[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4035 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4035

To establish constitutional procedures for the imposition of the death 
                                penalty.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 15, 1994

Mr. Edwards of California (for himself and Mr. Schumer) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To establish constitutional procedures for the imposition of the death 
                                penalty.

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

SECTION 1. CONSTITUTIONAL PROCEDURES FOR THE IMPOSITION OF THE SENTENCE 
              OF DEATH.

    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.
``3598. Special provisions for Indian country.
``Sec. 3591. Sentence of death
    ``A defendant who has been found guilty of--
            ``(1) an offense described in section 794 or section 2381 
        of this title; or
            ``(2) any other offense 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 of violence, 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 (as defined in section 2 of title 18 of the United 
        States Code) 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) Equally culpable defendants.--Another defendant or 
        defendants, equally culpable in the crime, will not be punished 
        by death.
            ``(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 for Espionage and Treason.--In 
determining whether a sentence of death is justified for an offense 
described in section 3591(1), 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) Prior espionage or treason offense.--The defendant 
        has previously been convicted of another offense involving 
        espionage or treason for which a sentence of either life 
        imprisonment or death was authorized by law.
            ``(2) Grave risk to national security.--In the commission 
        of the offense the defendant knowingly created a grave risk of 
        substantial danger to the national security.
            ``(3) Grave risk of death.--In the commission of the 
        offense the defendant knowingly created a grave risk of death 
        to another person.
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor for which notice has been given exists.
    ``(c) Aggravating Factors for Homicide.--In determining whether a 
sentence of death is justified for an offense described in section 
3591(2), 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 by explosives), section 1118 (prisoners 
        serving life term), section 1201 (kidnapping), 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) Previous conviction of violent felony involving 
        firearm.--For any offense, other than an offense for which a 
        sentence of death is sought on the basis of section 924(c) of 
        this title, as amended by this Act, the defendant has 
        previously been convicted of a Federal or State offense 
        punishable by a term of imprisonment of more than one year, 
        involving the use or 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.
            ``(14) High public officials.--The defendant committed the 
        offense against--
                    ``(A) the President of the United States, the 
                President-elect, the Vice President, the Vice-
                President-elect, the Vice-President-designate, or, if 
                there is no Vice President, the officer next in order 
                of succession to the office of the President of the 
                United States, or any person who is acting as President 
                under the Constitution and laws of the United States;
                    ``(B) a Chief of State, head of government, or the 
                political equivalent, of a foreign nation;
                    ``(C) a foreign official listed in section 
                1116(b)(3)(A) of this title, if the official is in the 
                United States on official business; or
                    ``(D) a Federal public servant who is a judge, a 
                law enforcement officer, or an employee of a United 
                States penal or correctional institution--
                            ``(i) while he or she is engaged in the 
                        performance of his or her official duties;
                            ``(ii) because of the performance of his or 
                        her official duties; or
                            ``(iii) because of his or her status as a 
                        public servant.
                For purposes of this subparagraph, a `law enforcement 
                officer' is a public servant authorized by law or by a 
                Government agency or Congress to conduct or engage in 
                the prevention, investigation, or prosecution or 
                adjudication of an offense, and includes those engaged 
                in corrections, parole, or probation functions.
            ``(15) prior conviction of sexual assault or child 
        molestation.--In the case of an offense under chapter 109A 
        (sexual abuse) or chapter 110 (sexual abuse of children), the 
        defendant has previously been convicted of a crime of sexual 
        assault or crime of child molestation.
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, 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 
notice to include any aggravating factor that is not an element of the 
underlying offense. The court may also 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) and the 
defendant is found guilty of or pleads guilty to an offense described 
in section 3591, 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) 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, 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. 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 for which notice has 
been provided under subsection (a). 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 found to exist and any 
other aggravating factor for which notice has been provided under 
subsection (a) found to exist. A finding with respect to a mitigating 
factor may be made by 1 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 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, in 
the case of--
            ``(1) an offense described in section 3591(1), an 
        aggravating factor required to be considered under section 
        3592(b) is found to exist; or
            ``(2) an offense described in section 3591(2), an 
        aggravating factor required to be considered under section 
        3592(c) 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 the 
defendant should be sentenced to death, to life imprisonment without 
possibility of release, or to some other 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 and the jury shall be so instructed.
    ``(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), 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), 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 recommendation under section 3593(e) that the defendant 
should be sentenced to death or life imprisonment without possibility 
of release, the court shall sentence the defendant accordingly. 
Otherwise, the court shall impose any lesser sentence 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 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 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).
    ``(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.
            ``(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 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' 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.
``Sec. 3598. Special provisions for Indian country
    ``Notwithstanding sections 1152 and 1153, no person subject to the 
criminal jurisdiction of an Indian tribal government shall be subject 
to a capital sentence under this chapter for any offense the Federal 
jurisdiction for which is predicated solely on Indian country as 
defined in section 1151 of this title, and which has occurred within 
the boundaries of such Indian country, unless the governing body of the 
tribe has elected that this chapter have effect over land and persons 
subject to its criminal jurisdiction.''.
    (b) Amendment of Chapter Analysis.--The chapter analysis 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 4035 IH----2