[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1196 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                S. 1196

   To amend the Immigration and Nationality Act to increase criminal 
     penalties for persons smuggling aliens into the United States.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 1 (legislative day, June 30), 1993

  Mr. Simpson introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act to increase criminal 
     penalties for persons smuggling aliens into the United States.

    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 ``Alien Smuggling Control Act of 
1993''.

                      TITLE I--CRIMINAL PENALTIES

SEC. 101. INCREASED PENALTIES FOR ALIEN SMUGGLING.

    Section 274(a) of the Immigration and Nationality Act (8 U.S.C. 
1324(a)) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``or'' at the end of subparagraph 
                (C);
                    (B) by striking the comma at the end of 
                subparagraph (D) and all that follows through the 
                period and inserting ``; or''; and
                    (C) by adding at the end the following:
            ``(E) engages in any conspiracy to commit any of the 
        preceding acts, or aids or abets the commission of any of the 
        preceding acts,
shall be fined under title 18, United States Code, and shall be 
imprisoned not less than 3 nor more than 10 years, for each alien with 
respect to whom any violation of this paragraph occurs.''; and
            (2) by adding at the end the following new paragraphs:
    ``(3) Any person who commits an act described in paragraph (1) who 
willfully subjects any alien to a substantial risk of death or serious 
bodily harm shall be subject to a term of imprisonment of not less than 
3 nor more than 10 years in addition to any term of imprisonment 
imposed under that paragraph.
    ``(4) Any person who in the perpetration of, or in the attempt to 
perpetrate, any violation of paragraph (1), causes the death of an 
alien shall be subject to the penalty of death, or life imprisonment, 
subject to appropriate procedures under chapter 228 of title 18, United 
States Code.
    ``(5) Any person who hires for employment an alien--
            ``(A) knowing that such alien is an unauthorized alien (as 
        defined in section 274A(h)(3)), and
            ``(B) knowing that such alien has been brought into the 
        United States in violation of this subsection,
shall be fined under title 18, United States Code, and shall be 
imprisoned for not less than 2 nor more than 5 years.''.

SEC. 102. SMUGGLING ALIENS FOR COMMISSION OF CRIMES.

    Section 274(a)(2) of the Immigration and Nationality Act (8 U.S.C. 
1324(a)(2)) is amended--
            (1) in subparagraph (B)--
                    (A) by striking ``or'' at the end of clause (ii);
                    (B) by redesignating clause (iii) as clause (iv); 
                and
                    (C) by inserting after clause (ii) the following:
                            ``(iii) an offense committed with the 
                        intent that the alien unlawfully brought into 
                        the United States will commit an offense 
                        against the United States punishable for more 
                        than 1 year, including violations of or 
                        attempted violations of or aiding and abetting 
                        violations of or conspiring to violate the 
                        Controlled Substances Act (21 U.S.C. 802) or 
                        laws against prostitution, importation of 
                        aliens for immoral purposes, trafficking in 
                        firearms, money laundering, gang activities, 
                        kidnapping or ransom demands, fraudulent 
                        documents, or extortion, the smuggling of known 
                        or suspected terrorists or persons involved in 
                        organized crime,''; and
            (2) at the end thereof, by striking ``be fined'' and all 
        that follows through the period and inserting the following: 
        ``be fined under title 18, United States Code, and shall be 
        imprisoned not less than 3 nor more than 10 years.''.

SEC. 103. ADDING ALIEN SMUGGLING TO RICO.

    Section 1961(1) of title 18, United States Code, is amended--
            (1) by striking ``or'' after ``law of the United States,'';
            (2) by inserting ``or'' at the end of subparagraph (E); and
            (3) by adding at the end the following:
            ``(F) any act in violation of section 274 of the 
        Immigration and Nationality Act.''.

SEC. 104. EXPANDED FORFEITURE FOR SMUGGLING OR HARBORING ILLEGAL 
              ALIENS.

    Subsection 274(b) of the Immigration and Nationality Act (8 U.S.C. 
1324(b)) is amended--
            (1) by amending paragraph (1) to read as follows:
    ``(b) Seizure and Forfeiture.--(1) Any property, real or personal, 
which facilitates or is intended to facilitate, or which has been used 
in or is intended to be used in the commission of a violation of 
subsection (a) or of sections 274A(a)(1) or 274A(a)(2), or which 
constitutes or is derived from or traceable to the proceeds obtained 
directly or indirectly from a commission of a violation of subsection 
(a), shall be subject to seizure and forfeiture, except that--
            ``(A) no property, used by any person as a common carrier 
        in the transaction of business as a common carrier shall be 
        forfeited under the provisions of this section unless it shall 
        appear that the owner or other person in charge of such 
        property was a consenting party or privy to the illegal act;
            ``(B) no property shall be forfeited under the provisions 
        of this section by reason of any act or omission established by 
        the owner thereof to have been committed or omitted by any 
        person other than such owner while such property was unlawfully 
        in the possession of a person other than the owner in violation 
        of the criminal laws of the United States or of any State; and
            ``(C) no property shall be forfeited under this paragraph 
        to the extent of an interest of any owner, by reason of any act 
        or omission established by that owner to have been committed or 
        omitted without the knowledge or consent of the owner, unless 
        such action or omission was committed by an employee or agent 
        of the owner, and facilitated or was intended to facilitate, or 
        was used in or intended to be used in, the commission of a 
        violation of subsection (a) or of section 274A(a)(1) or 
        274A(a)(2) which was committed by the owner or which intended 
        to further the business interests of the owner, or to confer 
        any other benefit upon the owner.''.
            (2) in paragraph (2)--
                    (A) by striking ``conveyance'' both places it 
                appears and inserting in lieu thereof ``property''; and
                    (B) by striking ``is being used in'' and inserting 
                in lieu thereof ``is being used in, is facilitating, 
                has facilitated, or was intended to facilitate'';
            (3) in paragraphs (4) and (5) by striking ``a conveyance'' 
        and ``conveyance'' each place such phrase or word appears and 
        inserting in lieu thereof ``property''; and
            (4) in paragraph (4) by--
                    (A) striking ``or'' at the end of subparagraph (C),
                    (B) by striking the period at the end of 
                subparagraph (D) and inserting ``; or'', and
                    (C) by inserting at the end the following new 
                subparagraph:
                    ``(E) transfer custody and ownership of forfeited 
                property to any Federal, State, or local agency 
                pursuant to the Tariff Act of 1930, as amended (19 
                U.S.C. 1616a(c)).''.

SEC. 105. EXPANSION IN DEFINITION OF ``AGGRAVATED FELONY''.

    (a) Expansion in Definition.--Section 101(a)(43) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)(43)) is amended to read as 
follows:
            ``(43) The term `aggravated felony' means--
                    ``(A) murder;
                    ``(B) any illicit trafficking in any controlled 
                substance (as defined in section 102 of the Controlled 
                Substances Act), including any drug trafficking crime 
                as defined in section 924(c) of title 18, United States 
                Code;
                    ``(C) any illicit trafficking in any firearms or 
                destructive devices as defined in section 921 of title 
                18, United States Code, or in explosive materials as 
                defined in section 841(c) of title 18, United States 
                Code;
                    ``(D) any offense described in (i) section 1956 of 
                title 18, United States Code (relating to laundering of 
                monetary instruments) or (ii) section 1957 of such 
                title (relating to engaging in monetary transactions in 
                property derived from specific unlawful activity) if 
                the value of the funds exceeded $100,000;
                    ``(E) any offense described in--
                            ``(i) subsections (h) or (i) of section 
                        842, title 18, United States Code, or 
                        subsection (d), (e), (f), (g), (h), or (i) of 
                        section 844 of title 18, United States Code 
                        (relating to explosive materials offenses),
                            ``(ii) paragraph (1), (2), (3), (4), or (5) 
                        of section 922(g), or section 922(j), section 
                        922(n), section 922(o), section 922(p), section 
                        922(r), section 924(b), or section 924(h) of 
                        title 18, United States Code (relating to 
                        firearms offenses), or
                            ``(iii) section 5861 of title 26, United 
                        States Code (relating to firearms offenses);
                    ``(F) any crime of violence (as defined in section 
                16 of title 18, United States Code, not including a 
                purely political offense) for which the term of 
                imprisonment imposed (regardless of any suspension of 
                such imprisonment) is at least 5 years;
                    ``(G) any theft offense (including receipt of 
                stolen property) or any burglary offense, where a 
                sentence of 5 years imprisonment or more may be 
                imposed;
                    ``(H) any offense described in section 875, section 
                876, section 877, or section 1202 of title 18, United 
                States Code (relating to the demand for or receipt of 
                ransom);
                    ``(I) any offense described in section 2251, 
                section 2251A or section 2252 of title 18, United 
                States Code (relating to child pornography);
                    ``(J) any offense described in--
                            ``(i) section 1962 of title 18, United 
                        States Code (relating to racketeer influenced 
                        corrupt organizations), or
                            ``(ii) section 1084 (if it is a second or 
                        subsequent offense) or section 1955 of such 
                        title (relating to gambling offenses),
                where a sentence of 5 years imprisonment or more may be 
                imposed;
                    ``(K) any offense relating to commercial bribery, 
                counterfeiting, forgery or trafficking in vehicles 
                whose identification numbers have been altered, where a 
                sentence of 5 years imprisonment or more may be 
                imposed;
                    ``(L) any offense--
                            ``(i) relating to the owning, controlling, 
                        managing or supervising of a prostitution 
                        business,
                            ``(ii) described in section 2421, section 
                        2422, or section 2423 of title 18, United 
                        States Code (relating to transportation for the 
                        purpose of prostitution) for commercial 
                        advantage, or
                            ``(iii) described in sections 1581 through 
                        1585, or section 1588, of title 18, United 
                        States Code (relating to peonage, slavery, and 
                        involuntary servitude);
                    ``(M) any offense relating to perjury or 
                subornation of perjury where a sentence of 5 years 
                imprisonment or more may be imposed;
                    ``(N) any offense described in--
                            ``(i) section 793 (relating to gathering or 
                        transmitting national defense information), 
                        section 798 (relating to disclosure of 
                        classified information), section 2153 (relating 
                        to sabotage) or section 2381 or section 2382 
                        (relating to treason) of title 18, United 
                        States Code, or
                            ``(ii) section 421 of title 50, United 
                        States Code (relating to protecting the 
                        identity of undercover intelligence agents);
                    ``(O) any offense--
                            ``(i) involving fraud or deceit where the 
                        loss to the victim or victims exceeded 
                        $200,000; or
                            ``(ii) described in section 7201 of title 
                        26, United States Code (relating to tax 
                        evasion), where the tax loss to the Government 
                        exceeds $200,000;
                    ``(P) any offense described in section 274(a)(1) of 
                title 18, United States Code (relating to alien 
                smuggling) for the purpose of commercial advantage;
                    ``(Q) any violation of section 1546(a) of title 18, 
                United States Code (relating to document fraud), for 
                the purpose of commercial advantage; or
                    ``(R) any offense relating to failing to appear 
                before a court pursuant to a court order to answer to 
                or dispose of a charge of a felony, where a sentence of 
                2 years or more may be imposed;
        or any attempt or conspiracy to commit any such act. Such term 
        applies to offenses described in this paragraph whether in 
        violation of Federal or State law and applies to such offenses 
        in violation of the laws of a foreign country for which the 
        term of imprisonment was completed within the previous 15 
        years.''.
    (b) Effective Date.--The amendments made by this section shall 
apply to all convictions entered before, on, or after the date of 
enactment of this Act.

SEC. 106. DEPORTATION PROCEDURES FOR CERTAIN CRIMINAL ALIENS WHO ARE 
              NOT PERMANENT RESIDENTS.

    (a) Elimination of Administrative Hearing for Certain Criminal 
Aliens.--Section 242A of the Immigration and Nationality Act (8 U.S.C. 
1252a) is amended by adding at the end the following:
    ``(c) Deportation of Aliens Who Are Not Permanent Residents.--
            ``(1) Notwithstanding section 242, and subject to paragraph 
        (5), the Attorney General may issue a final order of 
        deportation against any alien described in paragraph (2) whom 
        the Attorney General determines to be deportable under section 
        241(a)(2)(A)(iii) (relating to conviction of an aggravated 
        felony).
            ``(2) An alien is described in this paragraph if the 
        alien--
                    ``(A) was not lawfully admitted for permanent 
                residence at the time that proceedings under this 
                section commenced, or
                    ``(B) had permanent resident status on a 
                conditional basis (as described in section 216) at the 
                time that proceedings under this section commenced.
            ``(3) The Attorney General may delegate the authority in 
        this section to the Commissioner or to any District Director of 
        the Service.
            ``(4) No alien described in this section shall be eligible 
        for--
                    ``(A) any relief from deportation that the Attorney 
                General may grant in his discretion, or
                    ``(B) relief under section 243(h).
            ``(5) The Attorney General may not execute any order 
        described in paragraph (1) until 14 calendar days have passed 
        from the date that such order was issued, in order that the 
        alien has an opportunity to apply for judicial review under 
        section 106.''.
    (b) Limited Judicial Review.--Section 106 of the Immigration and 
Nationality Act (8 U.S.C. 1105a) is amended--
            (1) in the first sentence of subsection (a), by inserting 
        ``or pursuant to section 242A'' after ``under section 242(b)'';
            (2) in subsection (a)(1) and subsection (a)(3), by 
        inserting ``(including an alien described in section 242A)'' 
        after ``aggravated felony''; and
            (3) by adding at the end the following new subsection:
    ``(d) Notwithstanding subsection (c), a petition for review or for 
habeas corpus on behalf of an alien described in section 242A(c) may 
only challenge whether the alien is in fact an alien described in such 
section, and no court shall have jurisdiction to review any other 
issue.''.
    (c) Technical and Conforming Changes.--Section 242A of the 
Immigration and Nationality Act (8 U.S.C. 1252a) is amended as follows:
            (1) In subsection (a)--
                    (A) by striking ``(a) In General.--'' and inserting 
                the following:
    ``(b) Deportation of Permanent Resident Aliens.--
            ``(1) in general.--''; and
                    (B) by inserting in the first sentence ``permanent 
                resident'' after ``correctional facilities for'';
            (2) In subsection (b)--
                    (A) by striking ``(b) Implementation.--'' and 
                inserting ``(2) implementation.--''; and
                    (B) by striking ``respect to an'' and inserting 
                ``respect to a permanent resident'';
            (3) By striking out subsection (c);
            (4) In subsection (d)--
                    (A) by striking ``(d) Expedited Proceedings.--(1)'' 
                and inserting ``(3) expedited proceedings.--(A)'';
                    (B) by inserting ``permanent resident'' after ``in 
                the case of any''; and
                    (C) by striking ``(2)'' and inserting ``(B)'';
            (5) In subsection (e)--
                    (A) by striking ``(e) Review.--(1)'' and inserting 
                ``(4) review.--(A)'';
                    (B) by striking the second sentence; and
                    (C) by striking ``(2)'' and inserting ``(B)''.
            (6) By inserting after the section heading the following 
        new subsection:
    ``(a) Presumption of Deportability.--An alien convicted of an 
aggravated felony shall be conclusively presumed to be deportable from 
the United States.''.
            (7) The heading of such section is amended to read as 
        follows:

 ``expedited deportation of aliens convicted of committing aggravated 
                              felonies''.

    (d) Effective Date.--The amendments made by this section shall 
apply to all aliens against whom deportation proceedings are initiated 
after the date of enactment of this Act.

SEC. 107. JUDICIAL DEPORTATION.

    (a) Judicial Deportation.--Section 242A of the Immigration and 
Nationality Act (8 U.S.C. 1252a) is amended by inserting at the end the 
following new subsection:
    ``(d) Judicial Deportation.--
            ``(1) Authority.--Notwithstanding any other provision of 
        this Act, a United States district court shall have 
        jurisdiction to enter a judicial order of deportation at the 
        time of sentencing against an alien whose criminal conviction 
        causes such alien to be deportable under section 
        241(a)(2)(A)(iii) (relating to conviction of an aggravated 
        felony), if such an order has been requested prior to 
        sentencing by the United States Attorney with the concurrence 
        of the Commissioner.
            ``(2) Procedure.--
                    ``(A) The United States Attorney shall provide 
                notice of intent to request judicial deportation 
                promptly after the entry in the record of an 
                adjudication of guilt or guilty plea. Such notice shall 
                be provided to the court, to the alien, and to the 
                alien's counsel of record.
                    ``(B) Notwithstanding section 242B, the United 
                States Attorney, with the concurrence of the 
                Commissioner, shall file at least 20 days prior to the 
                date set for sentencing a charge containing factual 
                allegations regarding the alienage of the defendant and 
                satisfaction by the defendant of the definition of 
                aggravated felony.
                    ``(C) If the court determines that the defendant 
                has presented substantial evidence to establish prima 
                facie eligibility for relief from deportation under 
                section 212(c), the Commissioner shall provide the 
                court with a recommendation and report regarding the 
                alien's eligibility for relief under such section. The 
                court shall either grant or deny the relief sought.
                    ``(D)(i) The alien shall have a reasonable 
                opportunity to examine the evidence against him or her, 
                to present evidence on his or her own behalf, and to 
                cross-examine witnesses presented by the Government.
                    ``(ii) The court, for the purposes of determining 
                whether to enter an order described in paragraph (1), 
                shall only consider evidence that would be admissible 
                in proceedings conducted pursuant to section 242(b).
                    ``(iii) Nothing in this subsection shall limit the 
                information a court of the United States may receive or 
                consider for the purposes of imposing an appropriate 
                sentence.
                    ``(iv) The court may order the alien deported if 
                the Attorney General demonstrates by clear and 
                convincing evidence that the alien is deportable under 
                this Act.
            ``(3) Notice, appeal, and execution of judicial order of 
        deportation.--
                    ``(A)(i) A judicial order of deportation or denial 
                of such order may be appealed by either party to the 
                court of appeals for the circuit in which the district 
                court is located.
                    ``(ii) Except as provided in clause (iii), such 
                appeal shall be considered consistent with the 
                requirements described in section 106.
                    ``(iii) Upon execution by the defendant of a valid 
                waiver of the right to appeal the conviction on which 
                the order of deportation is based, the expiration of 
                the period described in section 106(a)(1), or the final 
                dismissal of an appeal from such conviction, the order 
                of deportation shall become final and shall be executed 
                at the end of the prison term in accordance with the 
                terms of the order.
                    ``(B) As soon as is practicable after entry of a 
                judicial order of deportation, the Commissioner shall 
                provide the defendant with written notice of the order 
                or deportation, which shall designate the defendant's 
                country of choice for deportation and any alternate 
                country pursuant to section 243(a).
            ``(4) Denial of judicial order.--Denial of a request for a 
        judicial order of deportation shall not preclude the Attorney 
        General from initiating deportation proceedings pursuant to 
        section 242 upon the same ground of deportability or upon any 
        other ground of deportability provided under section 241(a).''.
    (b) Technical and Conforming Changes.--The ninth sentence of 
section 242(b) of the Immigration and Nationality Act (8 U.S.C. 
1252(b)) is amended by striking out ``The'' and inserting in lieu 
thereof, ``Except as provided in section 242A(d), the''.
    (c) Effective Date.--The amendments made by this section shall 
apply to all aliens whose adjudication of guilt or guilty plea is 
entered in the record after the date of enactment of this Act.

SEC. 108. RESTRICTING DEFENSES TO DEPORTATION FOR CERTAIN CRIMINAL 
              ALIENS.

    (a) Defenses Based on Seven Years of Permanent Residence.--The last 
sentence of section 212(c) of the Immigration and Nationality Act (8 
U.S.C. 1182(c)) is amended by striking out ``has served for such felony 
or felonies'' and all that follows through the period and inserting in 
lieu thereof ``has been sentenced for such felony or felonies to a term 
of imprisonment of at least 5 years, provided that the time for 
appealing such conviction or sentence has expired and the sentence has 
become final.''.
    (b) Defenses Based on Withholding of Deportation.--Section 
243(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1253(h)(2)) 
is amended by--
            (1) striking out the final sentence and inserting in lieu 
        thereof the following new subparagraph:
                    ``(E) the alien has been convicted of an aggravated 
                felony.''; and
            (2) striking out the ``or'' at the end of subparagraph (C) 
        and inserting ``or'' at the end of subparagraph (D).

SEC. 109. ENHANCING PENALTIES FOR FAILING TO DEPART, OR REENTERING, 
              AFTER FINAL ORDER OF DEPORTATION.

    (a) Failure To Depart.--Section 242(e) of the Immigration and 
Nationality Act (8 U.S.C. 1252(e)) is amended--
            (1) by striking out ``paragraph (2), (3), or 4 of'' the 
        first time it appears, and
            (2) by striking out ``shall be imprisoned not more than ten 
        years'' and inserting in lieu thereof, ``shall be imprisoned 
        not more than four years, or shall be imprisoned not more than 
        ten years if the alien is a member of any of the classes 
        described in paragraph (1)(E), (2), (3), or (4) of section 
        241(a).''.
    (b) Reentry.--Section 276(b) of the Immigration and Nationality Act 
(8 U.S.C. 1326(b)) is amended--
            (1) in paragraph (1), by (A) inserting after ``commission 
        of'' the following: ``three or more misdemeanors or'', and (B) 
        striking out ``5'' and inserting in lieu thereof ``10'',
            (2) in paragraph (2), by striking out ``15'' and inserting 
        in lieu thereof ``20'', and
            (3) by adding at the end the following sentence:
``For the purposes of this subsection, the term `deportation' shall 
include any agreement where an alien stipulates to deportation during a 
criminal trial under either Federal or State law.''.
    (c) Collateral Attacks on Underlying Deportation Order.--Section 
276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended 
by inserting after subsection (b) the following new subsection:
    ``(c) In any criminal proceeding under this section, no alien may 
challenge the validity of the deportation order described in subsection 
(a)(1) or subsection (b) unless the alien demonstrates--
            ``(1) that the alien exhausted the administrative remedies 
        (if any) that may have been available to seek relief against 
        such order,
            ``(2) that the deportation proceedings at which such order 
        was issued improperly deprived the alien of the opportunity for 
        judicial review, and
            ``(3) that the entry of such order was fundamentally 
        unfair.''.

SEC. 110. MISCELLANEOUS AND TECHNICAL CHANGES.

    (a) Form of Deportation Hearings.--The second sentence of section 
242(b) of the Immigration and Nationality Act (8 U.S.C. 1252(b)) is 
amended by inserting before the period the following: ``; except that 
nothing in this subsection shall preclude the Attorney General from 
authorizing proceedings by electronic or telephonic media (with or 
without the consent of the alien) or, where waived or agreed to by the 
parties, in the absence of the alien.''.
    (b) Construction of Expedited Deportation Requirements.-- No 
amendment made by this Act and nothing in section 242(i) of the 
Immigration and Nationality Act (8 U.S.C. 1252(i)), shall be construed 
to create any right or benefit, substantive or procedural, which is 
legally enforceable by any party against the United States, its 
agencies, its officers or any other person.

                          TITLE II--PROCEDURES

SEC. 201. DEATH PENALTY PROCEDURES.

    (a) Addition of Chapter to Title 18, United States Code.--Title 18, 
United States Code, is amended by inserting 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.
``3600. Application in Indian country.
``Sec. 3591. Sentence of death
    ``A defendant who has been found guilty of an offense described in 
section 274(a)(4) of the Immigration and Nationality Act, as determined 
beyond a reasonable doubt at a hearing under section 3593, 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 or who is mentally retarded.
``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 Homicide.--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 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); or
                    ``(B) has previously been convicted of a Federal or 
                State offense punishable by a term of imprisonment of 
                more than 1 year, involving the use of attempted or 
                threatened use of a firearm (as defined in section 
                921), 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 2 or more Federal or 
        State offenses, each punishable by a term of imprisonment of 
        more than 1 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 (21 U.S.C. 802)) 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.
            ``(7) Commission of the offense for pecuniary gain.--The 
        defendant committed the offense as consideration for the 
        receipt, or in the expectation of the receipt, of anything of 
        pecuniary value.
            ``(8) Substantial planning and premeditation.--The 
        defendant committed the offense after substantial planning and 
        premeditation.
            ``(9) Vulnerability of victim.--The victim was particularly 
        vulnerable due to old age, youth, or infirmity.
``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, 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, and any other aggravating factor not 
specifically enumerated in section 3592, 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) and the 
defendant is found guilty of 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. 
Prior to 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--
            ``(1) any matter relating to any mitigating factor listed 
        in section 3592 and any other mitigating factor; and
            ``(2) any matter relating to any aggravating factor listed 
        in section 3592 for which notice has been provided under 
        subsection (a) 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 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 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 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 an offense described in section 3591, an aggravating factor 
required to be considered under section 3592(b) 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) 
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, 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 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), 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) 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).
    ``(c) Decision and Disposition.--
            ``(1) Affirmance.--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) Remand.--In a case in which the sentence is not 
        affirmed under paragraph (1), the court of appeals shall remand 
        the case for reconsideration under section 3593 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 
        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) Statement of reasons.--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 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.--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) has occurred. This section shall not affect the 
appointment of counsel and the provision of ancillary legal services 
under section 408(q) (4), (5), (6), (7), (8), (9), and (10) of the 
Controlled Substances Act (21 U.S.C. 848 (q) (4), (5), (6), (7), (8), 
(9), and (10)).
    ``(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. At least 1 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. 
Within 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 1 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 1 counsel appointed for trial representation must have been 
admitted to the bar for at least 5 years and have at least 3 years of 
experience in the trial of felony cases in the federal district courts. 
If new counsel is appointed after judgment, at least 1 counsel so 
appointed must have been admitted to the bar for at least 5 years and 
have at least 3 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 the standards 
prescribed in the 2 preceding sentences, 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 shall apply 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 a 
sentence of death has been imposed, and the judgment has become final 
as described in section 3598(c), a motion in the case under section 
2255 of title 28 shall be filed within 90 days of the issuance of the 
order relating to appointment of counsel under section 3598(c). 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), 
        or fails to make a timely application for court of appeals 
        review following the denial of such a motion by a district 
        court;
            ``(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 the 
        decision to do so, the defendant waives the right to file a 
        motion under section 2255 of title 28.
    ``(c) Finality of Decision on Review.--If one of the conditions 
specified in subsection (b) 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 on the offense or offenses for which the 
        death penalty was imposed.
``Sec. 3600. Application in 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 and which has occurred within the boundaries of 
such Indian country, unless the governing body of the tribe has made an 
election that this chapter have effect over land and persons subject to 
its criminal jurisdiction.''.
    (b) Technical Amendment.--The part analysis for part II of title 
18, United States Code, is amended by adding after the item relating to 
chapter 227 the following new item:

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

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