[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 267 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 267

 To amend chapter 47 of title 10, United States Code (the Uniform Code 
 of Military Justice), to establish procedures for the adjudication by 
           courts-martial of sentences of capital punishment.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 5, 1993

 Mr. McCollum introduced the following bill; which was referred to the 
                      Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
 To amend chapter 47 of title 10, United States Code (the Uniform Code 
 of Military Justice), to establish procedures for the adjudication by 
           courts-martial of sentences of capital punishment.

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

SECTION 1. PROCEDURES FOR ADJUDICATION OF CAPITAL PUNISHMENT BY COURTS-
              MARTIAL.

    (a) New UCMJ Article.--(1)(A) Chapter 47 of title 10, United States 
Code (the Uniform Code of Military Justice), is amended by inserting 
after section 852 (article 52) the following new section (article):
``Sec. 852a. Art. 52a. Procedures for adjudging capital punishment
    ``(a) No person may be sentenced by a court-martial to suffer death 
except as provided in this section (article).
    ``(b) No person may be sentenced by a court-martial to suffer death 
unless convicted by the concurrence of all the members of the court-
martial present at the time the vote is taken of an offense in this 
chapter expressly made punishable by death.
    ``(c) If the trial counsel at a court-martial of an offense under 
this chapter expressly made punishable by death intends to prove at the 
trial any aggravating factor set out in subsection (e), the trial 
counsel shall provide the accused before arraignment with written 
notice of each such aggravating factor the trial counsel intends to 
prove. However, failure to provide such notice of an aggravating factor 
set out in subsection (e) before arraignment shall not bar later notice 
and proof of that aggravating factor unless the accused demonstrates--
            ``(1) that the failure resulted in specific prejudice to 
        the accused; and
            ``(2) that a continuance or recess is not an adequate 
        remedy for such failure.
    ``(d)(1) A person may not be sentenced to death by a court-martial 
unless--
            ``(A) the members of the court-martial unanimously find at 
        least one of the aggravating factors set out in subsection (e);
            ``(B) notice of that aggravating factor was provided in 
        accordance with subsection (c); and
            ``(C) each member of the court-martial concurs in finding 
        that any extenuating or mitigating circumstances are 
        substantially outweighed by aggravating circumstances, 
        including the aggravating factors set out in subsection (e).
    ``(2) Findings by the members of a court-martial under paragraph 
(1) may be based on--
            ``(A) evidence introduced on the issue of guilt or 
        innocence;
            ``(B) evidence introduced during the sentencing proceeding; 
        or
            ``(C) all such evidence.
    ``(3) The accused shall be given broad latitude to present matters 
in extenuation and mitigation.
    ``(e)(1) A sentence of death may be adjudged by a court-martial 
only if the members of the court-martial unanimously find, beyond a 
reasonable doubt, one or more of the following aggravating factors:
            ``(A) That the offense was committed before or in the 
        presence of the enemy (except that this subparagraph does not 
        apply in the case of an offense under section 918 or 920 of 
        this title (article 118 or 120)).
            ``(B) That, in committing the offense, the accused 
        intended--
                    ``(i) to cause a grave risk of substantial damage 
                to the national security; or
                    ``(ii) to cause a grave risk of substantial damage 
                to a mission, system, or function of the United States, 
                but only if substantial damage to the national security 
                of the United States would have resulted had the 
                intended damage been effected.
            ``(C) That the offense caused substantial damage to the 
        national security of the United States, whether or not the 
        accused intended such damage (except that this subparagraph 
        does not apply in the case of an offense under section 918 or 
        920 of this title (article 118 or 120)).
            ``(D) That the accused knowingly created a grave risk of 
        death to one or more persons in addition to the victim of the 
        offense (except that this factor does not apply in the case of 
        an offense under section 920 of this title (article 120)).
            ``(E) That the accused committed the offense with the 
        intent to avoid hazardous duty.
            ``(F) That, only in the case of an offense under section 
        918 or 920 of this title (article 118 or 120), the offense was 
        committed in time of war and in territory in which--
                    ``(i) the United States or an ally of the United 
                States was then an occupying power; or
                    ``(ii) the armed forces of the United States were 
                then engaged in active hostilities.
            ``(G) That, only in the case of an offense under section 
        918(l) of this title (article 118(l)), any of the following is 
        applicable:
                    ``(i) The accused was serving a sentence of 
                confinement for 30 years or more or for life at the 
                time of the offense.
                    ``(ii) The offense was committed while the 
                accused--
                            ``(I) was engaged in the commission or 
                        attempted commission of robbery, rape, 
                        aggravated arson, sodomy, burglary, kidnapping, 
                        mutiny, sedition, or piracy of an aircraft or 
                        vessel; or
                            ``(II) was engaged in flight or attempted 
                        flight after the commission or attempted 
                        commission of any such offense.
                    ``(iii) The offense was committed for the purpose 
                of receiving money or a thing of value.
                    ``(iv) The accused procured another by means of 
                compulsion, coercion, or a promise of an advantage, a 
                service, or a thing of value to commit the offense.
                    ``(v) The offense was committed with the intent to 
                avoid or to prevent lawful apprehension or effect an 
                escape from custody or confinement.
                    ``(vi) The victim of the offense was--
                            ``(I) the President, the President-elect, 
                        the Vice President (or, if there was no Vice 
                        President, the officer next in the order of 
                        succession to the office of President), the 
                        Vice President-elect, or an individual who is 
                        acting as President under the Constitution and 
                        laws of the United States;
                            ``(II) a Member of Congress (including a 
                        Delegate to, or Resident Commissioner in, the 
                        Congress) or Member-of-Congress elect;
                            ``(III) a justice or judge of the United 
                        States;
                            ``(IV) a chief of state or head of 
                        government (or the political equivalent) of a 
                        foreign nation; or
                            ``(V) a foreign official (as such term is 
                        defined in section 1116(b)(3)(A) of title 18), 
                        if the official was in the United States or on 
                        military property of the United States on 
                        official business at the time of the offense.
                    ``(vii) The accused at the time of the offense knew 
                that the victim was any of the following in the 
                execution of such person's office:
                            ``(I) A commissioned, warrant, 
                        noncommissioned, or petty officer of the armed 
                        forces.
                            ``(II) A member of a law enforcement or 
                        security activity or agency, including 
                        correctional custody personnel.
                            ``(III) A firefighter.
                    ``(viii) The offense was committed with intent to 
                obstruct justice.
                    ``(ix) The offense was preceded by the intentional 
                infliction of substantial physical harm or prolonged, 
                substantial mental or physical pain and suffering to 
                the victim.
                    ``(x) The accused has been found guilty in the same 
                case of another offense under section 918 of this title 
                (article 118).
            ``(H) That, only in the case of an offense under section 
        918(4) of this title (article 118(4)), the accused was the 
        actual perpetrator of the killing.
            ``(I) That, only in the case of an offense under section 
        920 of this title (article 120)--
                    ``(i) the victim was under the age of 12; or
                    ``(ii) the accused maimed or attempted to kill the 
                victim.
            ``(J) That, only in the case of an offense under the law of 
        war, a sentence of death is authorized under the law of war for 
        the offense.
            ``(K) That, only in the case of an offense under section 
        904 or 906a the accused has previously been convicted of this 
        title (article 104 or 106a), of another offense involving 
        espionage or treason for which either a sentence of death or a 
        sentence of life imprisonment was authorized by statute.
            ``(L) That the offense involved such other factors as may 
        be prescribed by the President by regulation, to the extent 
        that such factors concern the national security or otherwise 
        involve a function of the armed forces related to the conduct 
        of hostilities.
    ``(2) In this subsection, `national security' means the national 
defense and foreign relations of the United States and specifically 
includes--
            ``(A) a military or defense advantage over any foreign 
        nation or group of nations;
            ``(B) a favorable foreign relations position; or
            ``(C) a defense posture capable of successfully resisting 
        hostile or destructive action from within or without.
    ``(f) The military judge, in the presence of the accused and 
counsel, shall instruct the members of the court-martial on--
            ``(1) such aggravating factors set forth in subsection (e) 
        as may be in issue in the case;
            ``(2) the requirements and procedures under this section; 
        and
            ``(3) the requirement to consider all evidence in 
        extenuation and mitigation before they may adjudge a sentence 
        of death.
    ``(g)(1) In closed session, before voting on a sentence--
            ``(A) the members of the court-martial shall vote by secret 
        written ballot separately on each aggravating factor set out in 
        subsection (e) on which they have been instructed; and
            ``(B) if one or more of the aggravating factors set forth 
        in subsection (e) is found to exist, the members shall then 
        vote by secret written ballot on whether the aggravating 
        circumstances (including any aggravating factors set out in 
        subsection (e)) substantially outweigh any extenuating or 
        mitigating circumstances or, in the absence of any extenuating 
        or mitigating circumstances, whether the aggravating 
        circumstances are themselves sufficient to justify a sentence 
        of death.
    ``(2) A sentence of death may not be adjudged unless each member of 
the court-martial concurs--
            ``(A) that, with respect to at least one aggravating 
        factor, the existence of such factor has been proved beyond a 
        reasonable doubt; and
            ``(B) that the aggravating circumstances (including any 
        aggravating factors set out in subsection (e)) substantially 
        outweigh any extenuating or mitigating circumstances or, in the 
        absence of any extenuating or mitigating circumstances, that 
        the aggravating circumstances are themselves sufficient to 
        justify a sentence of death.
    ``(3) The members of the court-martial shall vote on a sentence 
under section 852 of this title (article 52).
    ``(h) If a sentence of death is adjudged, the president of the 
court-martial shall announce which aggravating factors under subsection 
(e) were unanimously found by the members.
    ``(i) Subsections (c) through (h) do not apply with respect to the 
sentence for an offense under section 106 of this title (article 
106).''.
    (B) The table of sections at the beginning of subchapter VII of 
such chapter is amended by inserting after the item relating to section 
852 (article 52) the following new item:

``852a. Art. 52a. Procedures for adjudging capital punishment.''.
    (2) Section 852(b)(1) of such title (article 52(b)(1)) is amended 
by inserting ``as provided in section 852a of this title (article 
52a)'' after ``taken''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect on the 90th day after the date of the enactment of this Act 
and shall apply to charges first preferred on or after that date.

                                 <all>