[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3037 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 3037

  To provide the penalty of death for certain killings of Federal law 
                         enforcement officers.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 9, 1993

 Mr. Gallegly introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To provide the penalty of death for certain killings 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 ``Law Enforcement Officers Death 
Penalty Act of 1993''.

SEC. 2. ESTABLISHMENT OF DEATH PENALTY FOR KILLING FEDERAL LAW 
              ENFORCEMENT OFFICERS.

    Section 1114 of title 18, United States Code, is amended--
            (1) by inserting after ``except that any such person'' the 
        following: ``who is found guilty of first degree murder shall 
        also be subject to the penalty of death in accordance with 
        chapter 228 of this title and any such person''; and
            (2) by adding at the end ``Whoever kills a State or local 
        law enforcement officer, while such officer is in the course of 
        duty assisting a Federal law enforcement officer whose killing 
        is a violation of this section, shall be subject to the same 
        punishment as is provided under this section for the killing of 
        such Federal law enforcement officer in the same 
        circumstances.''.

SEC. 3. DEATH PENALTY PROCEDURES.

    (a) In General.--Title 18 of the United States Code is amended by 
inserting after chapter 227 the following:

                ``CHAPTER 228--DEATH PENALTY PROCEDURES

``Sec.
``3591. Sentence of death.
``3592. 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 commits an offense under section 1114 of this 
title for which the death penalty may be imposed shall be sentenced to 
death if, after consideration of the factors set forth in section 3592 
of this title in the course of a hearing held pursuant to section 3593 
of this title, it is determined that imposition of a sentence of death 
is justified. However, no person may be sentenced to death who was less 
than 18 years of age at the time of the offense.
``Sec. 3592. Factors to be considered in determining whether a sentence 
              of death is justified
    ``(a) Mitigating Factors.--In determining whether a sentence of 
death is justified for any offense, the jury, or if there is no jury, 
the court, shall consider each of the following mitigating factors and 
determine which, if any, exist:
            ``(1) Mental capacity.--The defendant's mental capacity was 
        significantly impaired, although the impairment was not such as 
        to constitute a defense to prosecution.
            ``(2) Duress.--The defendant was under unusual and 
        substantial duress, although not such duress as would 
        constitute a defense to prosecution.
            ``(3) Participation in offense minor.--The defendant was an 
        accomplice whose participation in the offense was relatively 
        minor.
The jury, or if there is no jury, the court, shall consider whether any 
other mitigating factor exists.
    ``(b) Aggravating Factors.--In determining whether a sentence of 
death is justified the jury, or if there is no jury, the court, shall 
consider each of the following aggravating factors and determine which, 
if any, exist:
            ``(1) 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 death was authorized by 
        statute.
            ``(2) Previous conviction of other serious offenses.--The 
        defendant has previously been convicted of two or more Federal 
        or State offenses, each punishable by a term of imprisonment of 
        more than one year, committed on different occasions, involving 
        controlled substances or the infliction of, or attempted 
        infliction of, serious bodily injury or death upon another 
        person.
            ``(3) Grave risk of death to additional persons.--The 
        defendant, in the commission of the offense, knowingly created 
        a grave risk of death to one or more persons in addition to the 
        victim of the offense.
            ``(4) Heinous, cruel, or depraved manner of commission.--
        The defendant committed the offense in an especially heinous, 
        cruel, or depraved manner.
            ``(5) Procurement of the offense by payment.--The defendant 
        procured the commission of the offense by payment, or promise 
        of payment, of anything of pecuniary value.
            ``(6) Commission of the offense for payment.--The defendant 
        committed the offense as consideration for the receipt, or in 
        the expectation of the receipt, of anything of pecuniary value.
            ``(7) Substantial planning and premeditation.--The 
        defendant committed the offense after substantial planning and 
        premeditation.
            ``(8) Vulnerability of victim.--The victim was particularly 
        vulnerable due to old age, youth, or infirmity.
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor 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, such attorney 
shall, a reasonable time before the trial, or before acceptance by the 
court of a plea of guilty, or at such time thereafter as the court may 
permit upon a showing of good cause, 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
            ``(2) setting forth the aggravating factor or factors, 
        including a factor or factors not specifically enumerated in 
        section 3592, that the Government, if the defendant is 
        convicted, proposes to prove as justifying a sentence of death.
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 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. Before such a hearing, no 
presentence report shall be prepared by the United States Probation 
Service, notwithstanding the provisions of the Federal Rules of 
Criminal Procedure. 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 the 
                section is necessary; or
            ``(3) before the court alone, upon motion of the defendant 
        and with the approval of the attorney for the Government.
A jury impaneled pursuant to paragraph (2) 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.--At the 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. Any other 
information relevant to a mitigating or aggravating factor may be 
presented by either the attorney for the Government or the defendant, 
regardless of its admissibility under the rules governing admission of 
evidence at criminal trials, except that information may be excluded if 
its probative value is outweighed by the danger of creating unfair 
prejudice, confusing the issues, or misleading the jury. The attorney 
for the Government and for 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 of imposing a sentence of death in the case. 
The attorney for the Government shall open the argument. The defendant 
shall be permitted to reply. The attorney for the Government shall then 
be permitted to reply in rebuttal. The burden of establishing the 
existence of an 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 with respect to the 
mitigating and aggravating factors concerning which information is 
received at the hearing, stating--
            ``(1) whether some mitigating factor required to be 
        considered under section 3592 exists;
            ``(2) whether some aggravating factor required to be 
        considered under section 3592 exists; and
            ``(3) which specific mitigating or aggravating factor or 
        factors exist.
A finding under paragraph (1) or (2) that some mitigating or 
aggravating factor exists must be unanimous. A finding under paragraph 
(3) that a specific mitigating or aggravating factor exists may be made 
by a majority of at least nine members of the jury.
    ``(e) Return of a Finding Concerning a Sentence of Death.--If, in 
the case of an offense described in section 3591, an aggravating factor 
required to be considered under section 3592 is found to exist, the 
jury, or if there is no jury, the court, shall then consider whether 
the aggravating factor or factors found to exist sufficiently outweigh 
all the mitigating 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 return a finding as to 
whether a sentence of death is justified. The jury or the court, 
regardless of its findings with respect to aggravating and mitigating 
factors, is never required to impose a death sentence and the jury 
shall be so instructed.
    ``(f) Special Precaution to Assure Against Discrimination.--In a 
hearing held before a jury, the court, before 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, national origin, creed, or sex of the 
defendant or of any victim. 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, national origin, creed, or sex of the defendant or any victim 
was not involved in reaching the juror's individual decision.
``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. Upon finding under section 3593(e) of this title that no 
aggravating factor required to be found exists or that a sentence of 
death is not justified, the court shall impose any sentence other than 
death that is authorized by law.
``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 procedure employed in the sentencing hearing; and
            ``(4) the special findings returned under section 3593(d) 
        of this title.
    ``(c) Decision and Disposition.--
            ``(1) If the court of appeals determines that--
                    ``(A) the sentence of death was not imposed under 
                the influence of passion, prejudice, or any other 
                arbitrary factor; and
                    ``(B) the information supports the special findings 
                of the existence of an aggravating factor or factors;
        it shall affirm the sentence.
            ``(2) In any other case, the court of appeals shall remand 
        the case for reconsideration under section 3593 or for 
        imposition of another authorized sentence as appropriate.
            ``(3) The court of appeals shall state in writing the 
        reasons for its disposition of an appeal of sentence of death 
        under this section.
``Sec. 3596. Implementation of sentence of death
    ``A person who has been sentenced to death pursuant to 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 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 so provide, and the sentence shall 
be implemented in the manner prescribed by such law. A sentence of 
death shall not be carried out upon a person who lacks the mental 
capacity to understand the death penalty and why it was imposed on that 
person, or upon a woman while she is pregnant.
``Sec. 3597. Use of State facilities
    ``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 as an official 
employed for the purpose, and shall pay the costs thereof in the amount 
approved by the Attorney General.''.
    (b) Clerical Amendment to Chapter Analysis.--Title 18, United 
States Code, is amended in the chapter analysis of part II, by adding 
the following new item after the item relating to chapter 227:

``228. Death penalty procedures.............................    3591''.

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