The vast divide between Democrats and Republicans seems wider than ever. On Capitol Hill, the daily rhetoric is so heated that bipartisan compromise seems elusive. While the current climate may seem insurmountable, strong leaders must look for opportunities to find common ground and to achieve real reform.
With the recent passing of former Member of Congress William (Bill) Delahunt, we were reminded of a different time — where polar opposites came together to improve a critical flaw in the criminal justice system.
Not so long ago, former Chairman Jim Sensenbrenner (R-Wis.) and Congressman Delahunt (D-Mass.) joined forces to work on the Innocence Protection Act. On paper and in person, these two lawmakers could not have been more different. But going into the 108th session of Congress, Sensenbrenner and Delahunt got the bill to the president’s desk. This unprecedented collaboration brought together committed supporters of the death penalty with its most vociferous opponents.
It also was the basis for a lasting friendship and late-night negotiations between the two of us. In 2003, our respective bosses instructed us to work together and get the bill to the finish line. Phil was serving as majority staff director and chief counsel for the House Judiciary Committee, and Christine came on board as Delahunt’s senior counsel.
As chairman of the House Judiciary Committee, Sensenbrenner was known for his unwavering conservative agenda and heavy-hitting “tough on crime” approach to criminal justice policy. With his thick Wisconsin accent and a fierce bang of the gavel, he kept order in his committee, unrelentingly moving forward a packed agenda.
On the other hand, Delahunt arrived in Congress following an impactful career as a local prosecutor. His affability and good nature was renowned on Capitol Hill, always finding time to form relationships with colleagues from all over the country. Delahunt’s quick wit could bring a laugh and a handshake from the most strident adversary, developing sincere relationships without regard to ideological differences. He also understood the importance of incremental progress.
The Innocence Protection Act was a complicated mandate that required a lot of education about why the bill was both necessary and balanced. At its core, the bill sought to expand the availability of post-conviction DNA testing for individuals convicted of very serious crimes resulting in the ultimate punishment: the death penalty. The Innocence Project was leading the field with an astonishing list of over 100 cases where death row inmates had been exonerated.
Sensenbrenner had concerns about capital punishment sentences in cases where the defendant could be exonerated by DNA evidence. Persuasive arguments had been made that, if an innocent person had been executed with such exculpatory evidence (such as post-conviction DNA testing), the death penalty could be ruled unconstitutional. At that time, DNA and other new technologies were the source of debates both among law enforcement and civil liberty advocates. For many local law enforcement officials, scarce resources hampered utilization of new technologies. Rumors about backlogs of untested DNA evidence were beginning to emerge.
As a former prosecutor, Delahunt knew the flaws of the system firsthand. The number of innocent people exonerated based on DNA evidence weighed heavily upon him. He also recognized the serious public safety issue where the wrong person ended up behind bars, especially if there was a serial offender on the loose.
At the same time, on Capitol Hill, Kirk Bloodsworth — the first person sentenced to death then exonerated based on post-conviction DNA evidence — had begun walking the halls of Capitol Hill to share his own personal story as a former prisoner on death row. His presence left a strong impression; his moving experience of life on death row was undeniable proof that innocent people had been sentenced to death.
Yet, given all the competing priorities in any session of Congress, Sensenbrenner and Delahunt knew that the clock was running out. It was unclear whether there could be a final push to get it done in the waning hours of the legislative session. At this pivotal moment, Sensenbrenner and Delahunt aligned their savvy deal-making skills, turning the tide to push this momentous legislation forward.
In the final hour, Sensenbrenner wouldn’t stop working once the bill passed the House. He let his colleagues in the Senate know that the bill was a priority and, with his strong demeanor, made it clear that he would play all the cards in his deck to get what he wanted. One day, the House chairman crossed paths with a vocal Republican senator who was blocking the bill’s progress in the upper chamber, pushing his own pending legislation. Without a pause, Sensenbrenner quipped, “it’s at the bottom of my drawer,” not pausing in his powerful stride.
Sensenbrenner then engaged in a creative and effective tactic: he linked a Senate bill’s passage to the enactment of the Innocence Protection Act. At the same time, Bloodsworth began walking the halls with Debbie Smith, a victim of a sexual assault whose case was solved with DNA evidence after sitting on a shelf for far too long. At this juncture, all the forces coincided to get the bill to the finish line and signed by the president.
This major bipartisan initiative demonstrated that Republicans and Democrats could come together to address flaws in the existing criminal justice system. Moreover, it was a compelling example of an inside and outside strategy to achieve major legislative reform. At the core, the legislative journey of this ground-breaking effort reflected the determination of two “old-school” dealmakers, to swing big and get the job done.
For the two of us, this effort became the basis for a lasting friendship and an unshakeable optimism that we can overcome obstacles with old-school principles. With a handshake deal and hard work, unlikely alliances yield great results.
Phil Kiko served as chief of staff and legislative director to former Rep. Jim Sensenbrenner (R-Wis.); as chief of staff / general counsel for various House committees; and as an elected chief administrative officer of the House.
Christine Leonard served as senior counsel to former Rep. William D. Delahunt (D-Mass.); as senior counsel to former Sen. Edward M. Kennedy (D-Mass.); and as associate director of legislative affairs for the White House Office of National Drug Control Policy for the Obama administration.
Tyler Mitchell