[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2215 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 2215

 To amend title 18, United States Code, to provide a death penalty for 
            the murder of Federal law enforcement officers.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 20, 1993

  Mr. Franks of Connecticut introduced the following bill; which was 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title 18, United States Code, to provide a death penalty for 
            the murder of Federal law enforcement officers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Law Enforcement Officers 
Protection Act of 1993''.

SEC. 2. DEATH PENALTY FOR THE MURDER OF FEDERAL LAW ENFORCEMENT 
              OFFICIALS.

    Section 1114(a) of title 18, United States Code, is amended by 
striking ``punished as provided under sections 1111 and 1112 of this 
title,'' and inserting ``punished, in the case of murder, by a sentence 
of death or life imprisonment as provided under section 1111 of this 
title, or, in the case of manslaughter, a sentence as provided under 
section 1112 of this title,''.

SEC. 3. CONSTITUTIONAL PROCEDURES FOR THE IMPOSITION OF THE SENTENCE OF 
              DEATH.

    (a) In General.--Part II of title 18 of the United States Code is 
amended by adding the following new chapter after chapter 227:

                     ``CHAPTER 228--DEATH SENTENCE

``Sec.
``3591. Sentence of death.
``3592. Mitigating and aggravating factors to be considered in 
                            determining whether a sentence of death is 
                            justified.
``3593. Special hearing to determine whether a sentence of death is 
                            justified.
``3594. Imposition of a sentence of death.
``3595. Review of a sentence of death.
``3596. Implementation of a sentence of death.
``3597. Use of State facilities.
``Sec. 3591. Sentence of death
    ``A defendant who has been found guilty of an offense under section 
1114 of this title for which a sentence of death is provided, if the 
defendant, as determined beyond a reasonable doubt at the hearing under 
section 3593--
                    ``(A) intentionally killed the victim;
                    ``(B) intentionally inflicted serious bodily injury 
                that resulted in the death of the victim;
                    ``(C) intentionally participated in an act, 
                contemplating that the life of a person would be taken 
                or intending that lethal force would be used in 
                connection with a person, other than one of the 
                participants in the offense, and the victim died as a 
                direct result of the act; or
                    ``(D) intentionally and specifically engaged in an 
                act, knowing that the act created a grave risk of death 
                to a person, other than one of the participants in the 
                offense, such that participation in the act constituted 
                a reckless disregard for human life and the victim died 
                as a direct result of the act,
shall be sentenced to death if, after consideration of the factors set 
forth in section 3592 in the course of a hearing held pursuant to 
section 3593, it is determined that imposition of a sentence of death 
is justified, except that no person may be sentenced to death who was 
less than 18 years of age at the time of the offense.
``Sec. 3592. Mitigating and aggravating factors to be considered in 
              determining whether a sentence of death is justified
    ``(a) Mitigating Factors.--In determining whether a sentence of 
death is to be imposed on a defendant, the finder of fact shall 
consider any mitigating factor, including the following:
            ``(1) Impaired capacity.--The defendant's capacity to 
        appreciate the wrongfulness of the defendant's conduct or to 
        conform conduct to the requirements of law was significantly 
        impaired, regardless of whether the capacity was so impaired as 
        to constitute a defense to the charge.
            ``(2) Duress.--The defendant was under unusual and 
        substantial duress, regardless of whether the duress was of 
        such a degree as to constitute a defense to the charge.
            ``(3) Minor participation.--The defendant is punishable as 
        a principal in the offense, which was committed by another, but 
        the defendant's participation was relatively minor, regardless 
        of whether the participation was so minor as to constitute a 
        defense to the charge.
            ``(4) Forseeability.--The defendant could not reasonably 
        have foreseen that the defendant's conduct in the course of the 
        commission of murder, or other offense resulting in death for 
        which the defendant was convicted, would cause, or would create 
        a grave risk of causing, death to any person.
            ``(5) No prior criminal record.--The defendant did not have 
        a significant prior history of other criminal conduct.
            ``(6) Disturbance.--The defendant committed the offense 
        under severe mental or emotional disturbance.
            ``(7) Victim's consent.--The victim consented to the 
        criminal conduct that resulted in the victim's death.
            ``(8) Other factors.--Other factors in the defendant's 
        background, record, or character or any other circumstance of 
        the offense that mitigate against imposition of the death 
        sentence.
    ``(b) Aggravating Factors.--In determining whether a sentence of 
death is justified for an offense described in section 3591, the jury, 
or if there is no jury, the court, shall consider each of the following 
aggravating factors for which notice has been given and determine 
which, if any, exist:
            ``(1) Death during commission of another crime.--The death, 
        or injury resulting in death, occurred during the commission or 
        attempted commission of, or during the immediate flight from 
        the commission of, an offense under section 32 (destruction of 
        aircraft or aircraft facilities), section 33 (destruction of 
        motor vehicles or motor vehicle facilities), section 36 
        (violence at international airports), section 351 (violence 
        against Members of Congress, Cabinet officers, or Supreme Court 
        Justices), an offense under section 751 (prisoners in custody 
        of institution or officer), section 794 (gathering or 
        delivering defense information to aid foreign government), 
        section 844(d) (transportation of explosives in interstate 
        commerce for certain purposes), section 844(f) (destruction of 
        Government property in interstate commerce by explosives), 
        section 1118 (prisoners serving life term), section 1201 
        (kidnaping), section 844(i) (destruction of property affecting 
        interstate commerce by explosives), section 1116 (killing or 
        attempted killing of diplomats), section 1203 (hostage taking), 
        section 1992 (wrecking trains), section 2280 (maritime 
        violence), section 2281 (maritime platform violence), section 
        2332 (terrorist acts abroad against United States nationals), 
        section 2339 (use of weapons of mass destruction), or section 
        2381 (treason) of this title, or section 902 (i) or (n) of the 
        Federal Aviation Act of 1958 (49 U.S.C. 1472 (i) or (n)) 
        (aircraft piracy).
            ``(2) Involvement of firearm or previous conviction of 
        violent felony involving firearm.--The defendant--
                    ``(A) during and in relation to the commission of 
                the offense or in escaping or attempting to escape 
                apprehension used or possessed a firearm as defined in 
                section 921 of this title; or
                    ``(B) has previously been convicted of a Federal or 
                State offense punishable by a term of imprisonment of 
                more than one year, involving the use of attempted or 
                threatened use of a firearm, as defined in section 921 
                of this title, against another person.
            ``(3) Previous conviction of offense for which a sentence 
        of death or life imprisonment was authorized.--The defendant 
        has previously been convicted of another Federal or State 
        offense resulting in the death of a person, for which a 
        sentence of life imprisonment or a sentence of death was 
        authorized by statute.
            ``(4) Previous conviction of other serious offenses.--The 
        defendant has previously been convicted of two or more Federal 
        or State offenses, punishable by a term of imprisonment of more 
        than one year, committed on different occasions, involving the 
        infliction of, or attempted infliction of, serious bodily 
        injury or death upon another person.
            ``(5) Grave risk of death to additional persons.--The 
        defendant, in the commission of the offense, or in escaping 
        apprehension for the violation of the offense, knowingly 
        created a grave risk of death to one or more persons in 
        addition to the victim of the offense.
            ``(6) Heinous, cruel, or depraved manner of committing 
        offense.--The defendant committed the offense in an especially 
        heinous, cruel, or depraved manner in that it involved torture 
        or serious physical abuse to the victim.
            ``(7) Procurement of offense by payment.--The defendant 
        procured the commission of the offense by payment, or promise 
        of payment, of anything of pecuniary value.
            ``(8) Pecuniary gain.--The defendant committed the offense 
        as consideration for the receipt, or in the expectation of the 
        receipt, of anything of pecuniary value.
            ``(9) Substantial planning and premeditation.--The 
        defendant committed the offense after substantial planning and 
        premeditation to cause the death of a person or commit an act 
        of terrorism.
            ``(10) Conviction for two felony drug offenses.--The 
        defendant has previously been convicted of two or more State or 
        Federal offenses punishable by a term of imprisonment of more 
        than one year, committed on different occasions, involving the 
        distribution of a controlled substance.
            ``(11) Vulnerability of victim.--The victim was 
        particularly vulnerable due to old age, youth, or infirmity.
            ``(12) Conviction for serious federal drug offenses.--The 
        defendant had previously been convicted of violating title II 
        or title III of the Controlled Substances Act for which a 
        sentence of 5 or more years may be imposed or had previously 
        been convicted of engaging in a continuing criminal enterprise.
            ``(13) Continuing criminal enterprise involving drug sales 
        to minors.--The defendant committed the offense in the course 
        of engaging in a continuing criminal enterprise in violation of 
        section 408(c) of the Controlled Substances Act and that 
        violation involved the distribution of drugs to persons under 
        the age of 21 in violation of section 418 of such Act.
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor for which notice has been given exists.
``Sec. 3593. Special hearing to determine whether a sentence of death 
              is justified
    ``(a) Notice by the Government.--If, in a case involving an offense 
described in section 3591 of this title, the attorney for the 
Government believes that the circumstances of the offense are such that 
a sentence of death is justified under this chapter, the attorney 
shall, a reasonable time before the trial or before acceptance by the 
court of a plea of guilty, sign and file with the court, and serve on 
the defendant, a notice--
            ``(1) stating that the Government believes that the 
        circumstances of the offense are such that, if the defendant is 
        convicted, a sentence of death is justified under this chapter 
        and that the Government will seek the sentence of death; and
            ``(2) setting forth the aggravating factor or factors that 
        the Government, if the defendant is convicted, proposes to 
        prove as justifying a sentence of death.
The factors for which notice is provided under this subsection may 
include factors concerning the effect of the offense on the victim and 
the victim's family, and may include oral testimony, a victim impact 
statement that identifies the victim of the offense and the extent and 
scope of the injury and loss suffered by the victim and the victim's 
family, and any other relevant information. The court may permit the 
attorney for the Government to amend the notice upon a showing of good 
cause.
    ``(b) Hearing Before a Court or Jury.--If the attorney for the 
Government has filed a notice as required under subsection (a) of this 
section and the defendant is found guilty of or pleads guilty to an 
offense described in section 3591 of this title, the judge who presided 
at the trial or before whom the guilty plea was entered, or another 
judge if that judge is unavailable, shall conduct a separate sentencing 
hearing to determine the punishment to be imposed. The hearing shall be 
conducted--
            ``(1) before the jury that determined the defendant's 
        guilt;
            ``(2) before a jury impaneled for the purpose of the 
        hearing if--
                    ``(A) the defendant was convicted upon a plea of 
                guilty;
                    ``(B) the defendant was convicted after a trial 
                before the court sitting without a jury;
                    ``(C) the jury that determined the defendant's 
                guilt was discharged for good cause; or
                    ``(D) after initial imposition of a sentence under 
                this section, reconsideration of the sentence under 
                this section is necessary; or
            ``(3) before the court alone, upon the motion of the 
        defendant and with the approval of the attorney for the 
        Government.
A jury impaneled pursuant to paragraph (2) of this subsection shall 
consist of 12 members, unless, at any time before the conclusion of the 
hearing, the parties stipulate, with the approval of the court, that it 
shall consist of a lesser number.
    ``(c) Proof of Mitigating and Aggravating Factors.--Notwithstanding 
rule 32(c) of the Federal Rules of Criminal Procedure, when a defendant 
is found guilty or pleads guilty to an offense under section 3591 of 
this title, no presentence report shall be prepared. At the sentencing 
hearing, information may be presented as to any matter relevant to the 
sentence, including any mitigating or aggravating factor permitted or 
required to be considered under section 3592 of this title. Information 
presented may include the trial transcript and exhibits if the hearing 
is held before a jury or judge not present during the trial. The 
defendant may present any information relevant to a mitigating factor. 
The Government may present any information relevant to an aggravating 
factor. The Government and the defendant shall be permitted to rebut 
any information received at the hearing, and shall be given fair 
opportunity to present argument as to the adequacy of the information 
to establish the existence of any aggravating or mitigating factor, and 
as to the appropriateness in the case of imposing a sentence of death. 
The Government shall open the argument. The defendant shall be 
permitted to reply. The Government shall then be permitted to reply in 
rebuttal. The burden of establishing the existence of any aggravating 
factor is on the Government, and is not satisfied unless the existence 
of such a factor is established beyond a reasonable doubt. The burden 
of establishing the existence of any mitigating factor is on the 
defendant, and is not satisfied unless the existence of such a factor 
is established by a preponderance of the information.
    ``(d) Return of Special Findings.--The jury, or if there is no 
jury, the court, shall consider all the information received during the 
hearing. It shall return special findings identifying any aggravating 
factor or factors set forth in section 3592 of this title found to 
exist and any other aggravating factor for which notice has been 
provided under subsection (a) of this section found to exist. A finding 
with respect to a mitigating factor may be made by one or more members 
of the jury, and any member of the jury who finds the existence of a 
mitigating factor may consider such factor established for purposes of 
this section regardless of the number of jurors who concur that the 
factor has been established. A finding with respect to any aggravating 
factor must be unanimous. If no aggravating factor set forth in section 
3592 of this title is found to exist, the court shall impose a sentence 
other than death authorized by law.
    ``(e) Return of a Finding Concerning a Sentence of Death.--If an 
aggravating factor required to be considered under section 3592 of this 
title is found to exist the jury, or if there is no jury, the court, 
shall consider whether all the aggravating factor or factors found to 
exist sufficiently outweigh all the mitigating factor or factors found 
to exist to justify a sentence of death, or, in the absence of a 
mitigating factor, whether the aggravating factor or factors alone are 
sufficient to justify a sentence of death. Based upon this 
consideration, the jury by unanimous vote, or if there is no jury, the 
court, shall recommend whether a sentence of death shall be imposed 
rather than a lesser sentence. The jury or the court, if there is no 
jury, regardless of its findings with respect to aggravating and 
mitigating factors, is never required to impose a death sentence.
    ``(f) Special Precaution To Ensure Against Discrimination.--In a 
hearing held before a jury, the court, prior to the return of a finding 
under subsection (e) of this section, shall instruct the jury that, in 
considering whether a sentence of death is justified, it shall not 
consider the race, color, religious beliefs, national origin, or sex of 
the defendant or of any victim and that the jury is not to recommend a 
sentence of death unless it has concluded that it would recommend a 
sentence of death for the crime in question no matter what the race, 
color, religious beliefs, national origin, or sex of the defendant or 
of any victim may be. The jury, upon return of a finding under 
subsection (e) of this section, shall also return to the court a 
certificate, signed by each juror, that consideration of the race, 
color, religious beliefs, national origin, or sex of the defendant or 
any victim was not involved in reaching his or her individual decision 
and that the individual juror would have made the same recommendation 
regarding a sentence for the crime in question no matter what the race, 
color, religious beliefs, national origin, or sex of the defendant or 
any victim may be.
``Sec. 3594. Imposition of a sentence of death
    ``Upon a finding under section 3593(e) of this title that a 
sentence of death is justified, the court shall sentence the defendant 
to death. Otherwise, the court shall impose any sentence other than 
death that is authorized by law. Notwithstanding any other provision of 
law, if the maximum term of imprisonment for the offense is life 
imprisonment, the court may impose a sentence of life imprisonment 
without parole.
``Sec. 3595. Review of a sentence of death
    ``(a) Appeal.--In a case in which a sentence of death is imposed, 
the sentence shall be subject to review by the court of appeals upon 
appeal by the defendant. Notice of appeal must be filed within the time 
specified for the filing of a notice of appeal. An appeal under this 
section may be consolidated with an appeal of the judgment of 
conviction and shall have priority over all other cases.
    ``(b) Review.--The court of appeals shall review the entire record 
in the case, including--
            ``(1) the evidence submitted during the trial;
            ``(2) the information submitted during the sentencing 
        hearing;
            ``(3) the procedures employed in the sentencing hearing; 
        and
            ``(4) the special findings returned under section 3593(d) 
        of this title.
    ``(c) Decision and Disposition.--
            ``(1) The court of appeals shall address all substantive 
        and procedural issues raised on the appeal of a sentence of 
        death, and shall consider whether the sentence of death was 
        imposed under the influence of passion, prejudice, or any other 
        arbitrary factor and whether the evidence supports the special 
        finding of the existence of an aggravating factor required to 
        be considered under section 3592 of this title.
            ``(2) Whenever the court of appeals finds that--
                    ``(A) the sentence of death was imposed under the 
                influence of passion, prejudice, or any other arbitrary 
                factor;
                    ``(B) the admissible evidence and information 
                adduced does not support the special finding of the 
                existence of the required aggravating factor; or
                    ``(C) the proceedings involved any other legal 
                error requiring reversal of the sentence that was 
                properly preserved for appeal under the rules of 
                criminal procedure;
        the court shall remand the case for reconsideration under 
        section 3593 of this title or imposition of a sentence other 
        than death.
            ``(3) The court of appeals shall state in writing the 
        reasons for its disposition of an appeal of a sentence of death 
        under this section.
``Sec. 3596. Implementation of a sentence of death
    ``(a) In General.--A person who has been sentenced to death 
pursuant to the provisions of this chapter shall be committed to the 
custody of the Attorney General until exhaustion of the procedures for 
appeal of the judgment of conviction and for review of the sentence. 
When the sentence is to be implemented, the Attorney General shall 
release the person sentenced to death to the custody of a United States 
marshal, who shall supervise implementation of the sentence in the 
manner prescribed by the law of the State in which the sentence is 
imposed. If the law of such State does not provide for implementation 
of a sentence of death, the court shall designate another State, the 
law of which does provide for the implementation of a sentence of 
death, and the sentence shall be implemented in the latter State in the 
manner prescribed by such law.
    ``(b) Pregnant Woman.--A sentence of death shall not be carried out 
upon a woman while she is pregnant.
    ``(c) Mental Capacity.--A sentence of death shall not be carried 
out upon a person who is mentally retarded. A sentence of death shall 
not be carried out upon a person who, as a result of mental disability, 
lacks the mental capacity to understand the death penalty and why it 
was imposed on that person.
``Sec. 3597. Use of State facilities
    ``(a) In General.--A United States marshal charged with supervising 
the implementation of a sentence of death may use appropriate State or 
local facilities for the purpose, may use the services of an 
appropriate State or local official or of a person such an official 
employs for the purpose, and shall pay the costs thereof in an amount 
approved by the Attorney General.
    ``(b) Excuse of an Employee on Moral or Religious Grounds.--No 
employee of any State department of corrections, the United States 
Department of Justice, the Federal Bureau of Prisons, or the United 
States Marshals Service, and no employee providing services to that 
department, bureau, or service under contract shall be required, as a 
condition of that employment or contractual obligation, to be in 
attendance at or to participate in any prosecution or execution under 
this section if such participation is contrary to the moral or 
religious convictions of the employee. For purposes of this subsection, 
the term `participation in executions' includes personal preparation of 
the condemned individual and the apparatus used for execution and 
supervision of the activities of other personnel in carrying out such 
activities.''.
    (b) Clerical Amendment.--The table of chapters at the beginning of 
part II of title 18, United States Code, is amended by adding the 
following new item after the item relating to chapter 227:

``228. Death sentence.......................................    3591''.

                                 <all>

HR 2215 IH----2