[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5040 Introduced in House (IH)]







109th CONGRESS
  2d Session
                                H. R. 5040

  To modify the law with respect to the death penalty, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 29, 2006

 Mr. Gohmert introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To modify the law with respect to the death penalty, and for other 
                               purposes.

    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 ``Death Penalty Reform Act of 2006''.

SEC. 2. AMENDMENTS RELATING TO TITLE 28.

    Chapter 153 of title 28, United States Code, is amended--
            (1) in section 2254(h) by striking ``section 408 of the 
        Controlled Substances Act'' and inserting ``section 3599 of 
        title 18''; and
            (2) in section 2255 by striking ``section 408 of the 
        Controlled Substances Act'' and inserting ``section 3599 of 
        title 18''.

SEC. 3. AMENDMENTS RELATING TO SECTION 3592 OF TITLE 18.

    Section 3592 of title 18, United States Code, is amended--
            (1) in subsection (a), by inserting ``for which notice has 
        been provided'' after ``factor'';
            (2) in subsection (c)(1)--
                    (A) by inserting ``section 241 (conspiracy against 
                rights), section 245 (federally protected activities), 
                section 247 (interference with religious exercise)'' 
                after ``section 37 (violence at international 
                airports),''; and
                    (B) by inserting ``section 1512 (tampering with a 
                witness, victim, or an informant), section 1513 
                (retaliating against a witness, victim, or an 
                informant),'' after ``section 1203 (hostage taking),'';
            (3) in subsection (c)(2)--
                    (A) by striking ``For any offense, other than an 
                offense for which a sentence of death is sought on the 
                basis of section 924(c), the'' and inserting ``The''; 
                and
                    (B) by striking ``previously'' and inserting ``, in 
                a prior adjudication,'';
            (4) in subsection (c)(8)--
                    (A) by striking ``or''; and
                    (B) by inserting ``or in order to retain illegal 
                possession'' before ``of anything'';
            (5) in subsection (c)(12), by striking ``had previously'' 
        each place that term appears and inserting ``has previously''; 
        and
            (6) in subsection (c), by inserting after paragraph (16) 
        the following:
            ``(17) Obstruction of justice.--The defendant engaged in 
        any conduct resulting in the death of another person in order 
        to obstruct the investigation or prosecution of any offense.''.

SEC. 4. AMENDMENTS RELATING TO SECTION 3593 OF TITLE 18.

    Section 3593 of title 18, United States Code, is amended--
            (1) in subsection (a)--
                    (A) by striking ``, a reasonable time before the 
                trial or before acceptance by the court of a plea of 
                guilty,'';
                    (B) by inserting after paragraph (2) the following:
``The notice must be filed a reasonable time before trial or before 
acceptance by the court of a plea of guilty. The court shall, where 
necessary to ensure adequate preparation time for the defense, grant a 
reasonable continuance of the trial. If the government has not filed a 
notice of intent to seek the death penalty or informed the court that a 
notice of intent to seek the death penalty will not be filed, the court 
shall not accept a plea of guilty to an offense described in section 
3591 without the concurrence of the government.''; and
                    (C) by inserting before the last sentence the 
                following: ``The government may also provide notice 
                under this subsection of any factor concerning the 
                state of mind, intent or other culpability of the 
                defendant in committing the offense.'';
            (2) in subsection (b), by inserting at the end of paragraph 
        (3) the following:
``The court shall not dismiss alternate jurors impaneled during the 
guilt phase unless for good cause as to individual alternates or upon a 
finding, under this subsection, that the sentencing hearing will be 
heard by the court alone. The court shall retain such alternate jurors 
to hear the sentencing trial until the completion of the hearing. If at 
any time, whether before or after the final submission of the 
sentencing case to the jury, a sitting juror dies or becomes ill, or 
upon other good cause shown to the court is found to be unable to 
perform his or her duty in a timely manner, or if a juror requests a 
discharge and good cause appears therefor, the court shall order the 
juror to be discharged and draw the name of an alternate, who shall 
then take a place in the jury box, and be subject to the same rules and 
regulations as though the alternate juror had been selected as one of 
the original jurors. If deliberations have begun when the substitution 
is made, the court shall instruct the newly constituted jury to 
recommence deliberations as if none had previously taken place. The 
panel, in all other respects, shall be considered unaltered by the 
substitution of a duly seated alternate.'';
            (3) in subsection (c) --
                    (A) in the fourth sentence, by inserting ``for 
                which notice has been provided under subsection (b)'' 
                before the period;
                    (B) in the fifth sentence, by inserting ``, 
                including information pertaining to unadjudicated 
                conduct'' before the period;
                    (C) by inserting after the eighth sentence the 
                following: ``The government shall be permitted to 
                cross-examine the defendant regarding any statements or 
                testimony by the defendant to the sentencing jury.'';
                    (D) by inserting after the fourth sentence the 
                following: ``If the defendant has raised the issue of 
                mental retardation as required under subsection (b), 
                the defendant may introduce information relevant to 
                mental retardation.''; and
                    (E) by inserting at the end the following: ``The 
                defendant shall have the burden of proving mental 
                retardation by the preponderance of the information.'';
            (4) in subsection (d)--
                    (A) in the second sentence by inserting ``determine 
                the truth of the allegations in the notice filed under 
                subsection (a) of this section regarding any mental 
                state set forth in section 3591(a), and'' after ``It 
                shall'';
                    (B) by inserting after the second sentence the 
                following: ``In any case in which the defendant has 
                raised the issue of mental retardation as required 
                under subsection (b), the jury, or if there is no jury, 
                the court, shall determine the issue of mental 
                retardation only if any aggravating factor set forth in 
                section 3592 is found to exist. Such determination 
                shall occur prior to the consideration of any 
                mitigating factor.''; and
                    (C) by inserting at the end the following: ``If the 
                jury, or if there is no jury, the court, determines 
                that the defendant is mentally retarded, the court 
                shall sentence the defendant to life imprisonment 
                without the possibility of release, or some other 
                lesser sentence authorized by law.'';
            (5) in subsection (e)--
                    (A) by inserting before the last sentence the 
                following: ``In assessing the appropriateness of a 
                sentence of death, the jury, or if there is no jury, 
                the court must base the decision on the facts of the 
                offense and the aggravating and mitigating factors and 
                avoid any influence of sympathy, sentiment, passion, 
                prejudice, or other arbitrary factor when imposing 
                sentence.''; and
                    (B) by striking ``, to life imprisonment'' and all 
                that follows through ``lesser sentence'' and inserting 
                ``or to life imprisonment without possibility of 
                release''.
            (6) by redesignating subsections (b) through (f) as 
        subsections (c) through (g); and
            (7) by adding after subsection (a) the following:
    ``(b) Notice by the Defendant.--
            ``(1) If, as required under subsection (a), the government 
        has filed notice seeking a sentence of death, the defendant 
        shall, a reasonable time before the trial, sign and file with 
        the court, and serve on the attorney for the government, notice 
        setting forth the mitigating factor or factors that the 
        defendant proposes to prove mitigate against imposition of a 
        sentence of death. In any case in which the defendant intends 
        to raise the issue of mental retardation as precluding a 
        sentence of death, the defendant shall, a reasonable time 
        before trial, sign and file with the court, and serve on the 
        attorney for the government, notice of such intent.
            ``(2) When a defendant makes a claim of mental retardation 
        or intends to rely on evidence of mental impairment, or other 
        mental defect or disease as a mitigating factor under this 
        section, the government shall have the right to an independent 
        mental health examination of the defendant. A mental health 
        examination ordered under this subsection shall be conducted by 
        a licensed or certified psychiatrist, psychologist, 
        neurologist, psychopharmacologist, or other allied mental 
        health professional. If the court finds it appropriate, more 
        than one such professional shall perform the examination. To 
        facilitate the examination, the court may commit the person to 
        be examined for a reasonable period, but not to exceed 30 days, 
        to the custody of the Attorney General for placement in a 
        suitable facility. Unless impracticable, the psychiatric or 
        psychological examination shall be conducted in a suitable 
        facility reasonably close to the court. The director of the 
        facility may apply for a reasonable extension, but not to 
        exceed 15 days upon a showing of good cause that the additional 
        time is necessary to observe and evaluate the defendant.
            ``(3) Following the filing of a defendant's notice under 
        this subsection, the court shall, where necessary to ensure 
        adequate preparation time for the government, grant a 
        reasonable continuance of the trial.
            ``(4) For purposes of this section, a defendant is mentally 
        retarded if, since some point in time prior to age 18, he or 
        she has continuously had an intelligence quotient of 70 or 
        lower and, as a result of that significantly subaverage mental 
        functioning, has since that point in time continuously had a 
        diminished capacity to understand and process information, 
        abstract from mistakes and learn from experience, engage in 
        logical reasoning, control impulses, and understand others' 
        reactions.''.

SEC. 5. AMENDMENTS RELATING TO SECTION 3594 OF TITLE 18.

     Section 3594 of title 18, United States Code, is amended--
            (1) in the first sentence--
                    (A) by striking ``3593(e)'' and inserting 
                ``3593(f)''; and
                    (B) by striking ``or life imprisonment without 
                possibility of release'';
            (2) in the second sentence--
                    (A) by striking ``any lesser sentence that is 
                authorized by law'' and inserting ``life imprisonment 
                without the possibility of release''; and
                    (B) by inserting ``as limited by section 3593(f)'' 
                before the period.

SEC. 6. AMENDMENTS RELATING TO SECTIONS 3595, 3596, AND 3597 OF TITLE 
              18.

    (a) Section 3596.--Section 3596 of title 18, United States Code, is 
amended--
            (1) in subsection (a), by striking ``When the sentence is 
        to be implemented'' and all that follows through ``such law'' 
        and inserting the following: ``A sentence of death for any 
        offense against the United States shall be implemented pursuant 
        to regulations promulgated by the Attorney General''; and
            (2) in subsection (c)--
                    (A) by striking the first sentence; and
                    (B) by adding at the end the following: ``The 
                government shall not be limited in its opportunities to 
                seek rehearing, based on changed circumstances, of a 
                finding of mental incapacity under this subsection.''.
    (b) Section 3595.--Section 3595 of title 18, United States Code, is 
amended by striking ``3593(d)'' and inserting ``3593(e)''.
    (c) Section 3597.--Section 3597 of title 18, United States Code, is 
amended--
            (1) in the heading, by striking ``State'';
            (2) in subsection (a), by striking ``A United States 
        marshal'' and all that follows through ``Attorney General'' and 
        inserting the following: ``An official charged with supervising 
        the implementation of a sentence of death shall use appropriate 
        Federal or State facilities for such purpose''; and
            (3) by adding at the end the following new subsection:
    ``(c) Confidentiality.--Notwithstanding any other law, the identity 
of any employee of the United States Department of Justice, the Federal 
Bureau of Prisons, the United States Marshals Service, or any State 
department of corrections, or of any person providing services relating 
to an execution under contract or victim or victim's survivor, who 
participates in or witnesses the administration of an execution 
pursuant to this section shall not be publicly disclosed, absent the 
consent of any such individual.''.
    (d) Conforming Amendment.--The table of sections at the beginning 
of chapter 228 of title 18, United States Code, is amended by striking 
the item relating to section 3597 and inserting the following:

``3597. Use of facilities.''.

SEC. 7. AMENDMENT RELATING TO SECTION 3005 OF TITLE 18.

    (a) In General.--Section 3005 of title 18, United States Code, is 
amended to read as follows:
``Sec. 3005. Counsel and voir dire in capital cases
    ``(a) In any case in which the Government files a notice of intent 
to seek a sentence of death, the court shall promptly, upon the 
defendant's request, assign a second counsel for the defendant in 
addition to any previously assigned counsel. At least one assigned 
counsel shall be learned in the law applicable to capital cases. Both 
counsel shall have free access to the accused at all reasonable hours. 
In assigning counsel under this section, the court shall consider the 
recommendation of the Federal Public Defender organization, or, if no 
such organization exists in the district, of the Administrative Office 
of the United States Courts.
    ``(b) In any case in which the government files a notice of intent 
to seek the death penalty, the court shall, at the outset of any trial, 
permit voir dire of the venire concerning personal scruples with regard 
to the death penalty. The trial court shall allow strikes for cause as 
to any member of the venire whose personal views would prevent or 
substantially impair the performance of a juror's sworn duties under 
the court's instructions in a death penalty case.''.
    (b) Conforming Amendment.--The table of sections at the beginning 
of chapter 201 of title 18, United States Code is amended by striking 
the item relating to section 3005 and inserting the following:

``3005. Counsel and voir dire in capital cases.''.

SEC. 8. ADDITIONAL PROCEDURAL MODIFICATIONS.

    (a) Modification of Mitigating Factors.--Section 3592(a)(4) of 
title 18, United States Code, is amended--
            (1) by striking ``Another'' and inserting ``The Government 
        could have, but has not, sought the death penalty against 
        another''; and
            (2) by striking ``, will not be punished by death''.
    (b) Modification of Aggravating Factors for Offenses Resulting in 
Death.--Section 3592(c) of title 18, United States Code, is amended in 
paragraph (1), by inserting ``section 2339D (terrorist offenses 
resulting in death),'' after ``destruction),''.
    (c) Juries of Less Than 12 Members.--Subsection (c), as 
redesignated by section 4(6) of this Act, of section 3593 of title 18, 
United States Code, is amended by striking ``unless'' and all that 
follows through the end of the subsection and inserting ``unless the 
court finds good cause, or the parties stipulate, with the approval of 
the court, a lesser number.''.
    (d) Peremptory Challenges.--Rule 24(c) of the Federal Rules of 
Criminal Procedure is amended--
            (1) in paragraph (1), by striking ``6'' and inserting 
        ``9''; and
            (2) in paragraph (4), by adding at the end the following:
                    ``(D) Seven, eight or nine alternates.--Four 
                additional peremptory challenges are permitted when 
                seven, eight, or nine alternates are impaneled.''.
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