of Oregon and Delahunt with Congressman Ray LaHood of Illinois – to advance a package of new statutory protections for capital defendants. They dubbed their proposal the Innocence Protection Act.

Introduction of the IPA in 2000 coincided with the decision of Governor George Ryan to impose a moratorium on executions in Illinois following the exoneration of 13 death row inmates in that state. Ryan attended an early press conference on the Innocence Protection Act and was the star witness at the first House Judiciary Committee hearing on the bill.

During this time, a non-profit organization called The Justice Project – for which I served as outside counsel – developed a grassroots and media campaign to publicize growing concerns about the administration of capital punishment and build support for the Leahy/Delahunt reforms. Eventually dozens of senators and over half of the House cosponsored the bill.

Still, it would require five years of legislative slogging before the IPA would become law. Proponents of reform faced institutional opposition from federal and state prosecutors as well as skepticism from senior Republican members of the Senate and House Judiciary Committees who, only a few years before, had championed the 1996 limits on habeas corpus.

Early versions of the IPA were more wide-ranging than the recently enacted law. From the outset, the two pillars of the bill were expanded access to post-conviction DNA testing and improvements in the systems by which states appoint defense lawyers for indigent capital defendants. But the original IPA also contained other reforms such as limits on the application of the federal death penalty in states that do not authorize capital punishment, improved jury instructions in federal capital cases, and a Sense of Congress that juveniles and the mentally retarded should not be executed. These peripheral proposals dropped out during legislative negotiations over the years.

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