[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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