[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 527 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 527

   To provide for, and to provide constitutional procedures for the 
imposition of, the death penalty for causing death through the use of a 
                   bomb or other destructive device.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                March 5 (legislative day, March 3), 1993

 Mr. D'Amato (for himself, Mr. Dole, Mr. DeConcini, Mr. Domenici, Mr. 
Smith, Mr. McConnell, and Mr. Murkowski) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To provide for, and to provide constitutional procedures for the 
imposition of, the death penalty for causing death through the use of a 
                   bomb or other destructive device.

    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 ``Bombing Homicide Death Penalty 
Act''.

SEC. 2. DEATH PENALTY AUTHORIZATIONS AND PROCEDURES.

    Section 924 of title 18, United States Code, is amended by adding 
at the end the following new subsection:
    ``(i) Causing Death Through the Use of a Bomb or Other Destructive 
Device.--
            ``(1) Penalty.--
                    ``(A) In general.--Subject to subparagraph (B), a 
                person who intentionally or with reckless disregard for 
                human life causes the death of a person through the use 
                of a bomb or other destructive device shall be 
                sentenced to life imprisonment without release or to 
                death if, after consideration of the factors listed in 
                paragraph (2) in the course of a hearing held pursuant 
                to paragraph (3), it is determined that imposition of a 
                sentence of death is justified.
                    ``(B) ____.--No person may be sentenced to the 
                death penalty who was less than 18 years of age at the 
                time of the offense.
            ``(2) 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 an offense described 
                in paragraph (1), the jury, or if there is no jury, the 
                court, shall consider each of the following mitigating 
                factors and determine which, if any exists:
                            ``(i) Mental capacity.--The defendant's 
                        mental capacity to appreciate the wrongfulness 
                        of his or her conduct or to conform his or her 
                        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.
                            ``(ii) 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.
                            ``(iii) Participation in offense minor.--
                        The defendant's participation in the offense, 
                        which was committed by another, was relatively 
                        minor, although not so minor as to constitute a 
                        defense to the charge.
                The jury, or if there is no jury, the court, shall 
                consider whether any other aspect of the defendant's 
                character or record or any other circumstance of the 
                offense that the defendant may proffer as a mitigating 
                factor exists.
                    ``(B) Aggravating factors.--In determining whether 
                a sentence of death is justified for an offense 
                described in paragraph (1), the jury, or if theve is no 
                jury, the court, shall consider each of the following 
                aggravating factors and determine which, if any, 
                exist--
                            ``(i) 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.
                            ``(ii) Previous convictions of violent 
                        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 infliction 
                        or attempted infliction of serious bodily 
                        injury or death upon another person.
                            ``(iii) Previous convictions of drug 
                        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)).
                            ``(iv) Previous convictions of violent drug 
                        offenses.--The defendant has previously been 
                        convicted of a Federal or State offense, 
                        punishable by a term of imprisonment of more 
                        than 1 year, involving the infliction of, or 
                        attempted infliction of, serious bodily injury 
                        or death upon another person, and has 
                        previously been convicted of a Federal or State 
                        offense, committed on a different occasion and 
                        punishable by a term of imprisonment of more 
                        than 1 year, 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)).
                            ``(v) Serious drug felony conviction.--The 
                        defendant has previously been convicted of 
                        another Federal or State offense involving the 
                        manufacture, distribution, importation, or 
                        possession of a controlled substance (as 
                        defined in section 102 of the Controlled 
                        Substances Act (21 U.S.C. 802)) for which a 
                        sentence of 5 or more years of imprisonment was 
                        authorized by statute.
                            ``(vi) Previous conviction of a violent 
                        felony involving a firearm.--The defendant has 
                        previously been convicted of a Federal or State 
                        offense punishable by a term of imprisonment of 
                        more than 1 year involving the use or attempted 
                        use of a firearm to threaten, intimidate, 
                        assault or injure a person.
            ``(3) Special hearing to determine whether a sentence of 
        death is justified.--
                    ``(A) Notice by the government.--When the 
                Government intends to seek the death penalty for an 
                offense described in paragraph (1), 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--
                            ``(i) stating that the Government in the 
                        event of conviction will seek the sentence of 
                        death; and
                            ``(ii) setting forth the aggravating factor 
                        or factors listed in paragraph (2)(B) and any 
                        other aggravating factor not listed in 
                        paragraph (2)(B) that the Government, if the 
                        defendant is convicted, will seek to prove as 
                        the basis for the death penalty.
                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 subparagraph (A) and the defendant is 
                found guilty of an offense described in paragraph (1), 
                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--
                            ``(i) before the jury that determined the 
                        defendant's guilt;
                            ``(ii) before a jury impaneled for the 
                        purpose of the hearing if--
                                    ``(I) the defendant was convicted 
                                upon a plea of guilty;
                                    ``(II) the defendant was convicted 
                                after a trial before the court sitting 
                                without a jury;
                                    ``(III) the jury that determined 
                                the defendant's guilt was discharged 
                                for good cause; or
                                    ``(IV) after initial imposition of 
                                a sentence under this section, 
                                reconsideration of the sentence under 
                                the section is necessary; or
                            ``(iii) before the court alone, upon motion 
                        of the defendant and with the approval of the 
                        attorney for the Government.
                A jury impaneled pursuant to clause (ii) 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 
                concerning--
                            ``(i) any matter relating to any mitigating 
                        factor listed in paragraph (2)(A) and any other 
                        mitigating factor; and
                            ``(ii) any matter relating to any 
                        aggravating factor listed in paragraph (2)(B) 
                        for which notice has been provided under 
                        paragraph (3)(A) and (if information is 
                        presented relating to such a listed factor) any 
                        other aggravating factor for which notice has 
                        been so provided.
                Information presented may include the trial transcript 
                and exhibits. Any other information relevant to such 
                mitigating or aggravating factors may be presented by 
                the Government or the defendant, regardless of its 
                admissibility under the rules governing admission of 
                evidence at criminal trials, except that information 
                may be excluded if its probative value is outweighed by 
                the danger of creating unfair prejudice, confusing the 
                issues, or misleading the jury. The attorney for the 
                Government and the attorney 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 paragraph (2)(B) found 
                to exist and any other aggravating factor for which 
                notice has been provided under paragraph (3)(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 
                listed in paragraph (2)(B) 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 paragraph (2)(B) is found to exist, 
                the jury, or if there is no jury, the court, shall 
                consider whether the aggravating factor or factors 
                found to exist 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 1 aggravating factor and no mitigating 
                factor or if it finds 1 or more aggravating factors 
                that 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 ensure against 
                discrimination.--In a hearing held before a jury, the 
                court, prior to the return of a finding under 
                subparagraph (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 
                subparagraph (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.
            ``(4) Imposition of a sentence of death.--Upon the 
        recommendation under paragraph (3)(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.
            ``(5) 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 shall 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 subsection 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--
                            ``(i) the evidence submitted during the 
                        trial;
                            ``(ii) the information submitted during the 
                        sentencing hearing;
                            ``(iii) the procedures employed in the 
                        sentencing hearing; and
                            ``(iv) the special findings returned under 
                        paragraph (3)(D).
                    ``(C) Decision and disposition.--
                            ``(i) If the court of appeals determines 
                        that--
                                    ``(I) the sentence of death was not 
                                imposed under the influence of passion, 
                                prejudice, or any other arbitrary 
                                factor;
                                    ``(II) the evidence and information 
                                support the special findings of the 
                                existence of an aggravating factor or 
                                factors; and
                                    ``(III) the proceedings did not 
                                involve any other prejudicial error 
                                requiring reversal of the sentence that 
                                was properly preserved for and raised 
                                on appeal,
                        the court it shall affirm the sentence.
                            ``(ii) In any other case, the court of 
                        appeals shall remand the case for 
                        reconsideration or for imposition of another 
                        authorized sentence as appropriate.
                            ``(iii) The court of appeals shall state in 
                        writing the reasons for its disposition of an 
                        appeal of sentence of death under this 
                        subsection.
            ``(6) Implementation of sentence of death.--
                    ``(A) Procedure.--A person who has been sentenced 
                to death pursuant to this subsection 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 that 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) Limitation.--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) Participation by employees.--No employee of 
                any State department of corrections or 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 
                subsection 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 person and the apparatus used for the 
                execution, and supervision of the activities of other 
                personnel in carrying out such activities.
            ``(7) Use of state facilities.--A United States marshal 
        charged with supervising the implementation of a sentence of 
        death may use appropriate State or local facilities for the 
        purpose, may use the services of an appropriate State or local 
        official or of a person such as an official employed for the 
        purpose, and shall pay the costs thereof in a amount approved 
        by the Attorney General.
            ``(8) Appointment of counsel.--
                    ``(A) Representation of indigent defendants.--
                Notwithstanding any other law, this paragraph 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 
                described in paragraph (1) when 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 1 of the conditions specified in 
                paragraph (9)(B) has occurred.
                    ``(B) Representation before finality of judgment.--
                A defendant within the scope of this paragraph 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 a notice, the district court 
                shall proceed to make a determination whether the 
                defendant is eligible under this paragraph for 
                appointment of counsel for subsequent proceedings. On 
                the basis of the determination, the court shall issue 
                an order--
                            ``(i) 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;
                            ``(ii) 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
                            ``(iii) denying the appointment of counsel 
                        upon a finding that the defendant is 
                        financially able to obtain adequate 
                        representation. Counsel appointed pursuant to 
                        this paragraph 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 subsection, at least 1 counsel 
                appointed for trial representation shall 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 shall 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 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 paragraph, section 
                3006A shall apply to appointments under this paragraph.
                    ``(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. The 
                limitation stated in the preceding sentence shall not 
                preclude the appointment of different counsel at any 
                stage of the proceedings.
            ``(9) Collateral attack on judgment imposing sentence of 
        death.--
                    ``(A) Time for making section 2255 motion.--In any 
                case in which a sentence of death has been imposed for 
                an offense against the United States and the judgment 
                has become final under section 3598(a)(3), a motion in 
                the case under section 2255 of title 28 shall be filed 
                within 90 days after the issuance of the order relating 
                to appointment of counsel under section 3598(a)(3). The 
                court in which the motion is filed for good cause may 
                extend the time for filing for a period not exceeding 
                60 days. A motion under this subparagraph 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--
                            ``(i) the defendant fails to file a motion 
                        under section 2255 of title 28 within the time 
                        specified in subparagraph (A) or fails to make 
                        a timely application for court of appeals 
                        review following the denial of such a motion by 
                        a district court;
                            ``(ii) upon completion of district court 
                        and court of appeals review under section 2255 
                        of title 28, the motion under that section is 
                        denied and--
                                    ``(I) the time for filing a 
                                petition for certiorari has expired and 
                                no petition has been filed;
                                    ``(II) a timely petition of 
                                certiorari was filed and the Supreme 
                                Court denied the petition; or
                                    ``(III) 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
                            ``(iii) before a district court, in the 
                        presence of counsel and after having been 
                        advised of the consequences of his decision, 
                        the defendant waives the right to file a motion 
                        under section 2255 of title 28.
                    ``(C) Finality of the decision on review.--If 1 of 
                the conditions specified in subparagraph (B) has 
                occurred, no court thereafter shall have the authority 
                to enter a stay of execution or grant relief in the 
                case unless--
                            ``(i) the basis for the stay and request 
                        for relief is a claim not presented in earlier 
                        proceedings;
                            ``(ii) the failure to raise the claim is--
                                    ``(I) the result of governmental 
                                action in violation of the Constitution 
                                or laws of the United States;
                                    ``(II) the result of the Supreme 
                                Court recognition of a new Federal 
                                right that is retroactively applicable; 
                                or
                                    ``(III) 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
                            ``(iii) 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.
            ``(10)  Jurisdiction.--There is Federal jurisdiction over 
        an offense under this subsection if--
                    ``(A) the conduct of the offender occurred in the 
                course of an offense against the United States; or
                    ``(B) a destructive device or part thereof involved 
                in the offense has moved at any time in interstate or 
                foreign commerce.''.

                                 <all>

S 527 IS----2