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Remarks By Sen. Franken to the Innocence Project

Tuesday, November 17, 2009

Remarks by Senator Al Franken to the Innocence Project - November 14, 2009 (As Prepared for Delivery):



Thank you, Ed, for that introduction, and for your good work.

You know, the first thing you do when you become Senator is to take an oath.  And that oath is to uphold the Constitution of the United States.  And, for me, that means the entire document… 

…except for the 18th amendment.   But that was repealed by the 21st amendment, anyway. 

But the oath I took definitely includes the 5th and 14th Amendments.  Due process and equal protection.

I’m proud to support your work, because in too many cases right now, those rights are not being upheld.

The work of the Innocence Project has already led to 245 post-conviction DNA exonerations.  And in four out of every ten of those exonerated, DNA testing identified the actual perpetrator.

When you consider that you’ve only looked at a small subset of all of the cases out there, the conclusion is pretty clear: there are innocent people in prison and on death row, and guilty people walking the streets.

The former should weigh heavy on our conscience.  Both should be a cause for concern… and action.

Some people think efforts to exonerate the wrongly convicted are somehow soft on crime.   I think it’s just the opposite – your efforts are not just morally right, they’re tactically smart – they help us ensure that innocent people are not wrongly incarcerated while the actual perpetrators walk free to commit more crimes.

There’s a lot of debate in progressive circles about what has changed under the Obama administration, and what hasn’t.

But one thing has certainly changed:  We have a government that believes in science once again.

Believing in science means acting on what the science tells you.

So what does the science tell us when it comes to crime?

Well, this February, the National Academy of Sciences released their comprehensive, two-year review of forensic science in use throughout American crime labs. 

They concluded, and I’m quoting:

“Many forensic tests… have never been exposed to stringent scientific scrutiny. With the exception of nuclear DNA analysis… no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

I participated in the hearing where those findings were released, and as we questioned witnesses, what became clear is that there have been many false convictions based on improper, or at best ineffective, forensic techniques.

And that tells us we need to reassess how our criminal justice system does business. 

One of the most critical roles of the Senate Judiciary Committee is to conduct oversight of our nation’s criminal justice system, and enact laws to fix its problems. 

We’re about to consider a bill proposed by Senator Jim Webb of Virginia that would create a bipartisan, blue ribbon commission to conduct a full reexamination of our nation’s criminal justice system—including a look at the causes of the United States’ high incarceration rates.  Although the U.S. has fewer than 5 percent of the total world population, it incarcerates 25 percent of the world’s inmates. 

I’m a proud co-sponsor of this bill.

And my support is dictated largely by my belief that the incarceration of one innocent person is one too many.

And I would hope it goes without saying that the execution of an innocent is vastly beyond what the moral fiber of our nation can bear.

These efforts – your efforts – become even more important as state budgets continue to be slashed, which means that funding for public defenders is drying up. 

Already, we’ve seen public defenders in several states refuse to accept new cases due to an overwhelming caseload.

And it would stand to reason that with public defenders stretched even thinner than before… mounting a vigorous defense becomes harder than ever before. 

Three years ago, Supreme Court Justice Antonin Scalia remarked that there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years,” he said, “we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”

Well, we know that someone has been executed for a crime he didn’t commit.   Most of you know the story of Cameron Todd Willingham.  In 1991, a fire in Cameron Willingham’s house killed his three daughters – one-year-old twins, and a two-year-old.  Willingham was convicted of the murder –even though everything about his conviction, from the arson investigation to the shifting testimony of witnesses for the prosecution was flawed.

But because I don’t hear Justice Scalia shouting the name of Cameron Todd Willingham from the rooftops… we have to.

Several years ago, I had the chance to interview then-Governor George Ryan of Illinois.  When he talked about placing a moratorium on all executions and commuting every death sentence to life without parole, he said, “People are saying I’m a hero, but I had no choice.” 

And he didn’t.  He wasn’t being self-deprecating for effect. Between 1997 and 2000, the year he placed a moratorium on executions, 12 inmates were put to death, but 13 inmates were exonerated. 

Anthony Porter, a man with an IQ of less than sixty who spent over fifteen years on Death Row for a crime he did not commit -- had ordered his last meal and been fitted for his burial suit.

We’ve been too long in learning the lesson of Illinois:  there should be a moratorium on the death penalty until the tools to determine guilt and innocence based on sound, rigorous science are in widespread use.

And if that does not happen, we should consider abolishing the death penalty altogether. 

When we talk about the tools to determine guilt and innocence, it is shameful that the most powerful tools are sitting in labs and evidence rooms all over this country, gathering dust.

According to recent reports, there are several hundred thousand untested rape kits sitting in crime labs and evidence rooms throughout the country.

That’s 4,000 in Houston. 10,000 in Detroit.  That’s more than 12,000 in Los Angeles, including 400 that have been neglected for more than a decade.  One recent report suggests that there are hundreds of untested rape kits in Minneapolis. 

On every level, we’re effectively saying to hundreds of thousands women who have been raped—and many whose assailants could easily and swiftly and surely be brought to justice—“Sorry, we just don’t take you seriously, and just couldn’t get around to it.”

Tell that to the nearly 90,000 women who reported being raped last year.

Tell that to the American people, in whose name this system operates.

We should be ashamed of this inexplicable and inexcusable failure of their justice system.

With today’s technology, rape kits take only a week to process, so there’s no reason why each kit can’t be tested in a timely manner. We just need the funding to make this a reality.

That’s why, in the Senate, I have introduced the Justice for Survivors of Sexual Assault Act.

This bill would create a database for reporting rape kit backlogs across the nation.

It would create financial incentives for jurisdictions to promptly process their rape kits going forward, rewarding jurisdictions that promptly clear their backlogs, and penalizing those that do not.

And it would require any state or city that applies for certain kinds of federal funding to put plans in place to halve their rape kit backlogs in two years.

The few jurisdictions that have already made efforts to get through their backlogs have had tremendous results.

In New York, which dramatically reduced its rape kit backlog, the arrest rate for reported cases of rape rose from 40 percent to 70 percent.

That includes 2000 “cold hits,” which means they matched the DNA to a previous offender, and were able to make a quick arrest.

We also have a promising project here in the Hennepin County Attorney’s office headed up by Senior Assistant County Attorney Steve Redding. It not only has the intent of identifying cold hit cases in cases of rape, but also to exonerate innocent suspects in other crimes. In 2007 Mr. Redding prosecuted the case of an 88-year-old woman who was brutally raped and murdered in Maple Grove.  Because the perpetrators DNA profile was processed and put into the convicted offender database, the perpetrator was charged, prosecuted and sentenced to life in prison.  His project has recently yielded several other cold hits, when he tested the rape kits from 35 carefully selected cases it resulted in eight cold hits. He has filed charges in each of those eight cases.

As I said, last year there were nearly 90,000 reported cases of rape nationwide.  Just think — if the whole country had committed to a program like New York’s or like Steve Redding’s in Hennepin County-- how many more rapists would be behind bars? 

Also think—how many innocent, wrongly convicted people would be able to walk free? And how many women who have been raped would not have been.

And those are the questions that my legislation aims to address.

And just as we want to ensure that the courts work – for the victims and the criminals – we also want to ensure that all people have access to them.

That’s why I’m also fighting to deny funding to government contractors who require their workers to arbitrate—and not litigate—disputes against them.

This issue was brought to my attention by a woman named Jamie Leigh Jones. 

Four years ago, at the age of 19, Ms. Jones signed a contract to become an employee of KBR, then a Halliburton subsidiary. 

Assigned to a barracks with 400 men (she never saw another woman there), she immediately faced sexual harassment. 

When she reported the harassment to her supervisors they told her to “take a day at the spa.

Four days following her arrival in Iraq, Ms. Jones was drugged, and gang raped.  

When she reported the rape to her supervisors, they locked her in a shipping container—a shipping container—without food, without water, without light.  An armed guard stood watch.

When she finally convinced one of the guards to lend her a cell phone, she was able to call her father, who enlisted the help of Representative Ted Poe, a Republican congressman from Texas, who arranged for her safe return to the United States. 

This crime occurred four years ago, as she worked for a government contractor, and yet Ms. Jones has not yet had her day in court. 

How can this be? 

Because the contract she signed contained a seemingly innocuous, fine print clause that required her to arbitrate any future dispute against her employer.

A government contractor was allowed to force her, as a condition of employment, to give up her right to seek redress for any wrong in the courts. 

We cannot allow corporations that work for the government to rob people of their rights and deny them their day in court. 

That’s why I introduced an amendment to the 2010 Department of Defense appropriations bill that would deny Defense Department funding to contractors who require their employees to arbitrate—and not litigate—sexual assault and other Title VII discrimination and civil rights claims.

Everyone – especially those who do not operate from positions of power – deserve their day in court.

That’s a big part of why I supported the confirmation of Judge Sonia Sotomayor to the Supreme Court.

This is a court that, over the past decade, had embraced conservative judicial activism… …and struck down long-standing precedents and long-settled laws that have secured Americans’ individual rights, individual protections, and individual liberties.

It was this Court that nearly reversed critical portions of the Voting Rights Act. Despite the powers that Congress was granted under the 15th Amendment to enforce it. And despite the fact that Congress has reauthorized these measures four times, most recently a few years ago by a vote of 98 to 0 in the Senate.

It was this Court that reversed a 100-year old ban on price-fixing under the Sherman Act.  Now, consumers and small businesses—not corporations—have the burden of proving that price-fixing hurts competition.

It was this Court that struck down a provision of the McCain-Feingold law that it had previously upheld six years prior.

The same court that said any measure regulating a woman’s right to choose no longer must protect the health of the woman.

And that decreed older workers do not have the same rights in the workplace as minorities or women, as you or me.

That is why I voted for Justice Sotomayor.

Because it is my sincere hope that she—and future Justices like her—will reverse these disturbing trends and restore a doctrine of restraint, stare decisis, and the protection of individual rights to the Court.

Because ultimately, justice is about the protection of individual rights, the prosecution of the guilty and the protection of the innocent. 

Justice is about a functioning legal system, and access to the courts.

So I’m honored to be here tonight, and grateful for all of the work you do for justice. 

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