[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 233 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 233

To place a moratorium on executions by the Federal Government and urge 
  the States to do the same, while a National Commission on the Death 
  Penalty reviews the fairness of the imposition of the death penalty.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2001

   Mr. Feingold (for himself, and Mr. Levin, Mr. Wellstone, and Mr. 
   Corzine) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To place a moratorium on executions by the Federal Government and urge 
  the States to do the same, while a National Commission on the Death 
  Penalty reviews the fairness of the imposition of the death penalty.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Death Penalty Moratorium 
Act of 2001''.

                TITLE I--MORATORIUM ON THE DEATH PENALTY

SEC. 101. FINDINGS.

    Congress makes the following findings:
            (1) General findings.--
                    (A) The administration of the death penalty by the 
                Federal government and the States should be consistent 
                with our Nation's fundamental principles of fairness, 
                justice, equality, and due process.
                    (B) At a time when Federal executions are scheduled 
                to recommence, Congress should consider that more than 
                ever Americans are questioning the use of the death 
                penalty and calling for assurances that it be fairly 
                applied. Support for the death penalty has dropped to 
                the lowest level in 19 years. An NBC News/Wall Street 
                Journal Poll revealed that 63 percent of Americans 
                support a suspension of executions until questions of 
                fairness can be addressed.
                    (C) Documented unfairness in the Federal system 
                requires Congress to act and suspend Federal 
                executions. Additionally, substantial evidence of 
                unfairness throughout death penalty States justifies 
                further investigation by Congress.
            (2) Administration of the death penalty by the federal 
        government.--
                    (A) The fairness of the administration of the 
                Federal death penalty has recently come under serious 
                scrutiny, specifically raising questions of racial and 
                geographic disparities:
                            (i) Eighty percent of Federal death row 
                        inmates are members of minority groups.
                            (ii) A report released by the Department of 
                        Justice on September 12, 2000, found that 80 
                        percent of defendants who were charged with 
                        death-eligible offenses under Federal law and 
                        whose cases were submitted by the United States 
                        attorneys under the Department's death penalty 
                        decision-making procedures were African 
                        American, Hispanic American, or members of 
                        other minority groups.
                            (iii) The Department of Justice report 
                        shows that United States attorneys in only 5 of 
                        94 Federal districts--1 each in Virginia, 
                        Maryland, Puerto Rico, and 2 in New York--
                        submit 40 percent of all cases in which the 
                        death penalty is considered.
                            (iv) The Department of Justice report shows 
                        that United States attorneys who have 
                        frequently recommended seeking the death 
                        penalty are often from States with a high 
                        number of executions under State law, including 
                        Texas, Virginia, and Missouri.
                            (v) The Department of Justice report shows 
                        that white defendants are more likely than 
                        black defendants to negotiate plea bargains 
                        saving them from the death penalty in Federal 
                        cases.
                            (vi) A study conducted by the House 
                        Judiciary Subcommittee on Civil and 
                        Constitutional Rights in 1994 concluded that 89 
                        percent of defendants selected for capital 
                        prosecution under the Anti-Drug Abuse Act of 
                        1988 were either African American or Hispanic 
                        American.
                            (vii) The National Institute of Justice has 
                        already set into motion a comprehensive study 
                        of these racial and geographic disparities.
                            (viii) Federal executions should not 
                        proceed until these disparities are fully 
                        studied, discussed, and the federal 
death penalty process is subjected to necessary remedial action.
                    (B) In addition to racial and geographic 
                disparities in the administration of the federal death 
                penalty, other serious questions exist about the 
                fairness and reliability of federal death penalty 
                prosecutions:
                            (i) Federal prosecutors rely heavily on 
                        bargained-for testimony from accomplices of the 
                        capital defendant, which is often obtained in 
                        exchange for not seeking the death penalty 
                        against the accomplices. This practice creates 
                        a serious risk of false testimony.
                            (ii) Federal prosecutors are not required 
                        to provide discovery sufficiently ahead of 
                        trial to permit the defense to be prepared to 
                        use this information effectively in defending 
                        their clients.
                            (iii) The Federal Bureau of Investigation 
                        (FBI), in increasing isolation from the rest of 
                        the nation's law enforcement agencies, refuses 
                        to make electronic recordings of interrogations 
                        that produce confessions, thus making 
                        subsequent scrutiny of the legality and 
                        reliability of such interrogations more 
                        difficult.
                            (iv) Federal prosecutors rely heavily on 
                        predictions of ``future dangerousness''--
                        predictions deemed unreliable and misleading by 
                        the American Psychiatric Association and the 
                        American Psychological Association--to secure 
                        death sentences.
            (3) Administration of the death penalty by the states.--
                    (A) The punishment of death carries an especially 
                heavy burden to be free from arbitrariness and 
                discrimination. The Supreme Court has held that ``super 
                due process'', a higher standard than that applied in 
                regular criminal trials, is necessary to meet 
                constitutional requirements. There is significant 
                evidence that States are not providing this heightened 
                level of due process. For example:
                            (i) In the most comprehensive review of 
                        modern death sentencing, Professor James 
                        Liebman and researchers at Columbia University 
                        found that, during the period 1973 to 1995, 68 
                        percent of all death penalty cases reviewed 
                        were overturned due to serious constitutional 
                        errors. In the wake of the Liebman study, 6 
                        States (Arizona, Maryland, North Carolina, 
                        Illinois, Indiana, and Nebraska), as well as 
                        the Chicago Tribune and the Texas Defender 
                        Service are conducting additional studies. 
                        These studies may expose additional problems. 
                        With few exceptions, the rate of error was 
                        consistent across all death penalty States.
                            (ii) Forty percent of the cases overturned 
                        were reversed in Federal court after having 
                        been upheld by the States.
                    (B) The high rate of error throughout all death 
                penalty jurisdictions suggests that there is a grave 
                risk that innocent persons may have been, or will 
                likely be, wrongfully executed. Although the Supreme 
                Court has never conclusively addressed the issue of 
                whether executing an innocent person would in and of 
                itself violate the Constitution, in Herrara v. Collins, 
                506 U.S. 390 (1993), a majority of the court expressed 
                the view that a persuasive demonstration of actual 
                innocence would violate substantive due process 
                rendering imposition of a death sentence 
                unconstitutional. In any event, the wrongful conviction 
                and sentencing of a person to death is a serious 
                concern for many Americans. For example:
                            (i) After 13 innocent people were released 
                        from Illinois death row in the same period that 
                        the State had executed 12 people, on January 
                        31, 2000, Governor George Ryan of Illinois 
                        imposed a moratorium on executions until he 
                        could be ``sure with moral certainty that no 
                        innocent man or woman is facing a lethal 
                        injection, no one will meet that fate''.
                            (ii) Since 1973, 93 persons have been freed 
                        and exonerated from death rows across the 
                        country, most after serving lengthy sentences.
                    (C) Wrongful convictions create a serious public 
                safety problem because the true killer is still at 
                large, while the innocent person languishes in prison.
                    (D) There are many systemic problems that result in 
                innocent people being convicted such as mistaken 
                identification, reliance on jailhouse informants, 
                reliance on faulty forensic testing and no access to 
                reliable DNA testing. For example:
                            (i) A study of cases of innocent people who 
                        were later exonerated, conducted by attorneys 
                        Barry Scheck and Peter Neufeld with ``The 
                        Innocence Project'' at Cardozo Law School, 
                        showed that mistaken identifications of 
                        eyewitnesses or victims contributed to 84 
                        percent of the wrongful convictions.
                            (ii) Many persons on death row were 
                        convicted prior to 1994 and did not receive the 
                        benefit of modern DNA testing. At least 10 
                        individuals sentenced to death have been 
                        exonerated through post-conviction DNA testing, 
                        some within days of execution. Yet in spite of 
                        the current widespread prevalence and 
                        availability of DNA testing, many States have 
                        procedural barriers blocking introduction of 
                        post-conviction DNA testing. More than 30 
                        States have laws that require a motion for a 
                        new trial based on newly discovered evidence to 
                        be filed within 6 months or less.
                            (iii) The widespread use of jailhouse 
                        snitches who earn reduced charges or sentences 
                        by fabricating ``admissions'' by fellow inmates 
                        to unsolved crimes can lead to wrongful 
                        convictions.
                            (iv) The misuse of forensic evidence can 
                        lead to wrongful convictions. A recently 
                        released report from the Texas Defender Service 
                        entitled ``A State of Denial: Texas and the 
                        Death Penalty'' found 160 cases of official 
                        forensic misconduct including 121 cases where 
                        expert psychiatrists testified ``with absolute 
                        certainty that the defendant would be a danger 
                        in the future'', often without even 
                        interviewing the defendant.
                    (E) The sixth amendment to the Constitution 
                guarantees all accused persons access to competent 
                counsel. The Supreme Court set out standards for 
                determining competency in the case of Strickland v. 
                Washington, 466 U.S. 668 (1984). Unfortunately, there 
                is unequal access to competent counsel throughout death 
                penalty States. For example:
                            (i) Ninety percent of capital defendants 
                        cannot afford to hire their own attorney.
                            (ii) Fewer than one-quarter of the 38 death 
                        penalty States have set any standards for 
                        competency of counsel and in those few States, 
                        these standards were set only recently. In most 
                        States, any person who passes a bar 
                        examination, even if that attorney has never 
                        represented a client in any type of case, may 
                        represent a client in a death penalty case.
                            (iii) Thirty-seven percent of capital cases 
                        were reversed because of ineffective assistance 
                        of counsel, according to the Columbia study.
                            (iv) The recent Texas report noted problems 
                        with Texas defense attorneys who slept through 
                        capital trials, ignored obvious exculpatory 
                        evidence, suffered discipline for ethical 
                        lapses or for being under the influence of 
                        drugs or alcohol while representing an indigent 
                        capital defendant at trial.
                            (v) Poor lawyering was also cited by 
                        Governor Ryan in Illinois as a basis for a 
                        moratorium. More than half of all capital 
                        defendants there were represented by lawyers 
                        who were later disciplined or disbarred for 
                        unethical conduct.
                    (F) The Supreme Court has held that it is a 
                violation of the eighth amendment to impose the death 
                penalty in a manner that is arbitrary, capricious, or 
                discriminatory. McKlesky v. Kemp, 481 U.S. 279 (1987). 
                Studies consistently indicate racial disparity in the 
                application of the death penalty both for the 
                defendants and the victims. The death penalty is 
                disparately applied in various regions throughout the 
                country, suggesting arbitrary administration of the 
                death penalty based on where the prosecution takes 
                place. For example:
                            (i) Of the 85 executions in the year 2000, 
                        51 percent of the defendants were white, 40 
                        percent were black, 7 percent were Latino and 2 
                        percent Native American. Of the victims in the 
                        underlying murder, 76 percent were white, 18 
                        percent were black, 2 percent were Latino, and 
                        3 percent were ``other''. These figures show a 
                        continuing trend since reinstatement of the 
                        modern death penalty of a predominance of white 
                        victims' cases. Despite the fact that 
                        nationally whites and blacks are victims of 
                        murder in approximately equal numbers, 83 
                        percent of the victims involved in capital 
                        cases overall since reinstatement, and 76 
                        percent of the victims in 2000, have been 
                        white. Since this disparity is confirmed in 
                        studies that control for similar crimes by 
                        defendants with similar backgrounds, it implies 
                        that white victims are considered more valuable 
                        in the criminal justice system.
                            (ii) Executions are conducted predominately 
                        in southern States. Ninety percent of all 
                        executions in 2000 were conducted in the south. 
                        Only 3 States outside the south, Arizona, 
                        California, and Missouri, conducted an 
                        execution in 2000. Texas accounted for almost 
                        as many executions as all the remaining States 
                        combined.

SEC. 102. FEDERAL AND STATE DEATH PENALTY MORATORIUM.

    (a) In General.--The Federal Government shall not carry out any 
sentence of death imposed under Federal law until the Congress 
considers the final findings and recommendations of the National 
Commission on the Death Penalty in the report submitted under section 
202(c)(2) and the Congress enacts legislation repealing this section 
and implements or rejects the guidelines and procedures recommended by 
the Commission.
    (b) Sense of Congress.--It is the sense of Congress that each State 
that authorizes the use of the death penalty should enact a moratorium 
on executions to allow time to review whether the administration of the 
death penalty by that State is consistent with constitutional 
requirements of fairness, justice, equality, and due process.

           TITLE II--NATIONAL COMMISSION ON THE DEATH PENALTY

SEC. 201. ESTABLISHMENT OF COMMISSION.

    (a) Establishment.--There is established a commission to be known 
as the National Commission on the Death Penalty (in this title referred 
to as the ``Commission'').
    (b) Membership.--
            (1) Appointment.--Members of the Commission shall be 
        appointed by the President in consultation with the Attorney 
        General and the Chairmen and Ranking Members of the Committees 
        on the Judiciary of the House of Representatives and the 
        Senate.
            (2) Composition.--The Commission shall be composed of 15 
        members, of whom--
                    (A) 3 members shall be Federal or State 
                prosecutors;
                    (B) 3 members shall be attorneys experienced in 
                capital defense;
                    (C) 2 members shall be current or former Federal or 
                State judges;
                    (D) 2 members shall be current or former Federal or 
                State law enforcement officials; and
                    (E) 5 members shall be individuals from the public 
                or private sector who have knowledge or expertise, 
                whether by experience or training, in matters to be 
                studied by the Commission, which may include--
                            (i) officers or employees of the Federal 
                        Government or State or local governments;
                            (ii) members of academia, nonprofit 
                        organizations, the religious community, or 
                        industry; and
                            (iii) other interested individuals.
            (3) Balanced viewpoints.--In appointing the members of the 
        Commission, the President shall, to the maximum extent 
        practicable, ensure that the membership of the Commission is 
        fairly balanced with respect to the opinions of the members of 
        the Commission regarding support for or opposition to the use 
        of the death penalty.
            (4) Date.--The appointments of the initial members of the 
        Commission shall be made not later than 30 days after the date 
        of enactment of this Act.
    (c) Period of Appointment.--Each member shall be appointed for the 
life of the Commission.
    (d) Vacancies.--A vacancy in the Commission shall not affect the 
powers of the Commission, but shall be filled in the same manner as the 
original appointment.
    (e) Initial Meeting.--Not later than 30 days after all initial 
members of the Commission have been appointed, the Commission shall 
hold the first meeting.
    (f) Meetings.--The Commission shall meet at the call of the 
Chairperson.
    (g) Quorum.--A majority of the members of the Commission shall 
constitute a quorum for conducting business, but a lesser number of 
members may hold hearings.
    (h) Chair.--The President shall designate 1 member appointed under 
subsection (a) to serve as the Chair of the Commission.
    (i) Rules and Procedures.--The Commission shall adopt rules and 
procedures to govern the proceedings of the Commission.

SEC. 202. DUTIES OF THE COMMISSION.

    (a) Study.--
            (1) In general.--The Commission shall conduct a thorough 
        study of all matters relating to the administration of the 
        death penalty to determine whether the administration of the 
        death penalty comports with constitutional principles and 
        requirements of fairness, justice, equality, and due process.
            (2) Matters studied.--The matters studied by the Commission 
        shall include the following:
                    (A) Racial disparities in capital charging, 
                prosecuting, and sentencing decisions.
                    (B) Disproportionality in capital charging, 
                prosecuting, and sentencing decisions based on 
                geographic location and income status of defendants or 
                any other factor resulting in such disproportionality.
                    (C) Adequacy of representation of capital 
                defendants, including consideration of the American Bar 
Association ``Guidelines for the Appointment and Performance of Counsel 
in Death Penalty Cases'' (adopted February 1989) and American Bar 
Association policies that are intended to encourage competency of 
counsel in capital cases (adopted February 1979, February 1988, 
February 1990, and August 1996).
                    (D) Whether innocent persons have been sentenced to 
                death and the reasons these wrongful convictions have 
                occurred.
                    (E) Whether the Federal Government should seek the 
                death penalty in a State with no death penalty.
                    (F) Whether courts are adequately exercising 
                independent judgment on the merits of constitutional 
                claims in State post-conviction and Federal habeas 
                corpus proceedings.
                    (G) Whether mentally retarded persons and persons 
                who were under the age of 18 at the time of their 
                offenses should be sentenced to death after conviction 
                of death-eligible offenses.
                    (H) Procedures to ensure that persons sentenced to 
                death have access to forensic evidence and modern 
                testing of forensic evidence, including DNA testing, 
                when modern testing could result in new evidence of 
                innocence.
                    (I) Any other law or procedure to ensure that death 
                penalty cases are administered fairly and impartially, 
                in accordance with the Constitution.
    (b) Guidelines and Procedures.--
            (1) In general.--Based on the study conducted under 
        subsection (a), the Commission shall establish guidelines and 
        procedures for the administration of the death penalty 
        consistent with paragraph (2).
            (2) Intent of guidelines and procedures.--The guidelines 
        and procedures required by this subsection shall--
                    (A) ensure that the death penalty cases are 
                administered fairly and impartially, in accordance with 
                due process;
                    (B) minimize the risk that innocent persons may be 
                executed; and
                    (C) ensure that the death penalty is not 
                administered in a racially discriminatory manner.
    (c) Report.--
            (1) Preliminary report.--Not later than 1 year after the 
        date of enactment of this Act, the Commission shall submit to 
        the President, the Attorney General, and the Congress a 
        preliminary report, which shall contain a preliminary statement 
        of findings and conclusions.
            (2) Final report.--Not later than 2 years after the date of 
        enactment of this Act, the Commission shall submit a report to 
        the President, the Attorney General, and the Congress which 
        shall contain a detailed statement of the findings and 
        conclusions of the Commission, together with the 
        recommendations of the Commission for legislation and 
        administrative actions that implement the guidelines and 
        procedures that the Commission considers appropriate.

SEC. 203. POWERS OF THE COMMISSION.

    (a) Information From Federal and State Agencies.--
            (1) In general.--The Commission may secure directly from 
        any Federal or State department or agency information that the 
        Commission considers necessary to carry out the provisions of 
        this title.
            (2) Furnishing of information.--Upon a request of the 
        Chairperson of the Commission, the head of any Federal or State 
        department or agency shall furnish the information requested by 
        the Chairperson to the Commission.
    (b) Postal Services.--The Commission may use the United States 
mails in the same manner and under the same conditions as other 
departments and agencies of the Federal Government.
    (c) Gifts.--The Commission may accept, use, and dispose of gifts or 
donations of services or property.
    (d) Hearings.--The Commission or, at the direction of the 
Commission, any subcommittee or member of the Commission, may, for the 
purpose of carrying out the provisions of this title--
            (1) hold hearings, sit and act at times and places, take 
        testimony, receive evidence, and administer oaths that the 
        Commission, subcommittee, or member considers advisable; and
            (2) require, by subpoena or otherwise, the attendance and 
        testimony of witnesses and the production of books, records, 
        correspondence, memoranda, papers, documents, tapes, and 
        materials that the Commission, subcommittee, or member 
        considers advisable.
    (e) Issuance and Enforcement of Subpoenas.--
            (1) Issuance.--Subpoenas issued pursuant to subsection 
        (d)--
                    (A) shall bear the signature of the Chairperson of 
                the Commission; and
                    (B) shall be served by any person or class of 
                persons designated by the Chairperson for that purpose.
            (2) Enforcement.--
                    (A) In general.--In the case of contumacy or 
                failure to obey a subpoena issued under subsection (d), 
                the district court of the United States for the 
                judicial district in which the subpoenaed person 
                resides, is served, or may be found, may issue an order 
                requiring that person to appear at any designated place 
                to testify or to produce documentary or other evidence.
                    (B) Contempt.--Any failure to obey a court order 
                issued under subparagraph (A) may be punished by the 
                court as a contempt.
            (3) Testimony of persons in custody.--A court of the United 
        States within the jurisdiction in which testimony of a person 
        held in custody is sought by the Commission or within the 
        jurisdiction of which such person is held in custody, may, upon 
        application by the Attorney General, issue a writ of habeas 
        corpus ad testificandum requiring the custodian to produce such 
        person before the Commission, or before a member of the 
        Commission or a member of the staff of the Commission 
        designated by the Commission for such purpose.
    (f) Witness Allowances and Fees.--
            (1) In general.--The provisions of section 1821 of title 
        28, United States Code, shall apply to witnesses requested or 
        subpoenaed to appear at any hearing of the Commission.
            (2) Travel expenses.--The per diem and mileage allowances 
        for witnesses shall be paid from funds available to pay the 
        expenses of the Commission.

SEC. 204. COMMISSION PERSONNEL MATTERS.

    (a) Compensation of Members.--Members of the Commission shall serve 
without compensation for the services of the member to the Commission.
    (b) Travel Expenses.--The members of the Commission shall be 
allowed travel expenses, including per diem in lieu of subsistence, at 
rates authorized for employees of agencies under subchapter I of 
chapter 57 of title 5, United States Code, while away from their homes 
or regular places of business in the performance of services for the 
Commission.
    (c) Staff.--
            (1) In general.--The Chairperson of the Commission may, 
        without regard to the civil service laws and regulations, 
        appoint and terminate an executive director and such other 
        additional personnel as may be necessary to enable the 
        Commission to perform the duties of the Commission.
            (2) Executive director.--The employment of an executive 
        director shall be subject to confirmation by the Commission.
            (3) Compensation.--The Chairperson of the Commission may 
        fix the compensation of the executive director and other 
        personnel without regard to the provisions of chapter 51 and 
        subchapter III of chapter 53 of title 5, United States Code, 
        relating to classification of positions and General Schedule 
        pay rates, except that the rate of pay for the executive 
        director and other personnel may not exceed the rate payable 
        for level V of the Executive Schedule under section 5316 of 
        title 5.
    (d) Detail of Government Employees.--Any Federal Government 
employee may be detailed to the Commission without reimbursement, and 
the detail shall be without interruption or loss of civil service 
status or privilege.
    (e) Procurement of Temporary and Intermittent Services.--The 
Chairperson of the Commission may procure temporary and intermittent 
services under section 3109(b) of title 5, United States Code, at rates 
for individuals which do not exceed the daily equivalent of the annual 
rate of basic pay prescribed for level V of the Executive Schedule 
under section 5316 of title 5.

SEC. 205. TERMINATION OF THE COMMISSION.

    The Commission shall terminate 90 days after the date on which the 
Commission submits its report under section 202.

SEC. 206. FUNDING.

    (a) In General.--The Commission may expend an amount not to exceed 
$850,000, as provided by subsection (b), to carry out this title.
    (b) Availability.--Sums appropriated to the Department of Justice 
shall be made available to carry out this title.
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