[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 149 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                 S. 149

 To address the effect of the death of a defendant in Federal criminal 
                              proceedings.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 4, 2007

Mrs. Feinstein (for herself and Mr. Sessions) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To address the effect of the death of a defendant in Federal criminal 
                              proceedings.

    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 ``Preserving Crime Victims' 
Restitution Act of 2007''.

SEC. 2. EFFECT OF DEATH OF A DEFENDANT IN FEDERAL CRIMINAL PROCEEDINGS.

    (a) In General.--Subchapter A of chapter 227 of title 18, United 
States Code, is amended by adding at the end the following:
``Sec. 3560. Effect of death of a defendant in Federal criminal 
              proceedings
    ``(a) General Rule.--Notwithstanding any other provision of law, 
the death of a defendant who has been convicted of a Federal criminal 
offense shall not be the basis for abating or otherwise invalidating a 
plea of guilty or nolo contendere accepted, a verdict returned, a 
sentence announced, or a judgment entered prior to the death of that 
defendant, or for dismissing or otherwise invalidating the indictment, 
information, or complaint on which such a plea, verdict, sentence, or 
judgment is based, except as provided in this section.
    ``(b) Death After Plea or Verdict.--
            ``(1) Entry of judgment.--If a defendant dies after a plea 
        of guilty or nolo contendere has been accepted or a verdict has 
        been returned, but before judgment is entered, the court shall 
        enter a judgment incorporating the plea of guilty or nolo 
        contendere or the verdict, with the notation that the defendant 
        died before the judgment was entered.
            ``(2) Punitive sanctions.--
                    ``(A) Death before sentence announced.--If a 
                defendant dies after a plea of guilty or nolo 
                contendere has been accepted or a verdict has been 
                returned and before a sentence has been announced, no 
                sentence of probation, supervision, or imprisonment may 
                be imposed, no criminal forfeiture may be ordered, and 
                no liability for a fine or special assessment may be 
                imposed on the defendant or the defendant's estate.
                    ``(B) Death after sentencing or judgment.--The 
                death of a defendant after a sentence has been 
                announced or a judgment has been entered, and before 
                that defendant has exhausted or waived the right to a 
                direct appeal--
                            ``(i) shall terminate any term of 
                        probation, supervision, or imprisonment, and 
                        shall terminate the liability of that defendant 
                        to pay any amount remaining due of a criminal 
                        forfeiture, of a fine under section 3613(b), or 
                        of a special assessment under section 3013; and
                            ``(ii) shall not require return of any 
                        portion of any criminal forfeiture, fine, or 
                        special assessment already paid.
            ``(3) Restitution.--
                    ``(A) Death before sentence announced.--If a 
                defendant dies after a plea of guilty or nolo 
                contendere has been accepted or a verdict has been 
                returned and before a sentence has been announced, the 
                court shall, upon a motion under subsection (c)(2) by 
                the Government or any victim of that defendant's crime, 
                commence a special restitution proceeding at which the 
                court shall adjudicate and enter a final order of 
                restitution against the estate of that defendant in an 
                amount equal to the amount that would have been imposed 
                if that defendant were alive.
                    ``(B) Death after sentencing or judgment.--The 
                death of a defendant after a sentence has been 
                announced shall not be a basis for abating or otherwise 
                invalidating restitution announced at sentencing or 
                ordered after sentencing under section 3664(d)(5) of 
                this title or any other provision of law.
            ``(4) Civil proceedings.--The death of a defendant after a 
        plea of guilty or nolo contendere has been accepted, a verdict 
        returned, a sentence announced, or a judgment entered, shall 
        not prevent the use of that plea, verdict, sentence, or 
        judgment in civil proceedings, to the extent otherwise 
        permitted by law.
    ``(c) Appeals, Motions, and Petitions.--
            ``(1) In general.--Except as provided in paragraph (2), 
        after the death of a defendant convicted in a criminal case--
                    ``(A) no appeal, motion, or petition by or on 
                behalf of that defendant or the personal representative 
                or estate of that defendant, the Government, or a 
                victim of that defendant's crime seeking to challenge 
                or reinstate a plea of guilty or nolo contendere 
                accepted, a verdict returned, a sentence announced, or 
                a judgment entered prior to the death of that defendant 
                shall be filed in that case after the death of that 
                defendant; and
                    ``(B) any pending motion, petition, or appeal in 
                that case shall be dismissed with the notation that the 
                dismissal is due to the death of the defendant.
            ``(2) Exceptions.--
                    ``(A) Restitution.--If a defendant dies after being 
                convicted in a criminal case but prior to sentencing or 
                the exhaustion or waiver of direct appeal, the personal 
                representative of that defendant, the Government, or 
                any victim of that defendant's crime may file or pursue 
                an otherwise permissible direct appeal, petition for 
                mandamus or a writ of certiorari, or an otherwise 
                permissible motion described in section 3663, 3663A, 
                3664, or 3771, to the extent that the appeal, petition, 
                or motion raises an otherwise permissible claim to--
                            ``(i) obtain, in a special restitution 
                        proceeding, a final order of restitution under 
                        subsection (b)(3);
                            ``(ii) enforce, correct, amend, adjust, 
                        reinstate, or challenge any order of 
                        restitution; or
                            ``(iii) challenge or reinstate a verdict, 
                        plea of guilty or nolo contendere, sentence, or 
                        judgment on which--
                                    ``(I) a restitution order is based; 
                                or
                                    ``(II) restitution is being or will 
                                be sought by an appeal, petition, or 
                                motion under this paragraph.
                    ``(B) Other civil actions affected.--If a defendant 
                dies after being convicted in a criminal case but prior 
                to sentencing or the exhaustion or waiver of direct 
                appeal, the personal representative of that defendant, 
                the Government, or any victim of that defendant's crime 
                may file or pursue an otherwise permissible direct 
                appeal, petition for mandamus or a writ of certiorari, 
                or an otherwise permissible motion under the Federal 
                Rules of Criminal Procedure, to the extent that the 
                appeal, petition, or motion raises an otherwise 
                permissible claim to challenge or reinstate a verdict, 
                plea of guilty or nolo contendere, sentence, or 
                judgment that the appellant, petitioner, or movant 
                shows by a preponderance of the evidence is, or will 
                be, material in a pending or reasonably anticipated 
                civil proceeding, including civil forfeiture 
                proceedings.
                    ``(C) Collateral consequences.--
                            ``(i) In general.--Except as provided in 
                        subparagraphs (A) and (B), the Government may 
                        not restrict any Federal benefits or impose 
                        collateral consequences on the estate or a 
                        family member of a deceased defendant based 
                        solely on the conviction of a defendant who 
                        died before that defendant exhausted or waived 
                        the right to direct appeal unless, not later 
                        than 90 days after the death of that defendant, 
                        the Government gives notice to that estate or 
                        family member of the intent of the Government 
                        to take such action.
                            ``(ii) Personal representative.--If the 
                        Government gives notice under clause (i), the 
                        court shall appoint a personal representative 
                        for the deceased defendant that is the subject 
                        of that notice, if not otherwise appointed, 
                        under section (d)(2)(A).
                            ``(iii) Tolling.--If the Government gives 
                        notice under clause (i), any filing deadline 
                        that might otherwise apply against the 
                        defendant, the estate of the defendant, or a 
                        family member of the defendant shall be tolled 
                        until the date of the appointment of that 
                        defendant's personal representative under 
                        clause (ii).
            ``(3) Basis.--In any appeal, petition, or motion under 
        paragraph (2), the death of the defendant shall not be a basis 
        for relief.
    ``(d) Procedures Regarding Continuing Litigation.--
            ``(1) In general.--The standards and procedures for a 
        permitted appeal, petition, motion, or other proceeding under 
        subsection (c)(2) shall be the standards and procedures 
        otherwise provided by law, except that the personal 
        representative of the defendant shall be substituted for the 
        defendant.
            ``(2) Special procedures.--If continuing litigation is 
        initiated or could be initiated under subsection (c)(2), the 
        following procedures shall apply:
                    ``(A) Notice and appointment of personal 
                representative.--The district court before which the 
                criminal case was filed (or the appellate court if the 
                matter is pending on direct appeal) shall--
                            ``(i) give notice to any victim of the 
                        convicted defendant under section 3771(a)(2), 
                        and to the personal representative of that 
                        defendant or, if there is none, the next of kin 
                        of that defendant; and
                            ``(ii) appoint a personal representative 
                        for that defendant, if not otherwise appointed.
                    ``(B) Counsel.--Counsel shall be appointed for the 
                personal representative of a defendant convicted in a 
                criminal case who dies if counsel would have been 
                available to that defendant, or if the personal 
                representative of that defendant requests counsel and 
                otherwise qualifies for the appointment of counsel, 
                under section 3006A.
                    ``(C) Tolling.--The court shall toll any applicable 
                deadline for the filing of any motion, petition, or 
                appeal during the period beginning on the date of the 
                death of a defendant convicted in a criminal case and 
                ending on the later of--
                            ``(i) the date of the appointment of that 
                        defendant's personal representative; or
                            ``(ii) where applicable, the date of the 
                        appointment of counsel for that personal 
                        representative.
                    ``(D) Restitution.--If restitution has not been 
                fully collected on the date on which a defendant 
                convicted in a criminal case dies--
                            ``(i) any amount owed under a restitution 
                        order (whether issued before or after the death 
                        of that defendant) shall be collectible from 
                        any property from which the restitution could 
                        have been collected if that defendant had 
                        survived, regardless of whether that property 
                        is included in the estate of that defendant;
                            ``(ii) any restitution protective order in 
                        effect on the date of the death of that 
                        defendant shall continue in effect unless 
                        modified by the court after hearing or pursuant 
                        to a motion by the personal representative of 
                        that defendant, the Government, or any victim 
                        of that defendant's crime; and
                            ``(iii) upon motion by the Government or 
                        any victim of that defendant's crime, the court 
                        shall take any action necessary to preserve the 
                        availability of property for restitution under 
                        this section.
    ``(e) Forfeiture.--
            ``(1) In general.--Except as provided in paragraph (2), the 
        death of an individual does not affect the Government's ability 
        to seek, or to continue to pursue, civil forfeiture of property 
        as authorized by law.
            ``(2) Tolling of limitations for civil forfeiture.--
        Notwithstanding the expiration of any civil forfeiture statute 
        of limitations or any time limitation set forth in section 
        983(a) of this title, not later than the later of the time 
        period otherwise authorized by law and 2 years after the date 
        of the death of an individual against whom a criminal 
        indictment alleging forfeiture is pending, the Government may 
        commence civil forfeiture proceedings against any interest in 
        any property alleged to be forfeitable in the indictment of 
        that individual.
    ``(f) Definitions.--In this section--
            ``(1) the term `accepted', relating to a plea of guilty or 
        nolo contendere, means that a court has determined, under rule 
        11(b) of the Federal Rules of Criminal Procedure, that the plea 
        is voluntary and supported by a factual basis, regardless of 
        whether final acceptance of that plea may have been deferred 
        pending review of a presentence report or otherwise;
            ``(2) the term `announced', relating to a sentence, means 
        that the sentence has been orally stated in open court;
            ``(3) the term `convicted' refers to a defendant--
                    ``(A) whose plea of guilty or nolo contendere has 
                been accepted; or
                    ``(B) against whom a verdict of guilty has been 
                returned;
            ``(4) the term `direct appeal' means an appeal filed, 
        within the period provided by rule 4(b) of the Federal Rules of 
        Appellate Procedure, from the entry of the judgment or order of 
        restitution, including review by the Supreme Court of the 
        United States; and
            ``(5) the term `returned', relating to a verdict, means 
        that the verdict has been orally stated in open court.''.
    (b) Conforming Amendment.--The table of sections for chapter 227 of 
title 18, United States Code, is amended by adding at the end the 
following:

``3560. Effect of death of a defendant in Federal criminal 
                            proceedings.''.

SEC. 3. EFFECTIVE DATE.

    The amendments made by this Act shall apply to any criminal case or 
appeal pending on or after July 1, 2007.

SEC. 4. SEVERABILITY.

    If any provision of this Act, any amendment made by this Act, or 
the application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of the 
provisions of this Act, the amendments made by this Act, and the 
application of such provisions or amendments to any person or 
circumstance shall not be affected.
                                 <all>