[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3118 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3118

To specify and clarify mens rea requirements for certain Federal crimes 
       and to establish the National Criminal Justice Commission.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 21, 2018

Mr. Hatch (for himself and Mr. Grassley) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To specify and clarify mens rea requirements for certain Federal crimes 
       and to establish the National Criminal Justice Commission.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Mens Rea Reform 
Act of 2018''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
                         TITLE I--STATE OF MIND

Sec. 101. State of mind element for criminal offenses.
Sec. 102. Inventory of Federal criminal offenses.
           TITLE II--NATIONAL CRIMINAL JUSTICE COMMISSION ACT

Sec. 201. Findings.
Sec. 202. Establishment of commission.
Sec. 203. Purpose of the commission.
Sec. 204. Review, recommendations, and report.
Sec. 205. Membership.
Sec. 206. Administration.
Sec. 207. Sunset.

                         TITLE I--STATE OF MIND

SEC. 101. STATE OF MIND ELEMENT FOR CRIMINAL OFFENSES.

    (a) In General.--Chapter 1 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 28. State of mind when not otherwise specifically provided
    ``(a) Definitions.--In this section--
            ``(1) the term `covered offense'--
                    ``(A) means an offense--
                            ``(i) specified in--
                                    ``(I) this title or any other Act 
                                of Congress;
                                    ``(II) any regulation; or
                                    ``(III) any law (including 
                                regulations) of any State or foreign 
                                government incorporated by reference 
                                into this title or any other Act of 
                                Congress; and
                            ``(ii) that is punishable by imprisonment, 
                        a maximum criminal fine of at least $2,500, or 
                        both; and
                    ``(B) does not include--
                            ``(i) any offense set forth in chapter 47 
                        or chapter 47A of title 10; or
                            ``(ii) any offense incorporated by section 
                        13(a) of this title;
            ``(2) the term `existing covered offense without a state of 
        mind requirement' means a covered offense for which--
                    ``(A) the provision or provisions specifying the 
                elements of the offense were enacted, promulgated, or 
                finalized on or before the date of enactment of this 
                section; and
                    ``(B) there is not a state of mind requirement 
                specified for 1 or more elements of the covered 
                offense, which shall be determined in accordance with 
                subsection (d)--
                            ``(i) in the text of the covered offense; 
                        or
                            ``(ii) under the precedents of the Supreme 
                        Court of the United States;
            ``(3) the term `existing covered regulatory offense without 
        a state of mind requirement' means an existing covered offense 
        without a state of mind requirement for which the provision or 
        provisions specifying the elements of the offense are in 
        regulations promulgated by an agency;
            ``(4) the term `future covered offense' means a covered 
        offense for which the provision or provisions specifying the 
        elements of the offense are enacted, promulgated, or finalized 
        after the date of enactment of this section;
            ``(5) the term `state of mind' means willfully, 
        intentionally, maliciously, knowingly, recklessly, wantonly, 
        negligently, or with reason to believe, or any other word or 
        phrase that is synonymous with or substantially similar to any 
        such term; and
            ``(6) the term `willfully', as related to an element of an 
        offense, means--
                    ``(A) that the person acted with knowledge that the 
                person's conduct was unlawful; and
                    ``(B) if the element involves the nature, attendant 
                circumstances, object, or result of the conduct of a 
                person, that--
                            ``(i) the person had knowledge of the 
                        nature, attendant circumstances, object, or 
                        result of his or her conduct; and
                            ``(ii) it was the conscious object of the 
                        person to engage in conduct--
                                    ``(I) of that nature;
                                    ``(II) with that attendant 
                                circumstance;
                                    ``(III) with that object; or
                                    ``(IV) to cause such a result.
    ``(b) Future Covered Offenses.--A future covered offense shall be 
construed to require the Government to prove beyond a reasonable doubt 
that the defendant acted--
            ``(1) with the state of mind specified in the text of the 
        future covered offense for each element of the offense for 
        which the text specifies a state of mind; and
            ``(2) except as provided in subsection (d), willfully, with 
        respect to any element of the offense for which the text of the 
        future covered offense does not specify a state of mind.
    ``(c) Existing Covered Offenses Without a State of Mind 
Requirement.--
            ``(1) Default requirement for existing statutory offenses 
        without a state of mind requirement.--
                    ``(A) In general.--On and after the date specified 
                in subparagraph (B), an existing covered offense 
                without a state of mind requirement for which the 
                provision or provisions specifying the elements of the 
                existing covered offense are in an Act of Congress 
                shall be construed to require the Government to prove 
                beyond a reasonable doubt that the defendant acted--
                            ``(i) with the state of mind specified in 
                        the text of the existing covered offense 
                        without a state of mind requirement, including 
                        any amendment made after the date of enactment 
                        of this section, for each element for which the 
                        text specifies a state of mind; and
                            ``(ii) except as provided in subsection 
                        (d), willfully, with respect to any element for 
                        which the text of the existing covered offense 
                        without a state of mind requirement does not 
                        specify a state of mind.
                    ``(B) Deadline.--The date specified in this 
                subparagraph is the earlier of--
                            ``(i) the date that is 2 years after the 
                        date on which the National Criminal Justice 
                        Commission submits the report under section 
                        101(b) of the Mens Rea Reform Act of 2018; or
                            ``(ii) the date that is 5 years after the 
                        date of enactment of the Mens Rea Reform Act of 
                        2018.
            ``(2) Existing covered regulatory offenses without a state 
        of mind requirement.--
                    ``(A) In general.--Not later than the date 
                specified in subparagraph (B), each agency that has in 
                effect an existing covered regulatory offense without a 
                state of mind requirement shall promulgate regulations, 
                after providing notice and an opportunity for comment, 
                specifying the state of mind required for each element 
                of the existing covered regulatory offense for which a 
                state of mind is not specified.
                    ``(B) Deadline.--The date specified in this 
                subparagraph is the earlier of--
                            ``(i) the date that is 3 years after the 
                        date on which the National Criminal Justice 
                        Commission submits the report under section 
                        101(b) of the Mens Rea Reform Act of 2018; or
                            ``(ii) the date that is 6 years after the 
                        date of enactment of the Mens Rea Reform Act of 
                        2018.
                    ``(C) No strict liability offenses.--The 
                regulations promulgated by an agency under subparagraph 
                (A) may not specify that an element of an existing 
                covered regulatory offense does not require any state 
                of mind be proven.
                    ``(D) Sunset.--Except as provided in subsection 
                (d), after the date specified in subparagraph (B), the 
                criminal penalty provisions of an existing covered 
                regulatory offense for which the regulations 
                establishing the elements of the existing covered 
                regulatory offense do not specify a state of mind for 1 
                or more elements shall cease to have force or effect.
                    ``(E) Rule of construction.--Nothing in this 
                paragraph shall be construed to grant an agency 
                authority with respect to establishing the mens rea 
                requirements for a covered regulatory offense that is 
                in addition to, or in lieu of, such authority provided 
                under the statute authorizing the covered regulatory 
                offense.
    ``(d) Determination That Elements Lack Required State of Mind.--
            ``(1) Failure to distinguish among elements.--Except as 
        provided in paragraph (2), if the text of a covered offense 
        specifies the state of mind required for commission of the 
        covered offense without specifying the elements of the covered 
        offense to which the state of mind applies, the state of mind 
        specified shall apply to all elements of the covered offense, 
        unless a contrary legislative purpose plainly appears in the 
        text of the statute.
            ``(2) Exceptions.--
                    ``(A) In general.--Paragraph (1) of this 
                subsection, subsection (b)(2), and paragraphs 
                (1)(A)(ii) and (2)(D) of subsection (c) shall not apply 
                with respect to--
                            ``(i) any element for which the text of the 
                        covered offense makes clear that Congress 
                        affirmatively intended not to require the 
                        Government to prove any state of mind with 
                        respect to such element;
                            ``(ii) any element of a covered offense, to 
                        the extent that the element establishes--
                                    ``(I) subject matter jurisdiction 
                                over the covered offense; or
                                    ``(II) venue with respect to trial 
                                of the covered offense; or
                            ``(iii) any element of a covered offense, 
                        to the extent that applying paragraph (1) of 
                        this subsection, subsection (b)(2), or 
                        paragraph (1)(A)(ii) or (2)(D) of subsection 
                        (c) to such element would lessen the degree of 
                        mental culpability that the Government is 
                        required to prove with respect to that element 
                        under--
                                    ``(I) precedent of the Supreme 
                                Court of the United States; or
                                    ``(II) any other provision of this 
                                title, any other Act of Congress, or 
                                any regulation.
                    ``(B) Mere absence insufficient.--For purposes of 
                subparagraph (A)(i), the mere absence of a specified 
                state of mind for an element of a covered offense in 
                the text of the covered offense shall not be construed 
                to mean that Congress affirmatively intended not to 
                require the Government to prove any state of mind with 
                respect to that element.
    ``(e) Subsequently Enacted Laws.--No law enacted after the date of 
enactment of this section shall be construed to repeal, modify the text 
or effect of, or supersede in whole or in part this section, unless 
such law specifically refers to this section and explicitly repeals, 
modifies the text or effect of, or supersedes in whole or in part this 
section.''.
    (b) Commission Report and Legislation.--
            (1) Definitions.--In this section, the term ``existing 
        covered offenses without a state of mind requirement'' has the 
        meaning given that term in section 28 of title 18, United 
        States Code, as added by subsection (a).
            (2) Submission.--Not later than the earlier of 2 years 
        after the date on which the Attorney General submits the report 
        required under section 102(b) or 3 years after the date of 
        enactment of this Act, the National Criminal Justice Commission 
        shall submit to Congress--
                    (A) a report identifying--
                            (i) the existing covered offenses without a 
                        state of mind requirement; and
                            (ii) the existing covered offenses without 
                        a state of mind requirement for which the 
                        Commission recommends that the Government not 
                        be required to prove any state of mind with 
                        respect to 1 or more elements of the offense, 
                        based on consideration of the criteria 
                        described in paragraph (3); and
                    (B) for each existing covered offense without a 
                state of mind requirement identified under subparagraph 
                (A)(ii) for which the provision or provisions 
                specifying the elements of the existing covered offense 
                without a state of mind requirement are in an Act of 
                Congress, proposed legislative language to make clear 
                the Government is not required to prove any state of 
                mind with respect to 1 or more elements of the offense.
            (3) Criteria.--The criteria specified in this paragraph 
        are--
                    (A) whether the covered offense makes criminal a 
                type of conduct that a reasonable person should know is 
                subject to stringent public regulation and may 
                seriously threaten public health or safety; and
                    (B) the potential penalty attached to a violation 
                of the covered offense, with a severe penalty 
                suggesting that the offense should not be a strict 
                liability offense.
    (c) Expedited Procedures.--
            (1) Definition.--In this subsection, the term ``joint 
        resolution'' means a joint resolution consisting of the 
        proposed legislative language submitted under subsection 
        (b)(2)(B) and introduced or reintroduced under paragraph (2) of 
        this subsection.
            (2) Introduction of proposed legislative language.--
                    (A) In general.--The proposed legislative language 
                submitted by the National Criminal Justice Commission 
                under subsection (b)(2)(B)--
                            (i) shall be introduced in the Senate (by 
                        request) by the Majority Leader or Minority 
                        Leader of the Senate or by a Member of the 
                        Senate designated by the Majority Leader or 
                        Minority Leader of the Senate not later than 30 
                        days after the date on which the proposed 
                        legislation is submitted to Congress; and
                            (ii) shall be introduced in the House of 
                        Representatives (by request) by the Speaker of 
                        the House of Representatives or the Minority 
                        Leader of the House of Representatives or by a 
                        Member of the House of Representatives 
                        designated by the Speaker of the House of 
                        Representatives or the Minority Leader of the 
                        House of Representatives not later than 30 days 
                        after the date on which the proposed 
                        legislation is submitted to Congress.
                    (B) Reintroduction.--The proposed legislative 
                language submitted by the National Criminal Justice 
                Commission under subsection (b)(2)(B) shall be 
                reintroduced as described in subparagraph (A) not later 
                than 30 days after the first day of a Congress if--
                            (i) the proposed legislative language was 
                        introduced during the previous Congress after 
                        the date that was 210 days before the date of 
                        the sine die adjournment of such previous 
                        Congress; and
                            (ii) there was not a vote in either House 
                        of Congress on passage of the joint resolution 
                        introduced under subparagraph (A) during the 
                        previous Congress by which the joint resolution 
                        was not agreed to.
            (3) Expedited consideration in house of representatives.--
                    (A) Reporting and discharge.--Any committee of the 
                House of Representatives to which a joint resolution is 
                referred shall report it to the House of 
                Representatives not later than 180 days after the date 
                on which the joint resolution is introduced or 
                reintroduced in the House of Representatives under 
                paragraph (2). If a committee fails to report the joint 
                resolution within that period, the committee shall be 
                discharged from further consideration of the joint 
                resolution and the joint resolution shall be referred 
                to the appropriate calendar.
                    (B) Proceeding to consideration.--
                            (i) In general.--After each committee 
                        authorized to consider a joint resolution 
                        reports it to the House of Representatives or 
                        has been discharged from its consideration, it 
                        shall be in order, not later than 210 days 
                        after the date on which the joint resolution is 
                        introduced or reintroduced in the House of 
                        Representatives under paragraph (2), to move to 
                        proceed to consider the joint resolution in the 
                        House of Representatives.
                            (ii) Procedure.--For a motion to proceed to 
                        consideration of a joint resolution--
                                    (I) all points of order against the 
                                motion are waived;
                                    (II) such a motion shall not be in 
                                order after the House of 
                                Representatives has disposed of a 
                                motion to proceed on the joint 
                                resolution;
                                    (III) the previous question shall 
                                be considered as ordered on the motion 
                                to its adoption without intervening 
                                motion;
                                    (IV) the motion shall not be 
                                debatable; and
                                    (V) a motion to reconsider the vote 
                                by which the motion is disposed of 
                                shall not be in order.
                    (C) Consideration.--If the House of Representatives 
                proceeds to consideration of a joint resolution--
                            (i) the joint resolution shall be 
                        considered as read;
                            (ii) all points of order against the joint 
                        resolution and against its consideration are 
                        waived;
                            (iii) the previous question shall be 
                        considered as ordered on the joint resolution 
                        to its passage without intervening motion 
                        except 10 hours of debate equally divided and 
                        controlled by the proponent and an opponent;
                            (iv) an amendment to the joint resolution 
                        shall not be in order; and
                            (v) a motion to reconsider the vote on 
                        passage of the joint resolution shall not be in 
                        order.
            (4) Expedited consideration in senate.--
                    (A) Placement on calendar.--Upon introduction in 
                the Senate, the joint resolution shall be placed 
                immediately on the calendar.
                    (B) Proceeding to consideration.--
                            (i) In general.--Notwithstanding rule XXII 
                        of the Standing Rules of the Senate, it is in 
                        order, not later than 210 days after the date 
                        on which the joint resolution is introduced or 
                        reintroduced in the Senate under paragraph (2) 
                        (even though a previous motion to the same 
                        effect has been disagreed to) to move to 
                        proceed to the consideration of a joint 
                        resolution.
                            (ii) Procedure.--For a motion to proceed to 
                        the consideration of a joint resolution--
                                    (I) all points of order against the 
                                motion are waived;
                                    (II) the motion is not debatable;
                                    (III) the motion is not subject to 
                                a motion to postpone;
                                    (IV) a motion to reconsider the 
                                vote by which the motion is agreed to 
                                or disagreed to shall not be in order; 
                                and
                                    (V) if the motion is agreed to, the 
                                joint resolution shall remain the 
                                unfinished business until disposed of.
                    (C) Floor consideration.--
                            (i) In general.--If the Senate proceeds to 
                        consideration of a joint resolution--
                                    (I) all points of order against the 
                                joint resolution (and against 
                                consideration of the joint resolution) 
                                are waived;
                                    (II) consideration of the joint 
                                resolution, and all debatable motions 
                                and appeals in connection therewith, 
                                shall be limited to not more than 10 
                                hours, which shall be divided equally 
                                between the majority and minority 
                                leaders or their designees;
                                    (III) a motion further to limit 
                                debate is in order and not debatable;
                                    (IV) an amendment to, a motion to 
                                postpone, or a motion to commit the 
                                joint resolution is not in order; and
                                    (V) a motion to proceed to the 
                                consideration of other business is not 
                                in order.
                            (ii) Vote on passage.--The vote on passage 
                        shall occur immediately following the 
                        conclusion of the consideration of a joint 
                        resolution, and a single quorum call at the 
                        conclusion of the debate if requested in 
                        accordance with the rules of the Senate.
                            (iii) Rulings of the chair on procedure.--
                        Appeals from the decisions of the Chair 
                        relating to the application of this paragraph 
                        or the rules of the Senate, as the case may be, 
                        to the procedure relating to a joint resolution 
                        shall be decided without debate.
            (5) Rules relating to senate and house of 
        representatives.--
                    (A) Coordination with action by other house.--If, 
                before the passage by one House of a joint resolution 
                of that House, that House receives from the other House 
                a joint resolution--
                            (i) the joint resolution of the other House 
                        shall not be referred to a committee; and
                            (ii) with respect to a joint resolution of 
                        the House receiving the resolution--
                                    (I) the procedure in that House 
                                shall be the same as if no joint 
                                resolution had been received from the 
                                other House; and
                                    (II) the vote on passage shall be 
                                on the joint resolution of the other 
                                House.
                    (B) Treatment of joint resolution of other house.--
                If one House fails to introduce or consider a joint 
                resolution under this subsection, the joint resolution 
                of the other House shall be entitled to expedited floor 
                procedures under this subsection.
                    (C) Treatment of companion measures.--If, following 
                passage of a joint resolution in the Senate, the Senate 
                receives the companion measure from the House of 
                Representatives, the companion measure shall not be 
                debatable.
                    (D) Consideration after passage.--If the President 
                vetoes the joint resolution, consideration of a veto 
                message in the Senate under this paragraph shall be not 
                more than 10 hours equally divided between the majority 
                and minority leaders or their designees.
            (6) Rules of house of representatives and senate.--This 
        subsection is enacted by Congress--
                    (A) as an exercise of the rulemaking power of the 
                Senate and House of Representatives, respectively, and 
                as such is deemed a part of the rules of each House, 
                respectively, but applicable only with respect to the 
                procedure to be followed in that House in the case of a 
                joint resolution, and to supersede other rules only to 
                the extent that it is inconsistent with such rules; and
                    (B) with full recognition of the constitutional 
                right of either House to change the rules (so far as 
                relating to the procedure of that House) at any time, 
                in the same manner, and to the same extent as in the 
                case of any other rule of that House.
    (d) Technical and Conforming Amendment.--The table of sections for 
chapter 1 of title 18, United States Code, is amended by adding at the 
end the following:

``28. State of mind when not otherwise specifically provided.''.

SEC. 102. INVENTORY OF FEDERAL CRIMINAL OFFENSES.

    (a) Definitions.--In this section--
            (1) the term ``criminal regulatory offense'' means a 
        Federal regulation that is enforceable by a criminal penalty;
            (2) the term ``criminal statutory offense'' means a 
        criminal offense under a Federal statute; and
            (3) the term ``Executive agency''--
                    (A) has the meaning given the term in section 105 
                of title 5, United States Code; and
                    (B) includes the United States Postal Service and 
                the Postal Regulatory Commission.
    (b) Report on Criminal Statutory Offenses.--Not later than 1 year 
after the date of enactment of this Act, the Attorney General shall 
submit to the Committee on the Judiciary of the Senate and the 
Committee on the Judiciary of the House of Representatives and make 
publicly available a report, which shall include--
            (1) a list of all criminal statutory offenses, including a 
        list of the elements for each criminal statutory offense; and
            (2) for each criminal statutory offense listed under 
        paragraph (1) and organized by Federal district where 
        applicable--
                    (A) the potential criminal penalty for the criminal 
                statutory offense;
                    (B) the number of violations of the criminal 
                statutory offense referred to the Department of Justice 
                by an Executive agency for prosecution, including 
                referrals from investigative agencies of the Department 
                of Justice, in each of the years during the 15-year 
                period preceding the date of enactment of this Act;
                    (C) the number of prosecutions for the criminal 
                statutory offense brought by the Department of Justice 
                each year for the 15-year period preceding the date of 
                enactment of this Act;
                    (D) the number of prosecutions for the criminal 
                statutory offense brought by the Department of Justice 
                that have resulted in conviction for each year of the 
                15-year period preceding the date of enactment of this 
                Act;
                    (E) the number of convictions for the criminal 
                statutory offense that have resulted in imprisonment 
                for each year of the 15-year period preceding the date 
                of enactment of this Act;
                    (F) the average length of sentence of imprisonment 
                imposed as a result of conviction for the criminal 
                statutory offense during each year of the 15-year 
                period preceding the date of enactment of this Act;
                    (G) the mens rea requirement for the criminal 
                statutory offense; and
                    (H) the number of prosecutions for the criminal 
                statutory offense in which the Department of Justice 
                was not required to prove mens rea as a component of 
                the offense.
    (c) Report on Criminal Regulatory Offenses.--Not later than 1 year 
after the date of enactment of this Act, the head of each Executive 
agency shall submit to the Committee on the Judiciary of the Senate and 
the Committee on the Judiciary of the House of Representatives and make 
publicly available a report, which shall include--
            (1) a list of all criminal regulatory offenses enforceable 
        by the agency; and
            (2) for each criminal regulatory offense listed under 
        paragraph (1)--
                    (A) the potential criminal penalty for a violation 
                of the criminal regulatory offense;
                    (B) the number of violations of the criminal 
                regulatory offense referred to the Department of 
                Justice for prosecution in each of the years during the 
                15-year period preceding the date of enactment of this 
                Act;
                    (C) the number of prosecutions for the criminal 
                regulatory offense brought by the Department of Justice 
                each year for the 15-year period preceding the date of 
                enactment of this Act;
                    (D) the number of prosecutions for the criminal 
                regulatory offense brought by the Department of Justice 
                that have resulted in conviction for each year of the 
                15-year period preceding the date of enactment of this 
                Act;
                    (E) the number of convictions for the criminal 
                regulatory offense that have resulted in imprisonment 
                for each year of the 15-year period preceding the date 
                of enactment of this Act;
                    (F) the average length of sentence of imprisonment 
                imposed as a result of conviction for the criminal 
                regulatory offense during each year of the 15-year 
                period preceding the date of enactment of this Act;
                    (G) the mens rea requirement for the criminal 
                regulatory offense; and
                    (H) the number of prosecutions for the criminal 
                regulatory offense in which the Department of Justice 
                was not required to prove mens rea as a component of 
                the offense.
    (d) Index.--Not later than 2 years after the date of enactment of 
this Act--
            (1) the Attorney General shall establish a publically 
        accessible index of each criminal statutory offense listed in 
        the report required under subsection (b) and make the index 
        available and freely accessible on the website of the 
        Department of Justice; and
            (2) the head of each Executive agency shall establish a 
        publically accessible index of each criminal regulatory offense 
        listed in the report required under subsection (c) and make the 
        index available and freely accessible on the website of the 
        agency.
    (e) Rule of Construction.--Nothing in this section shall be 
construed to require or authorize appropriations.

           TITLE II--NATIONAL CRIMINAL JUSTICE COMMISSION ACT

SEC. 201. FINDINGS.

    Congress finds that--
            (1) it is in the interest of the Nation to establish a 
        commission to undertake a comprehensive review of the criminal 
        justice system;
            (2) there has not been a comprehensive study since the 
        President's Commission on Law Enforcement and Administration of 
        Justice was established in 1965;
            (3) that commission, in a span of 18 months, produced a 
        comprehensive report entitled ``The Challenge of Crime in a 
        Free Society'', which contained 200 specific recommendations on 
        all aspects of the criminal justice system involving Federal, 
        State, tribal, and local governments, civic organizations, 
        religious institutions, business groups, and individual 
        citizens; and
            (4) developments over the intervening 50 years require once 
        again that Federal, State, tribal, and local governments, civic 
        organizations, religious institutions, business groups, and 
        individual citizens come together to review evidence and 
        consider how to improve the criminal justice system.

SEC. 202. ESTABLISHMENT OF COMMISSION.

    There is established a commission to be known as the ``National 
Criminal Justice Commission'' (referred to in this title as the 
``Commission'').

SEC. 203. PURPOSE OF THE COMMISSION.

    The Commission shall--
            (1) undertake a comprehensive review of the criminal 
        justice system;
            (2) make recommendations for Federal criminal justice 
        reform to the President and Congress; and
            (3) disseminate findings and supplemental guidance to the 
        Federal Government, as well as to State, local, and tribal 
        governments.

SEC. 204. REVIEW, RECOMMENDATIONS, AND REPORT.

    (a) General Review.--The Commission shall undertake a comprehensive 
review of all areas of the criminal justice system, including Federal, 
State, local, and tribal governments' criminal justice costs, 
practices, and policies.
    (b) Recommendations.--
            (1) In general.--Not later than 18 months after the first 
        meeting of the Commission, the Commission shall submit to the 
        President and Congress recommendations for changes in Federal 
        oversight, policies, practices, and laws designed to prevent, 
        deter, and reduce crime and violence, reduce recidivism, 
        improve cost-effectiveness, and ensure the interests of justice 
        at every step of the criminal justice system.
            (2) Unanimous consent required.--A recommendation of the 
        Commission may be adopted and submitted under paragraph (1) if 
        the recommendation is approved by a unanimous vote of the 
        Commissioners at a meeting where a quorum is present pursuant 
        to section 205(d).
            (3) Requirement.--The recommendations submitted under this 
        subsection shall be made available to the public.
    (c) Report.--
            (1) In general.--Not later than 18 months after the first 
        meeting of the Commission, the Commission shall also 
        disseminate to the Federal Government, as well as to State, 
        local, and tribal governments, a report that details the 
        findings and supplemental guidance of the Commission regarding 
        the criminal justice system at all levels of government.
            (2) Majority vote required.--Commission findings and 
        supplemental guidance may be adopted and included in the report 
        required under paragraph (1) if the findings or guidance is 
        approved by a majority vote of the Commissioners at a meeting 
        where a quorum is present pursuant to section 205(d), except 
        that any Commissioners dissenting from particular finding or 
        supplemental guidance shall have the right to state the reason 
        for their dissent in writing and such dissent shall be included 
        in the report of the Commission.
            (3) Requirement.--The report submitted under this 
        subsection shall be made available to the public.
    (d) Prior Commissions.--The Commission shall take into 
consideration the work of prior relevant commissions in conducting its 
review.
    (e) State and Local Government.--In issuing its recommendations and 
report under this section, the Commission shall not infringe on the 
legitimate rights of the States to determine their own criminal laws or 
the enforcement of such laws.
    (f) Public Hearings.--The Commission shall conduct public hearings 
in various locations around the United States.
    (g) Consultation With Government and Nongovernment 
Representatives.--
            (1) In general.--The Commission shall--
                    (A) closely consult with Federal, State, local, and 
                tribal government and nongovernmental leaders, 
                including State, local, and tribal law enforcement 
                officials, legislators, public health officials, 
                judges, court administrators, prosecutors, defense 
                counsel, victims' rights organizations, probation and 
                parole officials, criminal justice planners, 
                criminologists, civil rights and liberties 
                organizations, formerly incarcerated individuals, 
                professional organizations, and corrections officials; 
                and
                    (B) include in the final report required under 
                subsection (c) summaries of the input and 
                recommendations of these leaders.
            (2) United states sentencing commission.--To the extent the 
        review and recommendations required by this section relate to 
        sentencing policies and practices for the Federal criminal 
        justice system, the Commission shall conduct such review and 
        make such recommendations in consultation with the United 
        States Sentencing Commission.
    (h) Sense of Congress, Goal of Unanimity.--It is the sense of the 
Congress that, given the national importance of the matters before the 
Commission, the Commission should work toward unanimously supported 
findings and supplemental guidance, and that unanimously supported 
findings and supplemental guidance should take precedence over those 
findings and supplemental guidance that are not unanimously supported.

SEC. 205. MEMBERSHIP.

    (a) In General.--The Commission shall be composed of 14 members, as 
follows:
            (1) One member shall be appointed by the President, who 
        shall serve as co-chairperson of the Commission.
            (2) One member shall be appointed by the leader of the 
        Senate, in consultation with the leader of the House of 
        Representatives, that is a member of the opposite party of the 
        President, who shall serve as co-chairperson of the Commission.
            (3) Two members shall be appointed by the senior member of 
        the Senate leadership of the Democratic Party, in consultation 
        with the Democratic leadership of the Committee on the 
        Judiciary.
            (4) Two members shall be appointed by the senior member of 
        the Senate leadership of the Republican Party, in consultation 
        with the Republican leadership of the Committee on the 
        Judiciary.
            (5) Two members shall be appointed by the senior member of 
        the leadership of the House of Representatives of the 
        Republican Party, in consultation with the Republican 
        leadership of the Committee on the Judiciary.
            (6) Two members shall be appointed by the senior member of 
        the leadership of the House of Representatives of the 
        Democratic Party, in consultation with the Democratic 
        leadership of the Committee on the Judiciary.
            (7) Two members, who shall be State and local 
        representatives, shall be appointed by the President in 
        agreement with leader of the Senate (majority or minority 
        leader, as the case may be) of the Republican Party and the 
        leader of the House of Representatives (majority or minority 
        leader, as the case may be) of the Republican Party.
            (8) Two members, who shall be State and local 
        representatives, shall be appointed by the President in 
        agreement with leader of the Senate (majority or minority 
        leader, as the case may be) of the Democratic Party and the 
        leader of the House of Representatives (majority or minority 
        leader, as the case may be) of the Democratic Party.
    (b) Membership.--
            (1) Qualifications.--The individuals appointed from private 
        life as members of the Commission shall be individuals with 
        distinguished reputations for integrity and nonpartisanship who 
        are nationally recognized for expertise, knowledge, or 
        experience in such relevant areas as--
                    (A) law enforcement;
                    (B) criminal justice;
                    (C) national security;
                    (D) prison and jail administration;
                    (E) prisoner reentry;
                    (F) public health, including physical and sexual 
                victimization, drug addiction and mental health;
                    (G) victims' rights;
                    (H) civil liberties;
                    (I) court administration;
                    (J) social services; and
                    (K) State, local, and tribal government.
            (2) Disqualification.--An individual shall not be appointed 
        as a member of the Commission if such individual possesses any 
        personal financial interest in the discharge of any of the 
        duties of the Commission.
            (3) Terms.--Members shall be appointed for the life of the 
        Commission.
    (c) Appointment; First Meeting.--
            (1) Appointment.--Members of the Commission shall be 
        appointed not later than 45 days after the date of the 
        enactment of this Act.
            (2) First meeting.--The Commission shall hold its first 
        meeting on the date that is 60 days after the date of enactment 
        of this Act, or not later than 30 days after the date on which 
        funds are made available for the Commission, whichever is 
        later.
            (3) Ethics.--At the first meeting of the Commission, the 
        Commission shall draft appropriate ethics guidelines for 
        commissioners and staff, including guidelines relating to 
        conflict of interest and financial disclosure. The Commission 
        shall consult with the Senate and House Committees on the 
        Judiciary as a part of drafting the guidelines and furnish the 
        Committees with a copy of the completed guidelines.
    (d) Meetings; Quorum; Vacancies.--
            (1) Meetings.--The Commission shall meet at the call of the 
        co-chairpersons or a majority of its members.
            (2) Quorum.--Eight members of the Commission shall 
        constitute a quorum for purposes of conducting business, except 
        that 2 members of the Commission shall constitute a quorum for 
        purposes of receiving testimony.
            (3) Vacancies.--Any vacancy in the Commission shall not 
        affect its powers, but shall be filled in the same manner in 
        which the original appointment was made. If vacancies in the 
        Commission occur on any day after 45 days after the date of the 
        enactment of this Act, a quorum shall consist of a majority of 
        the members of the Commission as of such day, so long as not 
        less than 1 Commission member chosen by a member of each party, 
        Republican and Democratic, is present.
    (e) Actions of Commission.--
            (1) In general.--The Commission--
                    (A) shall, subject to the requirements of section 
                204, act by resolution agreed to by a majority of the 
                members of the Commission voting and present; and
                    (B) may establish panels composed of less than the 
                full membership of the Commission for purposes of 
                carrying out the duties of the Commission under this 
                title--
                            (i) which shall be subject to the review 
                        and control of the Commission; and
                            (ii) any findings and determinations made 
                        by such a panel shall not be considered the 
                        findings and determinations of the Commission 
                        unless approved by the Commission.
            (2) Delegation.--Any member, agent, or staff of the 
        Commission may, if authorized by the co-chairpersons of the 
        Commission, take any action which the Commission is authorized 
        to take pursuant to this Act.

SEC. 206. ADMINISTRATION.

    (a) Staff.--
            (1) Executive director.--The Commission shall have a staff 
        headed by an Executive Director. The Executive Director shall 
        be paid at a rate established for the Certified Plan pay level 
        for the Senior Executive Service under section 5382 of title 5, 
        United States Code.
            (2) Appointment and compensation.--The co-chairpersons of 
        the Commission shall designate the Executive Director and, in 
        accordance with rules agreed upon by the Commission, may 
        appoint and fix the compensation of such other personnel as may 
        be necessary to enable the Commission to carry out its 
        functions, without regard to the provisions of title 5, United 
        States Code, governing appointments in the competitive service, 
        and without regard to the provisions of chapter 51 and 
        subchapter III of chapter 53 of such title relating to 
        classification and General Schedule pay rates, except that no 
        rate of pay fixed under this paragraph may exceed the 
        equivalent of that payable for a position at level V of the 
        Executive Schedule under section 5316 of title 5, United States 
        Code.
            (3) Personnel as federal employees.--
                    (A) In general.--The executive director and any 
                personnel of the Commission who are employees shall be 
                employees under section 2105 of title 5, United States 
                Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 
                89, and 90 of that title.
                    (B) Members of commission.--Subparagraph (A) shall 
                not be construed to apply to members of the Commission.
            (4) The compensation of commissioners.--Each member of the 
        Commission may be compensated at not to exceed the daily 
        equivalent of the annual rate of basic pay in effect for a 
        position at level V of the Executive Schedule under section 
        5315 of title 5, United States Code, for each day during which 
        that member is engaged in the actual performance of the duties 
        of the Commission. All members of the Commission who are 
        officers or employees of the United States, a State, or a local 
        government shall serve without compensation in addition to that 
        received for their services as officers or employees.
            (5) Travel expenses.--While away from their homes or 
        regular places of business in the performance of services for 
        the Commission, members of the Commission shall be allowed 
        travel expenses, including per diem in lieu of subsistence, in 
        the same manner as persons employed intermittently in the 
        Government service are allowed expenses under section 5703(b) 
        of title 5, United States Code.
    (b) Experts and Consultants.--With the approval of the Commission, 
the Executive Director may procure temporary and intermittent services 
under section 3109(b) of title 5, United States Code.
    (c) Detail of Government Employees.--Upon the request of the 
Commission, the head of any Federal agency may detail, without 
reimbursement, any of the personnel of such agency to the Commission to 
assist in carrying out the duties of the Commission. Any such detail 
shall not interrupt or otherwise affect the civil service status or 
privileges of the Federal employee.
    (d) Other Resources.--The Commission shall have reasonable access 
to materials, resources, statistical data, and other information such 
Commission determines to be necessary to carry out its duties from the 
Library of Congress, the Department of Justice, the Office of National 
Drug Control Policy, the Department of State, and other agencies of the 
executive and legislative branches of the Federal Government. The co-
chairpersons of the Commission shall make requests for such access in 
writing when necessary.
    (e) Volunteer Services.--Notwithstanding the provisions of section 
1342 of title 31, United States Code, the Commission is authorized to 
accept and utilize the services of volunteers serving without 
compensation. The Commission may reimburse such volunteers for local 
travel and office supplies, and for other travel expenses, including 
per diem in lieu of subsistence, as authorized by section 5703 of title 
5, United States Code. A person providing volunteer services to the 
Commission shall be considered an employee of the Federal Government in 
performance of those services for the purposes of chapter 81 of title 
5, United States Code, relating to compensation for work-related 
injuries, chapter 171 of title 28, United States Code, relating to tort 
claims, and chapter 11 of title 18, United States Code, relating to 
conflicts of interest.
    (f) Obtaining Official Data.--The Commission may secure directly 
from any agency of the United States information necessary to enable it 
to carry out this Act. Upon the request of the co-chairpersons of the 
Commission, the head of that department or agency shall furnish that 
information to the Commission. The Commission shall not have access to 
sensitive information regarding ongoing investigations.
    (g) Mails.--The Commission may use the United States mails in the 
same manner and under the same conditions as other departments and 
agencies of the United States.
    (h) Administrative Reporting.--The Commission shall issue biannual 
status reports to Congress regarding the use of resources, salaries, 
and all expenditures of appropriated funds.
    (i) Contracts.--The Commission is authorized to enter into 
contracts with Federal and State agencies, private firms, institutions, 
and individuals for the conduct of activities necessary to the 
discharge of its duties and responsibilities. A contract, lease, or 
other legal agreement entered into by the Commission may not extend 
beyond the date of the termination of the Commission.
    (j) Gifts.--Subject to existing law, the Commission may accept, 
use, and dispose of gifts or donations of services or property.
    (k) Administrative Assistance.--The Administrator of General 
Services shall provide to the Commission, on a reimbursable basis, the 
administrative support services necessary for the Commission to carry 
out its responsibilities under this Act. These administrative services 
may include human resource management, budget, leasing, accounting, and 
payroll services.
    (l) Nonapplicability of FACA and Public Access to Meetings and 
Minutes.--
            (1) In general.--The Federal Advisory Committee Act (5 
        U.S.C. App.) shall not apply to the Commission.
            (2) Meetings and minutes.--
                    (A) Meetings.--
                            (i) Administration.--All meetings of the 
                        Commission shall be open to the public, except 
                        that a meeting or any portion of it may be 
                        closed to the public if it concerns matters or 
                        information described in section 552b(c) of 
                        title 5, United States Code. Interested persons 
                        shall be permitted to appear at open meetings 
                        and present oral or written statements on the 
                        subject matter of the meeting. The Commission 
                        may administer oaths or affirmations to any 
                        person appearing before it.
                            (ii) Notice.--All open meetings of the 
                        Commission shall be preceded by timely public 
                        notice in the Federal Register of the time, 
                        place, and subject of the meeting.
                    (B) Minutes and public availability.--Minutes of 
                each open meeting shall be kept and shall contain a 
                record of the people present, a description of the 
                discussion that occurred, and copies of all statements 
                filed. The minutes and records of all open meetings and 
                other documents that were made available to or prepared 
                for the Commission shall be available for public 
                inspection and copying at a single location in the 
                offices of the Commission.
    (m) Archiving.--Not later than the date of termination of the 
Commission, all records and papers of the Commission shall be delivered 
to the Archivist of the United States for deposit in the National 
Archives.

SEC. 207. SUNSET.

    The Commission shall terminate 60 days after the Commission submits 
the report required under section 204 to Congress.
                                 <all>