[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3936 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 3936

 To provide the penalty of death for federally prescribed kidnappings 
                   resulting in the death of a minor.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 2, 1994

  Mr. Duncan (for himself, Mr. Solomon, Mr. Baker of California, Mr. 
Canady, Mr. Frost, Mr. Doolittle, Mr. McHugh, and Mr. Levy) introduced 
    the following bill; which was referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To provide the penalty of death for federally prescribed kidnappings 
                   resulting in the death of a minor.

    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 ``Children's Protection Act of 1994''.

SEC. 2. DEATH PENALTY PROCEDURES.

    Title 18 of the United States Code is amended--
            (1) by adding after chapter 227 the following new chapter:

                ``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.
``3598. Appointment of counsel.
``3599. Collateral attack on judgment imposing sentence of death.
``Sec. 3591. Sentence of death
    ``A defendant who has been found guilty of an offense for which the 
penalty of death may be imposed under section 1201(g) of this title, if 
the defendant, as determined beyond a reasonable doubt at a hearing 
under section 3593 of this title--
            ``(1) caused the death of a kidnapping victim who had not 
        attained the age of 18 years intentionally, knowingly, or 
        through recklessness manifesting extreme indifference to human 
        life; or
            ``(2) caused, by the intentional infliction of serious 
        bodily injury, the death of a kidnapping victim who had not 
        attained the age of 18 years;
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. A person who has not 
attained the age of 18 years at the time of the offense or who is 
mentally retarded may not be sentenced to death under this chapter.
``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 to 
        appreciate the wrongfulness of his conduct or to conform his 
        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) Participation in offense minor.--The defendant's 
        participation in the offense, which was committed by another, 
        was relatively minor, regardless of whether the participation 
        was so minor as to constitute a defense to the charge.
            ``(4) No significant criminal history.--The defendant did 
        not have a significant history of other criminal conduct.
            ``(5) Disturbance.--The defendant committed the offense 
        under severe mental or emotional disturbance.
            ``(6) Victim's consent.--The victim consented to the 
        criminal conduct that resulted in the victim's death.
The jury, or if there is no jury, the court, shall consider whether any 
other aspect of the defendant's background, character or record or any 
other circumstance of the offense that the defendant may proffer as a 
mitigating factor exists.
    ``(b) Aggravating Factors for Death Occurring During Kidnapping.--
In determining whether a sentence of death is justified for an offense 
described in section 3591 of this title, 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) 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.
            ``(2) 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.
            ``(3) 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 
        the importation, manufacture, or distribution of a controlled 
        substance (as defined in section 102 of the Controlled 
        Substances Act or the infliction of, or attempted infliction 
        of, serious bodily injury or death upon another person.
            ``(4) Grave risk of death to additional persons.--The 
        defendant, in the commission of the offense or in escaping or 
        attempting to escape apprehension, knowingly created a grave 
        risk of death to one or more persons in addition to the victim 
        of the offense.
            ``(5) Heinous, cruel, or depraved manner of commission.--
        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.
            ``(6) Procurement of offense by payment.--The defendant 
        procured the commission of the offense by payment, or promise 
        of payment, of anything of pecuniary value.
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.--Whenever the Government intends to 
seek the death penalty for an offense described in section 3591 of this 
title, the attorney for the Government, 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, shall sign and file with the court, and serve on the defendant, 
a notice that the Government in the event of conviction will seek the 
sentence of death. The notice shall set forth the aggravating factor or 
factors enumerated in section 3592 of this title, and any other 
aggravating factor not specifically enumerated in section 3592 of this 
title, that the Government, if the defendant is convicted, will seek to 
prove as the basis for the death penalty. 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. 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.--When 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. Prior to such a hearing, no 
presentence report shall be prepared by the United States Probation 
Service, notwithstanding 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--
            ``(1) any matter relating to any mitigating factor listed 
        in section 3592 of this title and any other mitigating factor; 
        and
            ``(2) any matter relating to any aggravating factor listed 
        in section 3592 of this title for which notice has been 
        provided under subsection (a) of this section and (if 
        information is presented relating to such a listed factor) any 
        other aggravating factor for which notice has been so provided.
The information presented may include the trial transcript and 
exhibits. Any other information relevant to such mitigating or 
aggravating factors may be presented by either the Government or the 
defendant. The information presented by the Government in support of 
factors concerning the effect of the offense on the victim and the 
victim's family may include oral testimony, a victim impact statement 
that identifies the victim of the offense and the nature and extent of 
harm and loss suffered by the victim and the victim's family, and other 
relevant information. Information is admissible 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 in that case of imposing a sentence of death. 
The attorney for 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 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 evidence.
    ``(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 then consider whether the aggravating factor or factors found to 
exist under subsection (d) of this section outweigh any mitigating 
factor or factors. The jury, or if there is no jury, the court shall 
recommend a sentence of death if it unanimously finds at least one 
aggravating factor and no mitigating factor or if it finds one or more 
aggravating factors which outweigh any mitigating factors. In any other 
case, it shall not recommend a sentence of death. The jury shall be 
instructed that it must avoid any influence of sympathy, sentiment, 
passion, prejudice, or other arbitrary factors in its decision, and 
should make such a recommendation as the information warrants.
    ``(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 be 
influenced by prejudice or bias relating to the race, color, religion, 
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, religion, 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 prejudice or bias 
relating to the race, color, religion, 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, religion, national origin, or sex of the 
defendant or any victim may be.
``Sec. 3594. Imposition of a sentence of death
    ``Upon the recommendation under section 3593(e) of this title that 
a sentence of death be imposed, the court shall sentence the defendant 
to death. Otherwise the court shall impose a sentence, other than 
death, 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 the possibility of release.
``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 of the sentence must be filed 
within the time specified for the filing of a notice of appeal of the 
judgment of conviction. An appeal of the sentence 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) 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;
                    ``(B) the evidence and information support the 
                special findings of the existence of an aggravating 
                factor or factors; and
                    ``(C) the proceedings did not involve any other 
                prejudicial error requiring reversal of the sentence 
                that was properly preserved for and raised on appeal;
        it shall affirm the sentence.
            ``(2) In any other case, the court of appeals shall remand 
        the case for reconsideration under section 3593 of this title 
        or for imposition of another authorized sentence as 
        appropriate, except that the court shall not reverse a sentence 
        of death on the ground that an aggravating factor was invalid 
        or was not supported by the evidence and information if at 
        least one aggravating factor required to be considered under 
        section 3592 of this title remains which was found to exist and 
        the court, on the basis of the evidence submitted at trial and 
        the information submitted at the sentencing hearing, finds no 
        mitigating factor or finds that the remaining aggravating 
        factor or factors which were found to exist outweigh any 
        mitigating factors.
            ``(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 under 
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 so provide, and 
the sentence shall be implemented in the manner prescribed by such law.
    ``(b) Special Bars to Execution.--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.
    ``(c) Employees May Decline to Participate.--No employee of any 
State department of corrections, 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 execution carried out under this 
section if such participation is contrary to the moral or religious 
convictions of the employee. For purposes of this subsection, the term 
`participate in any execution' includes personal preparation of the 
condemned individual and the apparatus used for the execution, and 
supervision of the activities of other personnel in carrying out such 
activities.
``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 an official 
employs for the purpose, and shall pay the costs thereof in an amount 
approved by the Attorney General.
``Sec. 3598. Appointment of counsel
    ``(a) Representation of Indigent Defendants.--Notwithstanding any 
other provision of law, this section shall govern the appointment of 
counsel for any defendant against whom a sentence of death is sought, 
or on whom a sentence of death has been imposed, for an offense against 
the United States, where the defendant is or becomes financially unable 
to obtain adequate representation. Such a defendant shall be entitled 
to appointment of counsel from the commencement of trial proceedings 
until one of the conditions specified in section 3599(b) of this title 
has occurred.
    ``(b) Representation Before Finality of Judgment.--A defendant 
within the scope of this section shall have counsel appointed for trial 
representation as provided in section 3005 of this title. At least one 
counsel so appointed shall continue to represent the defendant until 
the conclusion of direct review of the judgment, unless replaced by the 
court with other qualified counsel.
    ``(c) Representation After Finality of Judgment.--When a judgment 
imposing a sentence of death has become final through affirmance by the 
Supreme Court on direct review, denial of certiorari by the Supreme 
Court on direct review, or expiration of the time for seeking direct 
review in the court of appeals or the Supreme Court, the Government 
shall promptly notify the district court that imposed the sentence. Not 
later than 10 days after receipt of such notice, the district court 
shall proceed to make a determination whether the defendant is eligible 
under this section for appointment of counsel for subsequent 
proceedings. On the basis of the determination, the court shall issue 
an order--
            ``(1) appointing one or more counsel to represent the 
        defendant upon a finding that the defendant is financially 
        unable to obtain adequate representation and wishes to have 
        counsel appointed or is unable competently to decide whether to 
        accept or reject appointment of counsel;
            ``(2) finding, after a hearing if necessary, that the 
        defendant rejected appointment of counsel and made the decision 
        with an understanding of its legal consequences; or
            ``(3) denying the appointment of counsel upon a finding 
        that the defendant is financially able to obtain adequate 
        representation.
Counsel appointed pursuant to this subsection shall be different from 
the counsel who represented the defendant at trial and on direct review 
unless the defendant and counsel request a continuation or renewal of 
the earlier representation.
    ``(d) Standards for Competence of Counsel.--In relation to a 
defendant who is entitled to appointment of counsel under this section, 
at least one counsel appointed for trial representation must have been 
admitted to the bar for at least five years and have at least three 
years of experience in the trial of felony cases in the federal 
district courts. If new counsel is appointed after judgment, at least 
one counsel so appointed must have been admitted to the bar for at 
least five years and have at least three years of experience in the 
litigation of felony cases in the Federal courts of appeals or the 
Supreme Court. The court, for good cause, may appoint counsel who does 
not meet these standards, but whose background, knowledge, or 
experience would otherwise enable him or her to properly represent the 
defendant, with due consideration of the seriousness of the penalty and 
the nature of the litigation.
    ``(e) Applicability of Criminal Justice Act.--Except as otherwise 
provided in this section, section 3006A of this title applies to 
appointments under this section.
    ``(f) Claims of Ineffectiveness of Counsel.--The ineffectiveness or 
incompetence of counsel during proceedings on a motion under section 
2255 of title 28, in a capital case shall not be a ground for relief 
from the judgment or sentence in any proceeding. This limitation shall 
not preclude the appointment of different counsel at any stage of the 
proceedings.
``Sec. 3599. Collateral attack on judgment imposing sentence of death
    ``(a) Time for Making Section 2255 Motion.--In a case in which 
sentence of death has been imposed, and the judgment has become final 
as described in section 3598(c) of this title, a motion in the case 
under section 2255 of title 28, must be filed not later than 90 days 
after the issuance of the order relating to appointment of counsel 
under section 3598(c) of this title. The court in which the motion is 
filed, for good cause shown, may extend the time for filing for a 
period not exceeding 60 days. A motion described in this section shall 
have priority over all noncapital matters in the district court, and in 
the court of appeals on review of the district court's decision.
    ``(b) Stay of Execution.--The execution of a sentence of death 
shall be stayed in the course of direct review of the judgment and 
during the litigation of an initial motion in the case under section 
2255 of title 28. The stay shall run continuously following imposition 
of the sentence, and shall expire if--
            ``(1) the defendant fails to file a motion under section 
        2255 of title 28, within the time specified in subsection (a) 
        of this section, or fails to make a timely application for 
        court of appeals review following the denial of such motion by 
        a district court; or
            ``(2) upon completion of district court and court of 
        appeals review under section 2255 of title 28, the motion under 
        that section is denied and--
                    ``(A) the time for filing a petition for certiorari 
                has expired and no petition has been filed;
                    ``(B) a timely petition for certiorari was filed 
                and the Supreme Court denied the petition; or
                    ``(C) a timely petition for certiorari was filed 
                and upon consideration of the case, the Supreme Court 
                disposed of it in a manner that left the capital 
                sentence undisturbed; or
            ``(3) before a district court, in the presence of counsel 
        and after having been advised of the consequences of that 
        waiver, the defendant waives the right to file a motion under 
        section 2255 of title 28.
    ``(c) Finality of the Decision on Review.--If one of the conditions 
specified in subsection (b) of this section has occurred, no court 
thereafter shall have the authority to enter a stay of execution or 
grant relief in the case unless--
            ``(1) the basis for the stay and request for relief is a 
        claim not presented in earlier proceedings;
            ``(2) the failure to raise the claim was--
                    ``(A) the result of governmental action in 
                violation of the Constitution or laws of the United 
                States;
                    ``(B) the result of the Supreme Court recognition 
                of a new Federal right that is retroactively 
                applicable; or
                    ``(C) based on a factual predicate that could not 
                have been discovered through the exercise of reasonable 
                diligence in time to present the claim in earlier 
                proceedings; and
            ``(3) the facts underlying the claim would be sufficient, 
        if proven, to undermine the court's confidence in the 
        determination of guilt with respect to the offense or offenses 
        for which the death penalty was imposed.''; and
            (2) in the table of chapters at the beginning of part II, 
        by adding the following new item after the item relating to 
        chapter 227:

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

SEC. 3. CONFORMING AMENDMENT RELATING TO KIDNAPPING.

    Section 1201(g)(1) of title 18, United States Code, is amended by 
inserting ``to the penalty of death if the death of the victim results 
and, in any other case,'' after ``shall be subject''.

                                 <all>

HR 3936 IH----2
HR 3936 IH----3