[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                    DEATH PENALTY REFORM ACT OF 2006

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 5040

                               __________

                             MARCH 30, 2006

                               __________

                           Serial No. 109-93

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
26-769                      WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                     Michael Volkov, Chief Counsel

                          David Brink, Counsel

                        Caroline Lynch, Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 30, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2

                               WITNESSES

Ms. Margaret P. Griffey, Chief of the Capital Case Unit, Criminal 
  Division, United States Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8
Mr. Robert Steinbuch, Professor of Law, University of Arkansas
  Oral Testimony.................................................    21
  Prepared Statement.............................................    22
Mr. Kent Scheidegger, Legal Director and General Counsel, 
  Criminal Justice Legal Foundation
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
Mr. David Bruck, Director of the Virginia Capital Case 
  Clearinghouse and Clinical Professor of Law, Washington & Lee 
  School of Law
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    61
Letter from Kent Scheidegger, Legal Director and General Counsel, 
  Criminal Justice Legal Foundation to the Subcommittee..........    63
``Smoke and Mirrors on Race and the Death Penalty,'' submitted by 
  Kent Scheidegger, Legal Director and General Counsel, Criminal 
  Justice Legal Foundation.......................................    67


                    DEATH PENALTY REFORM ACT OF 2006

                              ----------                              


                        THURSDAY, MARCH 30, 2006

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 11:47 a.m., in 
Room 2141, Rayburn House Office Building, the Hoonorable Howard 
Coble (Chairman of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen.
    This is a departure from our normal regular order. There's 
a vote on the floor, and I am told there will be a subsequent 
vote imminently. And the Ranking Member, the distinguished 
gentleman from Virginia, I think Mr. Scott is on the floor now. 
If that bell does ring, I'm going to have to go.
    But in the interest of time, since we have to clear this 
building at 1:30 for another hearing, I want to go ahead and 
give my opening statement now. And then, when Mr. Scott comes, 
we will hear from him, and then we will hear from our panel.
    And I apologize to you all for that. But the best-laid 
plans of mice and men, you know, sometimes go awry. And today's 
no exception.
    I welcome you all to this important hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security to 
examine H.R. 5040, the ``Death Penalty Reform Act of 2006,'' 
introduced by the distinguished gentleman from Texas, Mr. 
Gohmert.
    As I have said on previous occasions, the death penalty is 
the severest form of punishment in our country, and we must be 
vigilant in ensuring that it's meted out against only the truly 
guilty. It is imperative that we implement common sense 
procedures to ensure proper and fair application of the death 
penalty.
    The Death Penalty Reform Act proposes a variety of 
procedural reforms to improve the Federal capital system. In 
response to the Supreme Court's decision in Atkins v. Virginia, 
which prohibited the execution of a mentally retarded offender 
as unconstitutional, the bill implements procedures for the 
determination of whether a defendant is, in fact, mentally 
retarded.
    Although the Federal system prohibited such executions 
prior to Atkins, the Federal capital statutes did not have any 
specific statutes addressing how such a determination should be 
made or procedural rules for the handling of these issues. The 
bill prohibits capital punishment for mentally retarded 
defendants and contains specific notice of evidentiary 
procedures for handling such claims.
    The bill furthermore enhances the efficiency and fairness 
of capital sentencing proceedings by providing additional 
notice and preparation time and improving jury selection and 
retention procedures.
    I believe all these procedural reforms will improve the 
Federal death penalty system and provide adequate safeguards to 
ensure accurate and uniform application of our laws. I commend 
and thank Mr. Gohmert for his dedication and hard work on this 
critically important issue, and I look forward to hearing from 
today's witnesses.
    And I think, for the moment, we will just suspend. You all 
rest easy, if you will. And I, again, apologize to you for 
this. It's really no one's fault. It's just the way the system 
sometimes works, and we can't control when these votes are 
called upon.
    So you all rest easy for the moment, and we will proceed, 
hopefully, imminently. Thank you.
    [Pause.]
    Mr. Coble. Ladies and gentlemen, in the interest of time, 
if you would, the Subcommittee swears in all of our witnesses 
appearing before it. So, to save even more time, if you all 
would please rise and raise your respective right hands?
    [Witnesses sworn.]
    Mr. Coble. Let the record--you may be seated, and let the 
record show that the witnesses all answered in the affirmative. 
And I thank you for that. So that's a little bit more time 
saved.
    And I will return imminently.
    [Recess.]
    Mr. Scott. Mr. Coble is on the way back and asked me to 
give my statement. He indicated that he's sworn in the 
witnesses.
    So I'd like to thank Mr. Chairman, and I'd like to thank 
you for holding the hearing on H.R. 5040, the ``Death Penalty 
Reform Act of 2006.'' I'm disappointed, however, that we're 
considering yet another bill, this Congress, that expands the 
opportunities to seek the Federal death penalty.
    We recently expanded the death penalty applications in the 
USA PATRIOT Act renewal and the gangbusters bill and the court 
security bill, the sex offenders bill, and others. And here we 
go again, in a bill touted as a death penalty procedures bill, 
but it further expands the instances in which the death penalty 
can be sought.
    There's still no credible evidence that the death penalty, 
particularly the Federal death penalty, deters murders or other 
crimes or otherwise promotes the general interests of the 
United States. Indeed, every time we expand the situations in 
which the death penalty can be applied, we restrict further our 
ability to extradite from other countries to this country 
terrorists and other killers of Americans.
    Moreover, there's clear evidence that the Federal death 
penalty is disproportionately applied to African Americans and 
other minorities. And despite former Attorney General Reno's 
departing decision to have the Department of Justice examine 
the disturbing prevalence of minorities among those selected 
for the death penalty prosecutions and sentenced to death, no 
comprehensive and scientific examination has been made.
    And although we passed last Congress the Innocence 
Protection Act, which enacted a set of standards to protect and 
support innocents in death penalty cases, we still have not 
provided the funding necessary to fully implement the law.
    While the impact of the law on the Federal death penalty is 
limited, the death penalty--Federal death penalty practice does 
and should serve as a model for the States. Thus, we should not 
be expanding the application of any death penalty provisions 
before we provide the funding necessary to fully protect and 
support innocents.
    This bill is problematic, and it's proposed procedural 
reforms as well. One cynical evaluation of the bill suggested 
that it represents DOJ's attempt to legislate victory on every 
point on which it has lost in court in recent years.
    By adding more aggravating factors to a long list already 
in the statute and removing one of the few existing mitigating 
factors, DOJ further stacks the deck in favor of finding 
something which will hand down an argument for the death 
penalty.
    Adding obstruction of justice aggravating factor in the way 
it is now worded would allow particularly broad application of 
an easily charged factor. We see from the current Moussaoui 
death penalty case over in Alexandria that the Department of 
Justice is willing to go to great lengths to argue for a death 
penalty where it wishes to do so.
    One reason for expanding opportunities to pursue the death 
penalty is simply to ensure the impaneling of more death 
eligible juries. Death eligible juries necessarily are more 
focused on and inclined toward more severe penalties and more 
likely to convict than other juries.
    So I'm concerned that the bill's proposed structure--excuse 
me. I'm concerned with the bill's proposal to structure 
procedures for the determination of whether a defendant is 
mentally retarded and, therefore, not subject to the death 
penalty, pursuant to the Atkins case.
    First, the bill narrowly structures the definition of 
``mental retardation,'' requiring that all of several factors 
must be shown, or you can be put to death. And rather than have 
a pre-trial determination of whether a defendant is mentally 
retarded, the bill requires that a defendant be first tried by 
a death eligible jury and then found to be guilty and otherwise 
eligible for death. Then they would determine whether or not 
the defendant was mentally retarded. This virtually assures 
that a defendant's mental illness is not a factor until the 
jury has made up its mind that the defendant should die.
    Further, I cannot believe--and I can't believe that on the 
basis of fairness to the prosecution, we would consider a 
provision that turns the traditional burden of proof on its 
head. That's what we would do if we would require a defendant 
to admit up front that he committed a crime under duress or 
extreme emotional distress in order to submit this as a 
mitigating factor during sentencing.
    Yet another difficulty with the bill is its proposal to 
impanel less than 12 jurors to re-sentence an offender where 
the first jury deadlocks.
    There can be no purpose for such drastic change in the 
time-honored criminal procedures other than to ensure that it 
would be easier to obtain the verdict of death. Opponents of 
this approach would certainly not be promoting it if they 
thought that death would be less likely.
    While I understand Department of Justice's desire to win 
and its efforts to acquire more death penalties, I don't 
understand why Congress should want to further stack the deck 
in favor of prosecution in this manner.
    Mr. Chairman, I can go on with other problems with the 
bill, but we'll leave some--we'll leave that to the witnesses 
to point out some of the pros and cons. And I appreciate you, 
again, holding this hearing.
    Mr. Coble. I thank you, Mr. Scott.
    And again, the panelists and Members in the audience, I 
apologize for the delay. I want you all to hold Mr. Scott and 
me harmless for this.
    When the trains run on time, we take credit for that. When 
the trains are belated, we discharge that elsewhere. But this 
was--we did not--we can't control when the time is called for 
votes.
    I want to reiterate what I said to you earlier. We must 
clear this room at 1:30 because of a subsequent hearing that is 
scheduled herewith.
    Let me introduce the witnesses. Our first witness is Ms. 
Margaret Griffey, chief of the Capital Case Unit, in the 
Criminal Division of DOJ. Prior to assuming this role, Ms. 
Griffey served for 5 years as chief of the Capital Litigation 
Division at the Texas attorney general and as assistant 
attorney general in that division. She's also argued two cases 
before the Supreme Court.
    Ms. Griffey received her J.D. from the University of Texas 
and a master's degree from Stanford University.
    Our second witness is Mr. Robert Steinbuch, professor of 
law at the University of Arkansas at Little Rock. Professor 
Steinbuch has held numerous positions in Government, including 
counsel to the Senate Judiciary Committee, trial attorney for 
the Justice Department, and deputy senior counsel to the 
commissioner of the Internal Revenue Service.
    He earned his undergraduate and master's degrees from the 
University of Pennsylvania and his J.D. from Columbia 
University.
    Professor, is the School of Law not at Fayetteville?
    Mr. Steinbuch. There are two schools of law. One in Little 
Rock and then one in northwestern----
    Mr. Coble. Okay. I wasn't sure about that. Thank you, sir.
    Mr. Steinbuch. Sure.
    Mr. Coble. Our third witness is Mr. Kent Scheidegger, legal 
director for the Criminal Justice Legal Foundation. Mr. 
Scheidegger has written over 100 briefs in cases in the United 
States Supreme Court. His articles on criminal and 
constitutional law have been published in law reviews, national 
legal publications, and congressional reports.
    Previously, Mr. Scheidegger served for 6 years in the 
United States Air Force as a nuclear research officer. He was 
awarded his undergraduate degree from New Mexico State 
University and a law degree from the University of the Pacific.
    Our final witness today is Mr. David Bruck, clinical 
professor of law at the Washington & Lee School of Law and 
director of the Virginia Capital Case Clearinghouse. Now, 
Professor, I know of at least two Members of our body up here 
who are W&L law grads, and perhaps more than those two.
    Currently, Professor Bruck serves as one of four part-time 
Federal death penalty resource counsel to the Federal defender 
system Nation wide. Previously, he served as a county and State 
public defender in South Carolina and was awarded his 
undergraduate degree from Harvard and his J.D. from the 
University of South Carolina at Columbia.
    Good to have you all with us, folks. We adhere to the 5-
minute rule here. We are not totally inflexible about that, but 
when you see the amber light appear on the panel before you, 
that is your warning that you have 1 minute.
    And when the red light illuminates, the ice on which you 
are skating becomes ever so thin. So if you will try to wrap up 
within that 5 minutes, we would be appreciative.
    And Ms. Griffey, we'll start with you.

  TESTIMONY OF MARGARET P. GRIFFEY, CHIEF OF THE CAPITAL CASE 
  UNIT, CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE

    Ms. Griffey. Mr. Chairman, Ranking Member Scott, and 
Members of the Subcommittee, thank you for the opportunity to 
appear before you today and for inviting the Department of 
Justice to testify about this issue of great importance.
    The department applauds Congress for passing the recent 
improvements to death penalty procedures as part of the PATRIOT 
Act reauthorization, and particularly the provisions combining 
the title 21 procedures with those in title 18. But I think we 
can all agree that there is more to be done in this area.
    It is our shared goal to ensure that the death penalty is 
administered in a fair and consistent manner across the 
country. In the department's view, the Death Penalty Reform Act 
of 2006 addresses several outstanding issues that have arisen 
due to recent court decisions and the continuing evolution of 
the death penalty practice across the country.
    As we are all aware, certain court decisions have created 
the potential for either uncertainty about or the uneven 
application of death penalty procedures, and the department 
supports this effort to provide clarity and consistency in this 
critical area.
    There are few greater responsibilities of Congress or of 
the Department of Justice than ensuring that there is a Federal 
death penalty procedure in place that comports with all 
constitutional requirements, and we should act now to fulfill 
that responsibility.
    At the outset, however, I would like to respond to Mr. 
Bruck's criticism of the length of time between the indictment 
of a capital case and a decision by the attorney general 
whether to seek the death penalty. I must say that I'm 
surprised that Mr. Bruck would rush that decision or have it 
made on less than full information.
    An indictment represents a grand jury's determination that 
there exists probable cause to believe that the defendant 
committed the charged offense, hardly an adequate basis upon 
which to decide whether to seek the death penalty. The period 
between indictment and trial allows additional time for trial 
preparation, particularly for defense counsel who normally are 
the only--are only appointed following indictment.
    Following indictment, if the U.S. attorney is considering 
whether to seek the death penalty, he or she affords the 
defendant's counsel the opportunity to present the case against 
seeking to the U.S. attorney. When the case is forwarded to the 
Department of Justice, if the Committee is considering 
recommending that the death penalty be sought or simply needs 
more factual development, the defendant will again be afforded 
the opportunity to present the case against seeking.
    Defense counsel routinely ask for extended periods to 
prepare their case, ranging from several months to a year. 
Again, I want to emphasize that the department considers the 
death penalty decisions to be among the most important, if not 
the most important decisions it undertakes. Nothing less than 
the full and careful review should precede a decision to seek 
the death penalty, and I am surprised that Mr. Bruck would have 
it otherwise.
    In Atkins v. Virginia, the Supreme Court held that the 
execution of the mentally retarded offenders violates the 
eighth amendment. Although the Federal capital sentencing 
scheme already prohibited the execution of mentally retarded 
offenders, it did not provide a procedure for determining 
whether a defendant's mental disability is sufficiently severe 
to foreclose execution.
    The Death Penalty Reform Act of 2006 responds to the 
Supreme Court's decision in Atkins by providing a procedure for 
a capital sentencing jury to determine whether a defendant's 
mental retardation forecloses a death sentence.
    The legislation is consistent with all prevailing 
definitions of mental retardation. A determination of mental 
retardation would require the jury to find that, since some 
point in time prior to the age of 18, the defendant has had 
both an IQ of 70 or less and deficits in adaptive reasoning. 
The statute incorporates the limitations in adaptive 
functioning identified by the Supreme Court in Atkins.
    Mr. Bruck, however, would have us substitute the 
limitations in adaptive functioning, including in clinical 
definitions. Those definitions reflect a behavioral focus of 
diagnosticians, which is to identify an individual's need for 
services and support.
    In contrast, the focus of a mental retardation inquiry in 
the capital sentencing context is on the defendant's 
culpability. The diminished capacities identified by the 
Supreme Court reflect characteristics that, in the court's 
view, render a defendant less culpable.
    It must be recognized that a criminal defendant may have 
poor home living skills, engage little in community activities, 
and exhibit poor self-care skills for reasons independent of 
his mental capacity. There is no reason to exclude from a 
certain level of criminal responsibility someone who exhibits 
poor socialization skills if he or she is capable of running a 
complex criminal enterprise.
    The Death Penalty Reform Act would also establish a 
punishment phase procedure for determining mental retardation. 
Mr. Bruck also takes issue with this provision, claiming that 
it's fair to the defendant and less wasteful of resources for 
the determination to be made pre-trial.
    What he fails to recognize in his written testimony, but 
what I'm sure he would assert were he representing a defendant 
for whom there had been a pre-trial determination that the 
defendant was not mentally retarded, is that the Constitution 
likely requires that such a defendant be afforded an 
opportunity for the jury to determine his mental retardation.
    In other words, Mr. Bruck seeks to have two bites of the 
apple or wants to have each defendant afforded two 
opportunities to establish his mental retardation. Either that, 
or what he proposes is most assuredly a constitutionally infirm 
procedure by resolving the issue pre-trial.
    I look forward to questions later. Thank you.
    [The prepared statement of Ms. Griffey follows:]

               Prepared Statement of Margaret P. Griffey




    Mr. Coble. I thank you, Ms. Griffey.
    And the Chair will note that Professor Bruck smiled very 
warmly. [Laughter.]
    So, if facial responses are any indication, Ms. Griffey, I 
think the Professor will at least disagree agreeably.
    Thank you, Ms. Griffey.
    I don't mean to put words in your mouth, Professor. We'll 
hear from you subsequently.
    Mr. Steinbuch, good to have you with us.
    And thank you, Ms. Griffey.

TESTIMONY OF ROBERT STEINBUCH, PROFESSOR OF LAW, UNIVERSITY OF 
                            ARKANSAS

    Mr. Steinbuch. Thank you, Mr. Chairman, Mr. Ranking Member. 
It's an honor and a pleasure to be here.
    I just want to touch on three parts of this bill. First, 
dealing with the interference with the sound administration of 
justice. It's imperative that we have statutory aggravators 
that deal with this issue. We certainly need an aggravator for 
witness tampering. We certainly need an aggravator for jury 
tampering. And we need to adjust the aggravator regarding 
pecuniary gain so that killing a witness to hide the pecuniary 
gain satisfies that aggravator's standards.
    The most important part of our justice system is to have 
legitimacy and continuity. These are interfered when criminals 
know that they can kill witnesses and get away with it. This is 
the highest order of statutory--should be the highest order of 
statutory aggravator, and its absence speaks loudly and its 
correction is needed.
    Secondly, in the existing statutory scheme, the firearm 
aggravator needs to be adjusted. Currently, it is applied 
inconsistently. There is an anomaly in the legislation that 
allows it to be applied in certain death penalty cases, yet not 
in others. There doesn't seem to be any rational--rationale, 
excuse me, for this. And that needs to be made--that needs to 
be corrected.
    Finally, I would like to talk about qualifying death 
penalty juries. Some case law has developed where it has been 
suggested that death qualifying juries can take place after the 
liability phase of the trial. Supreme Court precedent has long 
well defined the boundaries of jury qualification in death 
penalty cases. Jurors may not be hanging juries, and jurors 
must be willing to impose the legally mandated sentence if 
appropriate.
    Failing to qualify a jury beforehand makes the system 
inefficient. Why would we not want to qualify a jury in the 
beginning of a trial regarding death penalty? Well, some have 
suggested that jurors who would never vote for the ultimate 
sentence are also less likely to convict defendants. We can 
draw two possible conclusions from this.
    One, perhaps anti-death penalty advocates might be trying 
to circumvent the death penalty through increased acquittals. 
This, clearly, is inappropriate. So this does not serve as an 
adequate justification for not death qualifying juries at the 
beginning of a trial.
    Some suggest that the greater statistical likelihood of 
conviction by a death qualified jury demonstrates an anti-
defendant bias. I suggest otherwise. I believe that this is an 
improper conclusion.
    This statistical difference, if it exists--and it may, 
indeed, exist--is not surprising. Jurors unwilling to apply the 
law to sentencing should equally be expected not to apply the 
law properly during the liability phase of a trial.
    Accordingly, this bill corrects the three infirmities that 
I've discussed, and I support it.
    Thank you.
    [The prepared statement of Mr. Steinbuch follows:]

                 Prepared Statement of Robert Steinbuch

    Mr. Chairman, thank you for inviting me to testify before the 
United States House of Representatives Committee on the Judiciary on 
these important issues of criminal law. I would like to discuss a few 
critical substantive issues that are of concern.

        I. INTERFERING WITH THE SOUND ADMINISTRATION OF JUSTICE

    In order for our justice system to work effectively and with 
legitimacy, deliberate wrongdoing to procure the unavailability of a 
witness or other participant in the judicial and law-enforcement system 
must not be tolerated. Such behavior, as the United States Court of 
Appeals for the Second Circuit has said, ``strikes at the heart of the 
system of justice itself.'' United States v. Mastrangelo, 693 F.2d 269, 
273 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984). As such, 
tampering with, or retaliating against, a witness, victim, or an 
informant, resulting in death should be the archetypal statutory 
aggravating factor. The murder of a law enforcement informant, or a 
witness or cooperator in a federal or state prosecution because of his/
her status as such is not only abhorrent in and of itself, but sends 
the message to criminals that sufficient wrongdoing could allow them to 
escape punishment. Similarly, the murder of a jury member or a jury 
member's family creates an incredible chilling effect on the 
willingness of honest citizens to perform their civic duty in the most 
important cases before our courts.
    The potential beneficial outcome in the eyes of criminals of 
avoiding criminal liability by killing witnesses and other relevant 
actors in the legal system creates a positive incentive for criminals 
to pursue this risky and socially devastating behavior. In order to 
create a balancing disincentive for such behavior, the costs to 
criminals must be significant. Because of the flagrant nature of these 
offenses, and the heightened interest of the government in deterring 
such action, adding such behavior to the category of the statutory 
aggravating factors is indeed appropriate and modest. The very same 
rationale led to the recent change in the Federal Rules of Evidence to 
permit the admission of hearsay statements because the witness was made 
unavailable as a result of this type of criminal wrongdoing. FRE 
804(b)(6); see also United States v. Houlihan, 92 F.3d 1271 (1st Cir. 
1996), cert. denied, 519 U.S. 1118 (1997). Criminals must be sent the 
message that interfering with the judicial system with violence will 
result in greater punishment, not less. The proposed statutory 
amendments addressing this concern are well needed and appropriate.
    Moreover, for the very same reasons, the proposed statutory 
amendment regarding the pecuniary gain aggravator is well needed. 
Currently, section 3592(c)(8) provides that the pecuniary gain 
aggravator exists when ``[t]he defendant committed the offense as 
consideration for the receipt, or in the expectation of receipt, of 
anything of pecuniary value.'' 18 U.S.C. Sec. 3592(c)(8). Courts have 
interpreted this in a manner that precludes the government from proving 
this factor in cases where the murder is committed after the pecuniary 
value has been received.
    In United States v. Bernard, 299 F.3d 467 (5th Cir. 2002), 
defendant gang members drove around in search of potential carjacking 
victims, planning to, among other things, acquire the victims Personal 
Identification Number (``PIN'') for Automatic Teller Machine (``ATM'') 
transactions. The gang members eventually ended up at a local 
convenience store where they encountered two youth ministers from Iowa. 
After successfully soliciting a ride, the gang members forced the 
couple at gunpoint to drive to an isolated location, where they robbed 
the couple of wallets and jewelry, acquired the couple's ATM PIN, and 
then forced the couple into the trunk of the car. The gang members then 
attempted to withdraw money from the ATM, drove the couple to an 
isolated spot, shot them in the head and burned the car. The court held 
that evidence in the case was insufficient to support the pecuniary 
gain aggravator because ``the application of the pecuniary gain 
aggravating factor is limited to situations where pecuniary gain is 
expected to follow as a direct result of the [murder].'' Id. at 483 
(quoting United States v. Chanthadara, 230 F.3d 1237, 1263 (10th Cir. 
2000). The court reasoned that the motivation for the robbery was 
pecuniary gain while the motivation for the murder, in contrast, was to 
prevent the robbery from being reported. Id. While this seems accurate, 
the latter motivation is by far the more insidious. It demonstrates not 
only nefarious criminal behavior but because it is a manifestation of 
an attempt to manipulate our system of justice to conceal the former to 
avoid criminal liability. The latter behavior is manifestly more 
egregious, not less. As such, it must have greater, or at the minimum, 
equivalent, negative consequences relative to the former. The 
interpretation of the pecuniary gain aggravator demonstrated in 
Bernard, unfortunately, draws completely the opposite conclusion.
    To illustrate the perverse outcome under existing caselaw, we need 
only compare Bernard with United States v. Barnette, 390 F.3d 775 (4th 
Cir. 2004). In Barnette, the defendant sought to commit a carjacking in 
order to secure transportation from Charlotte, N.C. to Roanoke, VA for 
the purposes of killing his estranged ex-girlfriend. The defendant hid 
in the bushes at a road intersection, waited for a car to stop, walked 
up to the window with a sawed-off shot gun, forced the driver from the 
vehicle, shot and killed the driver on the side of the road, and left 
with the vehicle. Id. at 781. The Fourth Circuit held that the 
pecuniary gain aggravator was applicable because the defendant 
committed the murder in order to gain the transportation. Id. at 785. 
In comparing the criminal conduct in Barnette with that in Bernard, the 
greater culpability, in fact, rests with the Defendant in Bernard. Yet, 
the aggravator was applied only in Barnette. In Bernard, the attack is 
equally upon society and the victim. In Barnette, Society is 
undoubtedly greatly impacted, but derivatively from the victim. The 
courts' approach needs to be corrected.

                         II. FIREARM AGGRAVATOR

    Current law provides another anomaly by barring the government from 
proving the firearm aggravating factor in cases where the death 
sentence is sought based on the commission of a crime of violence or 
drug trafficking crime while carrying or possessing a firearm that 
causes death. In seeking the death sentence for such a crime, the 
government is barred from proving as an aggravating factor that ``the 
defendant has previously been convicted of a Federal or State offense 
punishable by a term or imprisonment of more than 1 year, involving the 
use or attempted or threatened use of a firearm against another 
person.'' 18 U.S.C. Sec. 3592(c)(2). However, if a defendant commits an 
offense punishable by death under 21 U.S.C. Sec. 848(e), for example, 
murder while working in furtherance of a continuing criminal 
enterprise, the firearm aggravator is available.
    Thus, under current law, if a defendant previously committed a 
violent crime using a firearm and served a two-year term in state 
prison and after release commits an offense punishable by death under 
section 924(c) or (j), he will not be subject to the firearm 
aggravator. But, if a defendant previously committed a violent crime 
using a firearm and served a two-year term in state prison and after 
release commits an offense punishable by death under 21 U.S.C. 
Sec. 848(e), the firearm aggravator is applicable. If both defendants 
have satisfied the capital eligibility factors of age and intent, it is 
unclear why the previous state firearm conviction, under 3592(c)(2), 
can be used to prove a statutory aggravating factor in one case but not 
the other. Both have committed a capital eligible crime, and both have 
a similar previous criminal conviction. The purpose of this restriction 
is unclear and its application is uneven. It also seems to cut against 
the policy of deterring the use of firearms in conjunction with violent 
criminal behavior. This anomaly needs to be rationalized.

                        III. JURY QUALIFICATION

    In United States v. Green, 407 F.3d 434, 444 (1st Cir. 2005), the 
First Circuit refused to issue an opinion regarding the district 
court's practice of delaying death qualification of the jury until 
after the jury had found the defendant guilty of a capital crime. In 
its opinion, the district court reasoned that ``[i]f death-qualified 
jurors can be found among the jurors from the guilt phase, the terms of 
the statute [under Sec. 3593(b)(1)] will be followed. If none can be 
found, the jurors will be discharged for ``good cause'' shown, and the 
statute will still be followed [under Sec. 3593(b)(2)(C)].'' United 
States v. Green, 324 F.Supp.2d 311, 331 (D.Mass. 2004). This 
interpretation of Sec. 3593 is contrary to the intent of the statute 
and misapplies the ``good cause'' provision.
    Section 3593(b) provides that, in general, the sentencing hearing 
should be conducted before the jury that determined the defendant's 
guilt, unless one of four exceptions exist that justify impaneling a 
new jury. See 18 U.S.C. Sec. 3593(b)(1)-(2). One of the four exceptions 
relates to situations where the guilt-phase jury has been discharged 
for ``good cause.'' 18 U.S.C. Sec. 3593(b)(2)(C). The intent behind the 
``good cause'' provision centers on addressing situations where an 
event or circumstance, which occurs after the defendant's guilt has 
been determined, renders the guilt-phase jury unable to serve during 
the penalty phase. See Jones v. United States, 527 U.S. 373, 418 
(Ginsburg, J., dissenting) (opining that ``[d]ischarge for `good cause' 
under Sec. 3593(b)(2)(C) . . . is most reasonably read to cover guilt-
phase . . . juror disqualification due to, e.g., exposure to 
prejudicial extrinsic information or illness''); see also Green, 407 
F.3d at 441. When combined with the structure of the statute, this 
supports a conclusion that Congress intended, in Sec. 3593(b), a 
default rule--that the jury that determined the defendant's guilt also 
determines the sentence, barring some unavoidable circumstance making 
it impracticable or unfair. See Green, 407 F.3d at 441-442. Thus, the 
trial jury should be treated as the sentencing jury, and, as such, the 
trial jury must be qualified at the outset of the trial to be able to 
fulfill its obligations in the sentencing phase. In addition to 
constituting a strained reading of Sec. 3593, a contrary an approach, 
as suggested by the trial court in Green, is illogical and wastes time 
and resources.
    Indeed, pre-qualifying juries is consistent with well-established 
Supreme Court precedent. In Witherspoon v. Illinois, 391 U.S. 510 
(1968), the Court set forth the important boundaries for juries in 
death-penalty cases. As such, the Court properly held that the 6th 
Amendment protects a defendant from a predetermined ``hanging jury.'' 
Equally, the Court in Witherspoon held that prospective jurors are 
excludable if they would vote against the death penalty irrespective of 
guilt and culpability, or their personal views on the death penalty 
prevented them from making an unbiased decision regarding guilt. Thus, 
prospective jurors in death-penalty cases, said the Court, should fit 
within the extremes and be appropriately open to fairly evaluating the 
facts and sentencing the defendant pursuant to the controlling law, if 
found guilty. Witherspoon remains good law and has been reaffirmed in 
Adams v. Texas, 448 U.S. 38 (1980). In Wainwright v. Witt, 469 U.S. 412 
(1985) and Lockhart v. McCree, 476 U.S. 162 (1986), then Chief Justice 
Rehnquist further refined the previous caselaw on qualifying juries for 
death-penalty trials. And, in Morgan v. Illinois, 504 U.S. 719 (1992), 
the Supreme Court provided the same protection on the opposite end of 
the spectrum, by reaffirming the notion that jurors who would 
automatically vote for the death penalty irrespective of the facts are 
equally as objectionable. These cases clearly demonstrate the 
appropriateness and Constitutional validity of qualifying juries prior 
to trial. The qualification of the jury on the death penalty should 
occur at the outset of the capital trial and the aberrant caselaw needs 
correcting.
    Mr. Chairman, thank you for considering my remarks and I remain 
available to respond to any questions.

    Mr. Coble. Professor, you may have established a world 
record. You beat the red light by about a minute. I don't think 
that's ever happened.
    Mr. Steinbuch. I figure we could average it out.
    Mr. Coble. We will award you the gold medal.
    Mr. Steinbuch. Thank you.
    Mr. Coble. Mr. Scheidegger, good to have you with us, sir.

   TESTIMONY OF KENT SCHEIDEGGER, LEGAL DIRECTOR AND GENERAL 
           COUNSEL, CRIMINAL JUSTICE LEGAL FOUNDATION

    Mr. Scheidegger. Thank you, Mr. Chairman. Thank you, Mr. 
Ranking Member.
    I'm here today on behalf of the Criminal Justice Legal 
Foundation, which supports the rights of victims of crime and 
the law-abiding public to a fair and effective system of 
criminal justice.
    The Death Penalty Reform Act presently before the Committee 
would make a number of worthwhile changes in the Federal death 
penalty law. And in particular, the bill would make the pre-
trial notice requirements fair. The bill would require the 
defendant to give notice in mitigating circumstances, just as 
the Government is required to give notice of aggravating 
circumstances.
    However, the bill as presently drafted fails to correct and 
arguably codifies what I consider to be the most glaring defect 
in existing Federal death penalty law, which I call the 
``embassy bomber loophole.''
    In July 2001, followers of Osama bin Laden were tried and 
convicted for their role in the conspiracy to bomb America's 
embassies in Africa. On the question of penalty, most of the 
jurors believed that death was the appropriate punishment. Yet 
three jurors held out for a life sentence, and the result was 
that the decision of the three trumped the decision of the 
nine.
    Now how can this be when the law clearly states the jury's 
choice of sentence must be unanimous? Three to nine is not 
unanimous. In the guilt phase of the trial, everyone 
understands unanimous means unanimous one way or the other. If 
a jury deadlocks at 11 for guilt and 1 for acquittal, the judge 
does not enter a verdict of acquittal. That would be 
preposterous.
    The jury must deliberate until it is unanimous, and if the 
jury is truly deadlocked, the judge declares a mistrial and 
impanels a new jury. That is how the penalty phase also works 
in California and, in my opinion, what the Federal statute 
provides if correctly interpreted.
    Unfortunately, the Federal death penalty law was poorly 
drafted in this regard and does not expressly state what 
happens when the jury cannot agree. In the case of Jones v. 
United States, the Supreme Court decided that this silence, 
combined with ambiguous language about lesser sentences, meant 
that the failure of the jury to agree results in a lesser 
sentence.
    This effective abrogation of the unanimity requirement 
makes the death penalty less fair and more arbitrary, and it 
prevents the jury from serving its function as representing the 
conscience of the community.
    In 1972, the Supreme Court declared the system of unbridled 
discretion in choosing between life in prison and death to be 
unconstitutional because it was arbitrary and capricious. The 
system of guided discretion that replaced it was not for the 
purpose of reducing the number of death sentence rendered. The 
purpose was to make capital sentencing more consistent and less 
arbitrary.
    It is important that the death penalty not be arbitrarily 
imposed, and it is just as important that it not be arbitrarily 
withheld. If one murderer gets the death penalty and another 
equally or greater culpable murderer gets a life sentence on 
the random chance that his jury includes a single juror who 
refuses to impose the punishment where it is warranted, that is 
arbitrary.
    A discretionary system can never be completely uniform, but 
we should strive to make it as evenhanded as possible. 
Requiring the jury to come to unanimous agreement one way or 
the other reduces the chance of arbitrariness in either 
direction.
    The jury is supposed to express the conscience of the 
community. To perform that function, the jury must be required 
to come to agreement. If a single juror knows that he can 
impose his will over the objection of the rest of the jury 
simply by holding out, then the jury fails to perform its 
representative function.
    So I ask the Congress to restore the requirement of a truly 
unanimous jury to the Federal capital punishment law. Doing so 
will make the death penalty more fair and evenhanded, and it 
will reduce the change of miscarriages of justice such as we 
saw in the embassy bomber case.
    Thank you.
    [The prepared statement of Mr. Scheidegger follows:]

                 Prepared Statement of Kent Scheidegger

    Mr. Chairman, thank you for the opportunity to address the 
committee today on this important legislation. I am here today on 
behalf of the Criminal Justice Legal Foundation, which has for the last 
twenty-four years fought for the right of victims of crime and the law-
abiding public to a fair and effective system of criminal justice. In 
no other area of the law is this right more routinely violated than in 
capital punishment.
    The Death Penalty Reform Act of 2006 presently before the committee 
would make a number of worthwhile changes in the federal death penalty 
law. In particular, the bill will make the pretrial notice requirements 
fair. This bill will require the defendant to give notice of mitigating 
circumstances, just as the government is required to give notice of 
aggravating circumstances. However, the bill as presently drafted fails 
to correct and arguably codifies the most glaring defect in existing 
federal death penalty law, which I call the Embassy Bomber Loophole.
    In July 2001, followers of Osama bin Laden were tried and convicted 
for their role in the conspiracy to bomb America's embassies in Africa. 
On the question of penalty, most of the jurors believed that death was 
the appropriate punishment. Yet three jurors held out for a life 
sentence, and the result was that the decision of the three trumped the 
decision of the nine, and the terrorists received a life sentence.
    How can this be, when the law clearly states that the jury's choice 
of sentence must be unanimous? Three-to-nine is not unanimous. In the 
guilt phase of the trial, everyone understands that ``unanimous'' means 
unanimous one way or the other. If a jury deadlocks at eleven for guilt 
and one for acquittal, the judge does not enter a verdict of acquittal. 
That would be preposterous. The jury must deliberate until it is 
unanimous, and if the jury is truly deadlocked, the judge declares a 
mistrial and empanels a new jury. That is also how the penalty phase 
works in California, and, in my opinion, what the federal statute 
provides if correctly interpreted.
    Unfortunately, the federal death penalty law was poorly drafted in 
this regard and does not expressly state what happens when the jury 
cannot agree. In the case of Jones v. United States, 527 U.S. 373 
(1999), the Supreme Court decided that this silence, combined with 
ambiguous language about lesser sentences, meant that the failure of 
the jury to agree results in a lesser sentence. This effective 
abrogation of the unanimity requirement makes the death penalty less 
fair and more arbitrary, and it prevents the jury from serving its 
function as representing the conscience of the community.
    In 1972, the Supreme Court declared the system of unbridled 
discretion in choosing between death and life in prison to be 
unconstitutional because it was arbitrary and capricious. The system of 
guided discretion that replaced it was not for the purpose of reducing 
the number of death sentences rendered. The purpose was to make capital 
sentencing more consistent and less arbitrary. It is important that the 
death penalty not be arbitrarily imposed, and it is just as important 
that it not be arbitrarily withheld. If one murderer gets the death 
penalty, and another, equally culpable murderer gets a life sentence on 
the random chance that his jury includes a single juror who refuses to 
impose the punishment where it was warranted, that is arbitrary. A 
discretionary system can never be completely uniform, but we should 
strive to make it as even-handed as possible. Requiring the jury to 
come to a unanimous agreeement one way or the other reduces the chance 
of arbitrariness in either direction.
    The jury is supposed to express the conscience of the community. To 
perform that function, the jury must be required to come to agreement. 
If a single juror knows that he can impose his will over the objection 
of the rest of the jury simply by holding out, then the jury fails to 
perform its representative function.
    I ask the Congress to restore the requirement of a truly unanimous 
jury to the federal capital punishment law. Doing so will make the 
death penalty more fair and evenhanded, and it will reduce the chance 
of miscarriages of justice such as we saw in the Embassy Bomber case. 
Thank you.

         SUGGESTED AMENDMENT TO FEDERAL DEATH PENALTY STATUTES

    (a) Amend 18 U.S.C. Sec. 3593(b)(2) to redesignate present 
paragraph (D) as paragraph (E) and insert a new paragraph (D):
      ``(D) the jury that determined defendant's guilt was unable to 
reach unanimous agreement on the sentence;''
    (b) Amend 18 U.S.C. Sec. 3593(e) to add at the end:
    ``If the jury is unable to agree unanimously on a sentence, the 
court shall impanel a new jury for retrial of the penalty hearing; 
provided, that if the government withdraws its notice under subsection 
(a), the court shall sentence the defendant is if the notice had not 
been given.''

    Mr. Coble. Professor, the pressure is on you. These two 
guys both beat the red light. Now, Professor, Mr. Scott is my 
neighbor to the north in Virginia. Were you reared in South 
Carolina?
    Mr. Bruck. No, I was there for 30 years, and I've now moved 
to Virginia.
    Mr. Coble. Well, you're my neighbor to the south. I must 
say this. I think Mr. Scott's heard me say this before. It has 
been said that North Carolina is a valley of humility between 
two peaks of pride. I think that would be the exception over 
you and Mr. Scott. I don't think you all are that proud.
    Good to have you with us, Mr. Bruck.

TESTIMONY OF DAVID BRUCK, DIRECTOR OF THE VIRGINIA CAPITAL CASE 
 CLEARINGHOUSE AND CLINICAL PROFESSOR OF LAW, WASHINGTON & LEE 
                         SCHOOL OF LAW

    Mr. Bruck. Appreciate the invitation, Mr. Chairman. And I 
can certainly be agreeable to my friend Ms. Griffey, for whom I 
have great regard. However, I can't promise that I will break 
any speed records since I seem to be the only witness who has 
noticed the many problems in this legislation today, and I'd 
like to try to touch a few of them in the time I have 
available.
    George Will memorably remarked not long ago that 
conservatives should always recall that the death penalty is a 
Government program, so skepticism is in order. The Federal 
death penalty is a large, bureaucratic, expensive, and 
exceptionally inefficient Government program, and a lot of 
skepticism is in order.
    I was a little surprised that Ms. Griffey was so concerned 
about my having observed that the average time under Attorney 
General Gonzalez between an indictment and a decision to seek 
the death penalty is now 23 months.
    I'm not at all suggesting that these decisions should be 
made fast, but we clearly have a problem. It has its roots in a 
decision that Attorney General Reno made that every single 
death eligible case should be reviewed by the attorney general 
him or herself, even when the U.S. attorney that actually has 
to try the case doesn't want to seek the death penalty.
    This has produced tremendous backlog, tremendous delay. It 
has not produced any particular consistency. We have just as 
lopsided a racial picture on death row now as we did when this 
decision was made back in 1994.
    But I mention it because one of the provisions in this bill 
is a very strange response to a decade of complaints by Federal 
judges that DOJ takes too long to make these decisions, and it 
is too expensive. The cases are being held up at great cost to 
the taxpayers.
    And DOJ's response, or at least the response of this 
legislation, has been to say, well, we can save money by 
eliminating the entitlement to two lawyers, one of whom is 
qualified to handle death penalty cases, until the attorney 
general months and months and even years after indictment 
finally makes a decision.
    Mr. Chairman, that entitlement was passed and signed into 
law by President George Washington on April 30, 1790. It was 
enacted by the first Congress that drafted the Bill of Rights. 
We are tinkering with things now that are fairly sacred to our 
system of Government and our sense of due process in this 
country.
    I cite that not because it is the most serious problem with 
this bill, although it is a problem, but as a reminder that the 
devil is in the details in these matters, and we need to 
proceed with extreme caution.
    Some more details. The mental retardation procedures. There 
are none in Federal law right now. There may be a need for 
them, but the procedures and the definition that is proposed in 
this bill is so far from being constitutional that it will move 
the Federal Government from having been a leader in the 
development of protections for people with mental retardation 
to a retrograde outlier whose statute would be struck down by 
the Supreme Court.
    The definition of mental retardation is not a definition at 
all, but actually, a series of some of the reasons why the 
Supreme Court said that people with mental retardation can't 
get the death penalty. And this statute, if it were enacted, 
would require the jury, basically, to reconsider what the 
Supreme Court did on a case-by-case basis and to do it in the 
most unfair possible way after all the reasons to impose the 
death penalty have been set before the jury and before any of 
the reasons not to impose it have been heard by the jury.
    I'd be more than happy to work with staff and to provide 
any help that the--that we can, based on all the years of 
observation in the trenches in these cases about how this 
system ought to work. I'm not at all just saying let's do away 
with this proposal and be done with it. But clearly, there are 
some very serious problems. There are devils in these details 
that really need--need to be looked at.
    The--there is reform that could well be undertaken with 
regard to the Federal death penalty. I've mentioned one, which 
is to restore that things ought to be done again the way they 
were done in the first Bush administration, which is when a 
Federal prosecutor that's there with the evidence doesn't want 
to seek the death penalty, that's the end of it. They don't 
need permission from Washington.
    When that change was made, Attorney General Ashcroft 43 
times told local prosecutors who didn't want to seek the death 
penalty that they had to seek the death penalty. His success 
rate in those cases was 8 percent. In other words, the system 
spun its wheels at a cost of millions of dollars and produced 
almost no additional death sentences and did not improve the 
fairness of the system.
    I could go on if I had more time, which I don't. But I hope 
I've made the point that this is something that needs a very, 
very careful look.
    [The prepared statement of Mr. Bruck follows:]

                  Prepared Statement of David I. Bruck




    Mr. Coble. Well, in the spirit of equity, if you wanted--in 
view of the generosity of your two predecessors, if you want 
another minute, Mr. Bruck, you may have it.
    Mr. Bruck. I'd much rather answer questions that the 
Committee has. I think that might be more helpful, Mr. 
Chairman.
    Mr. Coble. Yes. I was hoping that the gentleman from Texas 
would be here, the primary sponsor, and I'm told he's on his 
way. So we'll get a chance to hear from him as well.
    Now, ladies and gentlemen, we impose the 5-minute rule 
against ourselves as well. So I will begin the questioning, Ms. 
Griffey, with you.
    Why, Ms. Griffey, are procedural guidelines for determining 
mental retardation needed in the light of Atkins and the 
existing prohibition on executing mentally retarded defendants?
    Ms. Griffey. They're needed because although the Federal 
statute precluded the execution of the mentally retarded, there 
were no procedures in place. And while the mental retardation 
issue had been addressed on an ad hoc basis, but through a 
variety of mechanisms--most typically a pre-trial determination 
by district courts when they hit the issue--it is our best 
understanding of the constitutional requirements that the 
determination, as I indicated in my earlier testimony, must be 
made or at least the defendant has the right to have the 
determination be made by the jury.
    So that is why we--with the constitutionalization of the 
mental retardation issue, we really do need procedures that 
conform with the Constitution.
    Mr. Coble. Mr. Steinbuch, you touched on this, but I want 
to give you a chance to expand on it. Why is the 924(c) 
exception from the firearms aggravator unfair?
    Mr. Steinbuch. It just doesn't make any sense, Mr. 
Chairman. There is a firearms aggravator for other death 
penalty qualifying crimes. But for some reason, 924(c) has an 
exception where the firearm aggravator may not be applied.
    Now if we don't want firearms to be an aggravator for the 
death penalty, then we should eliminate it. But if we want 
firearms, as I think, indeed, most on both sides of the aisle 
want, then we should have it for all death qualifying crimes.
    Mr. Coble. Mr. Scheidegger, in your testimony, you 
mentioned that provisions of the bill ``will make pre-trial 
notice requirements fair.'' Explain in a little more detail, if 
you will, how this will achieve fairness, and how might these 
provisions impact the treatment of crime victims?
    Mr. Scheidegger. Well, I think that a fact-finding 
procedure operates better when both sides have notice of what 
the procedure is going to be about and have a chance to prepare 
a rebuttal to the other side's case.
    And I think that a requirement that each side share with 
the other what factors it's going to put forward as aggravating 
or mitigating will produce a more reliable and a better truth-
seeking function in the penalty phase of the trial.
    Mr. Coble. Professor Bruck, now here's the chance for you 
to agree/disagree, I believe, because I know you and Ms. 
Griffey are not in agreement on this. Tell me again--and again, 
you touched on this, Professor--how does the provision 
requiring pre-trial notice by the defendant of mitigation 
circumstances or mental retardation violate the fifth 
amendment?
    Mr. Bruck. Mental retardation, it would not. And in fact, 
existing law, Congress and the Supreme Court just remanded rule 
12.2 of the Rules of Criminal Procedure just in December of 
2002 to require notice of expert testimony on any mental health 
issue, including mental retardation. So, in a way, there's 
really no need for a new notice provision on that.
    And clearly, there's no reason--notice for MR. When mental 
retardation is advanced as a bar, there is nothing wrong with 
requiring notice. But the idea that every mitigating factor 
should be only admissible if there has been notice, there are 
38 States with the--38 jurisdictions with the death penalty in 
this country, and not one has a rule like that. And the reason 
is that many mitigating factors, not mental retardation, but 
many of the others, would require--in effect require the 
defendant to admit that he committed the crime.
    Mitigating factors, such as he acted--the defendant acted 
under duress in the commission of the murder, or he committed 
the murder while under the influence of mental or emotional 
disturbance. You can't file notice of that as your mitigating 
factor, and this actually requires it be signed by the 
defendant, unless you admit you did the killing.
    And that's why none of the 38 States have that requirement 
because that violates the fifth amendment. You haven't been 
tried yet. It's much too early. This is simply not a 
requirement.
    Mr. Coble. Ms. Griffey, I'll give you a chance to respond 
subsequently. But for the moment, I'm going to take a page from 
Mr. Steinbuch and Mr. Scheidegger's book and recognize the 
gentleman from Virginia before my red light illuminates.
    Mr. Scott. Thank you, Mr. Chairman.
    There's a prohibition against using sentiment as a 
consideration in applying the death penalty. Mr. Bruck, can you 
indicate what--how you can do that if you're allowing victim 
impact statements?
    Mr. Bruck. Yes. There is a provision in this legislation to 
tell the jury to allow no influence of sympathy or sentiment or 
passion, prejudice, or any other arbitrary factor. There's 
nothing wrong with an instruction that says not to be carried 
away by emotion, but this instruction is very different.
    It--and in particular, as I pointed out in my prepared 
remarks, it pushes the constitutional envelope. The whole point 
of mitigation is to try to show that even though a man 
committed murder, there are still reasons that he deserves some 
small amount of sympathy, enough to let him have life in prison 
rather than death.
    To tell the jury not to be influenced by any influence of 
sympathy violates that constitutional provision. Now this isn't 
something that we can--we can follow or not if we choose. This 
is a constitutional requirement imposed in case after case by 
the United States Supreme Court, beginning with Woodson v. 
North Carolina in 1976 and going straight on until today.
    So, again, the devil is in the details. There could be an 
argument, and perhaps the Department of Justice will win a 5-4 
decision saying this pushes the envelope, but not too far. But 
why risk it? These are the kinds of things that really 
shouldn't be--shouldn't be trifled with.
    Mr. Scott. What about sympathy on behalf of the victim? If 
you have the witness--the victims parading before the jury, 
presumably eliciting emotional--an emotional response, how does 
that play?
    Mr. Bruck. Well, there is something a little inconsistent 
about now that we have victims able to testify so broadly, the 
survivors, which is not something--I mean, I understand why 
it's being done, why the Supreme Court allowed it. But then to 
turn around and say, ``Oh, and don't be influenced by 
sympathy.'' It's a little illogical. The why did we hear all 
that testimony if we're not supposed to have any sympathy?
    The real point of an instruction not to be influenced at 
all by sympathy is to try to convey to the jury what 
prosecutors try to do naturally in their closing argument, 
which is to say to the jury, ``Don't use your heart. Don't be a 
human being. Don't look at all aspects of this. Just be sort of 
a calculator, a machine.'' And you know, total up the 
aggravators and mitigators and don't use really human common 
sense in deciding what is, after all, a moral judgment, the 
Supreme Court has told us, these sorts of add-ons to this.
    You know, it's true that the Justice Department has had 
relatively little luck in getting anybody sentenced to death. 
There are 42 people on death row right now, and there have been 
3 executions. But these little bells and whistles to try to 
grease the skids are not going to make any appreciable 
difference. All it's going to do is put these statutes at some 
constitutional risk.
    Mr. Scott. Should lack of moral certainty of guilt be a 
mitigating factor?
    Mr. Bruck. Yes, I think it should. And it probably already 
is, informally. It's probably the oldest reason why juries have 
declined to seek the death penalty since there was--has been 
jury sentencing more than 100 years ago.
    If we're going to--if we're going to make some fixes in 
this bill, making that explicit, whether it's constitutionally 
required or not--good grief, we've seen enough innocent people 
being found on our Nation's death row. President Clinton had to 
commute a sentence at the request of the attorney general's 
office, someone who had exhausted all of his appeals because of 
doubt about his innocence, about his guilt.
    And of course, the jury ought to be able to consider 
whether it's certain enough to convict, but not certain enough 
to execute.
    Mr. Scott. The obstruction of justice factor, do I 
understand the--I think what they're trying to get at is that 
you're killing the witness in that case. The way it's worded--
--
    Mr. Bruck. Yes.
    Mr. Scott. What's the problem with the wording of the 
case--of that----
    Mr. Bruck. Well, I should say that I understand from 
majority staff that this is something that they already intend 
to correct. As it's written now, this would--if somebody had 
threatened to hurt a witness 20 years ago, that would be an 
aggravating factor. And I think that's not what they actually 
intended.
    This should be--if we're going to add yet another 
aggravating factor, this should be very narrowly drawn. It 
should be made clear that it not only doesn't apply to a threat 
20 years ago, that it has to relate to the murder that they're 
sentencing for. But it should also make clear that it doesn't 
apply to everyone who might become a witness. It should only 
apply to someone whose motivation is to obstruct an ongoing 
prosecution.
    Otherwise, this will be the universal aggravator. Someone 
goes into a store with no premeditation, no advance planning, 
no prior record, and on and on and on, and shoots the clerk. 
And the Government could say, well, they probably shot the 
clerk because they were afraid the person would be a witness. 
Therefore, this aggravator applies. That is much too broad.
    Mr. Scott. Can I ask one additional question?
    Mr. Coble. Without objection.
    Mr. Scott. Just a kind of a general statement is do we have 
evidence that a death eligible jury is more likely to convict?
    Mr. Bruck. Yes. Absolutely. The Supreme Court has, by a 
vote of 6-3, said that it's close enough for Government work 
and has allowed it.
    But there's no doubt that juries that are picked, where the 
willingness to impose the death penalty is a requirement for 
serving on the jury, and that's the way we do it now, is a jury 
that is more likely than a normal jury, a regular American 
jury, to find the defendant guilty in the first place. And that 
increases the risk of executing--of convicting and executing 
the innocent.
    Mr. Coble. I thank the gentleman from Virginia.
    Now, as a general rule, ladies and gentlemen, we usually 
restrict opening statements to the Chairman and the Ranking 
Member. But the introducer of the bill is a Member of the 
Subcommittee. So, without objection, I'll recognize the 
distinguished gentleman from Texas for an opening statement, 
symbol for dash, examination of the witnesses.
    The gentleman from Texas.
    Mr. Gohmert. Thank you so much, Mr. Chairman.
    I really appreciate this opportunity, and I thank you for 
holding this hearing today on a bill that I think will clarify 
some of the areas of death penalty law that are currently in 
flux due to the things such as the Supreme Court decision in 
Atkins v. Virginia.
    Now, it falls on Congress to promulgate statutory 
provisions that are both fair to the accused and fair to the 
victim's family, and this bill clarifies certain aggravating 
factors in death penalty cases, and it firms up notice 
requirements for both sides, the prosecution and the defense.
    Having presided over three death penalty cases during my 
tenure on the bench and having been court appointed as counsel 
for a convicted capital murderer it turns out should not have 
been convicted, and the job I did was able to reverse that 
case. That's not a case of the system not working. It's a case 
of a good lawyer helping the system to work, all humility 
aside.
    But it appears that in the areas of a sentencing, the 
various districts across the country have interpreted different 
provisions in different ways. And this bill seeks to bring 
consistency to the process and especially when the life of an 
individual is in the hands of our justice system.
    And I'd like to address a few things that Mr. Bruck had 
indicated with regard to a death eligible jury convicting in a 
higher percentage of cases. There are a number of factors at 
work there, I would point out.
    First of all, if you've been involved in death penalty 
prosecutions or death penalty cases, you know that prosecutors 
do not do that lightly. And because of the tremendous amount of 
expense incurred simply as a result of pursuing the death 
penalty, DAs, prosecutors don't want to do it unless they have 
a very solid case. Otherwise, it wastes hundreds and hundreds 
of thousands of dollars.
    So I would indicate and I would submit humbly that, you 
know, there aren't many of those capital murder cases that go 
to trial where they don't feel good about the evidence as far 
as producing a conviction. Otherwise, they don't go there.
    With regard to the sympathy factor, you know, in the case 
of Saffle v. Parks, the Supreme Court of this glorious United 
States had dealt with that issue, and they dealt with an 
instruction there that said you must avoid any influence of 
sympathy, sentiment, passion, prejudice, or other arbitrary 
factor when imposing sentence.
    And Mr. Bruck, you had referred to the fact that we should 
use human common sense, and as a former judge and chief justice 
and prosecutor and defense attorney, all, my experience is if 
you let sympathy either for the victim, which is often a 
problem, or sympathy for a defendant rule, then common sense 
often has to take a back seat, and that's what we're trying to 
avoid.
    And you've mentioned that we've found enough innocent 
people on death row, well, I had a client that was on death 
row. But the system worked, and he came off death row.
    So I think we have a good system. But because capital 
murder is such a serious matter, it does require continually 
tweaking. Unfortunately, we have a Supreme Court that not only 
can't observe precedent, they can't even observe their own 
precedent and often subject their opinions to the fleeting 
whims that appear more like something a child's daydream would 
happen.
    And that makes it tough for those of us trying to follow 
the law when we were judges, prosecutors, defense attorneys, 
when you haven't got any consistency on the Supreme Court. And 
you did rightfully mention about the threat provision. And you 
had said you understood that may be corrected in the future. I 
did want to let you know the original draft did not have that 
in there, and that I'd worked on and that the wonderful 
Judiciary staff had worked on.
    And apparently, DOJ made that submission without my 
approval. And as soon as I caught it, that was yanked out of 
there. So that has already been changed and corrected. Whereas, 
I don't want something in the bill that I felt like going in is 
just not going to work. So you obviously noticed the same 
thing.
    But anyway, fortunately, with the scrutiny of staff and 
Committee and colleagues, I think we have come to a fairly good 
bill that will assist in this death penalty tweaking to satisfy 
the ongoing, evolving will of our wonderful, illustrious 
Supreme Court.
    So with that, I yield back--well, actually, my time is up. 
But Mr. Chairman, thank you for the hearing. Thank you for this 
opportunity.
    Mr. Coble. You're indeed welcome. And I say to you, Mr. 
Gohmert, we'll be glad for you to hang around. We're going to 
have a--we seem to have a pretty good handle on time. So I'm 
going to commence a second round. And Mr. Gohmert, I'll be glad 
for you to remain for that if your time permits.
    Mr. Scott and I--I only have one more question, and I'm 
going to give Ms. Griffey a chance to respond and also the 
other two witnesses, if you feel so obliged, to Mr. Bruck's--
Professor Bruck's comment regarding the fifth amendment.
    Ms. Griffey. Yes. Thank you for that opportunity.
    The fifth amendment would not, under any circumstances, be 
violated by the requirement that they identified, the 
mitigating factors that the defendant will rely on. The fifth 
amendment is not violated unless a compelled incriminating 
statement is used against a defendant in a criminal case.
    It's not violated. You--that's--if you would like, I saw a 
frown up there. The Supreme Court case is Chavez v. Martinez. 
It's a 2003 case. Chavez v. Martinez, 538 U.S. 760.
    And of course, it's been well established the requirement 
that you give a variety--notice of a variety of defenses 
doesn't violate the fifth amendment. So just the fact that you 
have to provide notice does not violate the fifth amendment.
    Mr. Coble. Gentlemen, either of you wanted to weigh in on 
this?
    Mr. Steinbuch. Mr. Chairman, uncharacteristically, I have 
no comment on this issue. [Laughter.]
    Mr. Coble. Mr. Scheidegger?
    Mr. Scheidegger. No, I think Ms. Griffey covered it. Thank 
you.
    Mr. Coble. And Ms. Griffey, the Professor continues to 
smile. So I'll--do you want to have a rebuttal on this, 
Professor?
    Mr. Bruck. Well, I would note that--I mean, I've expressed 
my view generally. I would note that the statute as drafted 
actually requires that the defendant sign--sign his name to the 
mitigating factors which, on their face, admit to having 
committed the crime.
    I don't--there are many ways to violate the fifth 
amendment, including allowing the Government to make derivative 
use, and then there would be all sorts of hearings about 
whether the Government benefitted unfairly pre-trial by having 
a written, signed notice from the defendant detailing the 
circumstances of the offense.
    There is a reason why none of the other 38 States have 
anything like this, and I would suggest that----
    Mr. Coble. Well, and I'll give the distinguished gentlemen 
from Virginia and Texas, respectfully, a chance to respond as 
we go along. Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Just to follow up on that, Ms. Griffey, would sometimes to 
get the mitigating circumstances, factors, you have to 
essentially admit to the crime. Can that admission be used 
against the defendant in the prima facie case?
    Ms. Griffey. No.
    Mr. Scott. No?
    Ms. Griffey. No.
    Mr. Scott. Can the information--investigatory information 
that you glean from the fact that he's admitted to it be used 
to help the investigation?
    Ms. Griffey. The situation is no different than if the 
defendant filed a notice of an insanity defense. It, you know, 
nobody is going to stand--no prosecutor is going to stand up in 
the courtroom and say that defendant admitted that he was 
insane at the time, so he must be admitting that he did it. 
That's just not something that's going to happen.
    It would be a fifth amendment violation for sure to do 
that. But it is the fifth amendment that protects against such 
actions. It's not--just merely requiring notice is not a fifth 
amendment violation.
    Mr. Scott. So the prosecution doesn't get undue advantage 
by extorting an admission of guilt from the defendant?
    Ms. Griffey. They're not extorting an admission of guilt. 
They are requiring notice that they intend--that the defendant 
intends to rely on a factor such as duress or other factor. 
This is no different from insanity or any other sort of defense 
that the defendant raises.
    And what it does is it creates a level playing field. These 
cases are too important to be--to have the outcome be 
determined by surprise or hiding the ball. What we need to do 
is to have each side know what is going to be at issue and for 
each side to be able to test the evidence that is being put 
into--into the case.
    Mr. Scott. Well, a level playing field is inconsistent with 
the presumption of innocence. Is it not?
    Ms. Griffey. Well, I don't see that as being inconsistent 
at all. I don't understand your question, I guess.
    Mr. Scott. Well, you go in a civil trial with a level 
playing field. All you've got to prove is preponderance of 
evidence. There's no presumption one way or the other.
    In a criminal trial, you're supposed to go in with an 
unlevel playing field. The prosecution has to prove the case. 
Not only prove it, but prove it beyond reasonable doubt. That's 
not a level playing field.
    Ms. Griffey. I think we're talking apples and oranges here. 
There's the--the burden of proof is one thing, and the due 
process and ability to establish the facts are another.
    Mr. Scott. Let me ask you a couple of background questions, 
if I can, Ms. Griffey? What is the present law, and what would 
the bill do for co-defendant--the penalty given to a co-
defendant?
    What is the present law on the admissibility of that 
information, and what would this bill do to that present law?
    Ms. Griffey. It would change it so that the only way in 
which you could have--the only way in which you could claim 
entitlement to the statutory mitigating factor would be if 
there was a defendant against whom the Government could have 
sought the death penalty, but declined to do it.
    You would not be entitled to a--the benefit of the 
statutory mitigating factor if, for example, a co-defendant was 
ineligible for the death penalty either because they had to be 
extradited from a foreign country or because he was underage 
and such.
    And I did see Mr. Bruck claimed that that would create a 
disparate situation in terms of the outcome. But, of course, 
the focus of the sentencing phase is on a defendant's 
culpability.
    Mr. Scott. Well, just simply the present law and how this 
would change the present law?
    Ms. Griffey. It would restrict the defendant's ability to 
claim the benefit of statutory mitigation. I don't think it 
would foreclose him claiming mitigation based on an ineligible 
co-defendant is nonstatutory mitigation. And there's very 
little difference between the two.
    Mr. Scott. Another kind of background question. What is the 
law now, and what would the law be, if this bill were to pass, 
on people--on the felony murder, where the person--where the 
defendant is not the triggerman? Can a person who is not the 
triggerman be given the death penalty under Federal law, and 
would that change that?
    Ms. Griffey. Yes, they can be given the death penalty under 
Federal law. The Federal law provides for at least four 
different threshold intent factors. And for example, in 
carrying out a robbery in which everybody goes in carrying a 
gun, only one person is the trigger person. Nonetheless, that 
person engaged in a dangerous act, knowing that it could create 
a risk of death to the victim.
    So, yes, a non-triggerman can--or you know, somebody can 
commission a murder and order it and not be the triggerman.
    Mr. Scott. What about the driver in the case? You drive the 
four or five people. One's a driver. Four go in with guns. Can 
the driver get the death penalty along with the rest of them?
    Ms. Griffey. That depends on what the driver knew.
    Mr. Scott. Mr. Bruck, do you have any other comments on 
that, on either question?
    Mr. Bruck. On the last, second to last issue you put to Ms. 
Griffey about the equally culpable co-defendant. I was very 
struck that Ms. Griffey just now said it really doesn't change 
anything that much because the jury can still consider other 
kinds of unfairness between co-defendants other than 
prosecutorial decision-making.
    And I was very surprised to hear her say that because it's 
obvious that if this passes, Federal prosecutors will be 
arguing to judges not only that juries cannot consider anything 
that is not here because Congress ruled that out as a 
mitigating--as a mitigating factor, but also that the 
Government is entitled to a jury instruction.
    And that saying you may not consider the fact that there 
are three people equally guilty of this, but only this man is 
on trial for his life, and the others are going to get a lesser 
sentence. And moreover, I bet they're going to move, and judges 
will say that lawyers for the defense can't even argue that to 
the jury.
    Because when Congress speaks, judges listen. This is a very 
mischievous provision, and----
    Mr. Scott. I don't know if that's good or bad. But go 
ahead. [Laughter.]
    Mr. Bruck. I'm not going to respond to that, Mr. Scott. I 
just think that I was very surprised to hear the Justice 
Department say that it really won't change the way these cases 
are tried, when I think we all know perfectly well that it 
will.
    Mr. Coble. Professor, I'm not thoroughly convinced that 
they always listen to us, but that's for another day.
    We've been joined by the distinguished gentleman from Ohio, 
Mr. Chabot.
    And the Chair recognizes the gentleman from Texas.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Just a couple of other things. Mr. Bruck raised a good 
issue about mitigation being signed by the defendant because if 
that were to go before the jury that, gee, he signed in advance 
basically tantamount to an admission, that would be a problem. 
And the fifth amendment protects that.
    To me, it's a bit like in non-capital cases in Texas, a 
defendant has to make an election in writing before the case 
ever starts as to who will do the sentencing, either the judge 
or the jury. Well, that is not an admission of guilt. It's 
just--and it's never to be taken that way or anything of that 
nature. The fifth amendment protects that.
    But it's just the procedure. You've got to sign that in 
advance, and if you don't make a choice, then your choice is 
made for you. But that has to be done in advance, and the fifth 
amendment protects that being taken or used as somehow an 
admission against interest.
    So I see that in the same way, and I would certainly want 
to protect the fifth amendment rights. They work pretty well 
for us so far, and I want to see that continue. So I would 
expect that not to ever be an issue.
    As far as good questions, my friend Mr. Scott regarding 
whether someone not the triggerman might ever get the death 
penalty, and it's a good issue, good question about whether a 
driver might ever get that.
    Of course, Ms. Griffey pointed out appropriately, it 
depends on what he knew. And if the evidence isn't there to 
establish basically that he reasonably knew somebody was 
probably going to get killed, then the death penalty will not 
be appropriate there.
    You can't just hail somebody off the street, and they don't 
know you're going to go in and probably kill somebody in 
robbing a place. There has to be much more evidence than that.
    And again, sympathy for the victims in the case is just not 
enough to ever give somebody the death penalty. So either 
sympathy for victims or the defendant or the defendant's family 
is just not to be the issue, but whether there is evidence to 
support those things.
    I really do wish that when Congress spoke that all the 
judges listened because that's--I think we need some people 
with hearing aides maybe on the court so that they do hear 
better.
    But I do appreciate the testimony of the witnesses. I 
appreciate your input. I appreciate what each of you do in 
order to protect the integrity of our system. That's the only 
way we plod on forward.
    And thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman from Texas.
    And we need to vacate this room before too long, but I want 
to recognize the gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman.
    I apologize for being somewhat late for this hearing, 
having had some conflicts. And I'll be brief in my questions 
since we do have to vacate the room.
    It's my understanding, if I could start with you, Mr. 
Bruck, that in your testimony you said that--I believe I'm 
correct in this--that there is no place in a trial for victims' 
impact statements or victims' testifying relative to the--to 
the situation, and you shouldn't risk tainting the jury. Was 
that your testimony in general?
    Mr. Bruck. No. No, it was a question of what should happen 
in what order. There's no doubt that victims have--surviving 
members of victims' families have a statutory right to testify 
and have the jury hear the grief that they have suffered and 
the impact of the crime on their lives.
    The question is whether the jury's decision about mental 
retardation as a bar should happen before or after the jury has 
been subjected to what is undeniably, whichever side of the 
aisle you sit on, very, very emotionally wrenching and powerful 
testimony that hasn't a thing in the world to do with whether 
the defendant is eligible for the death penalty by reason of 
mental retardation.
    It's a question--there are many things that we do in a 
certain order in a criminal trial in order to protect the 
rights of the accused. And this is an example of something 
where the order, I think, is backwards in this legislation.
    And it's the reason why most States implement Atkins v. 
Virginia by having the judge decide before trial and before 
millions of dollars or thousands and thousands of dollars are 
spent on a capital trial whether there's any point going 
through all this or whether this man is ineligible because of 
mental retardation. That's the proper order.
    And if you're going to have the jury make the decision, 
which is not the better way to do it, at least have the jury do 
it when they can focus on that issue and not after they've 
heard all of the reasons why this guy ought to get the death 
penalty, mental retardation or no mental retardation, which is 
a very human reaction.
    Mr. Chabot. Because I--it's my belief that the role of the 
victim or the victim's family is really critical and one of the 
things that too often does get short shrift. And it's one of 
the reasons that I proposed a victims' rights constitutional 
amendment. Our Chairman, former Chairman Henry Hyde had 
originally proposed it, and we took up the mantle when Henry 
left the Committee.
    And it's always been my view that when you consider that 
the defendant's rights are protected in our Constitution, and 
the victim's rights, on the other hand, are sometimes 
statutorily protected, sometimes not. But if the two come into 
conflict, the Constitution's going to trump the statute every 
time. And there are a number of instances where this has 
happened.
    We haven't had the votes, quite frankly, to pass that 
constitutional amendment. We've only amended the Constitution 
27 times in our Nation's history, and the first 10 times, of 
course, were the Bill of Rights. So that leaves 17.
    And of those 17, 2 of those were--canceled each other out, 
Prohibition and then doing away with that. So it's only 15 
times. So we really don't do that very often.
    That being the case, in order to protect victims, we did 
pass some, I think, helpful legislation which did emphasize 
more victims' rights about a year or two ago. It didn't go 
quite as far as a lot of us would have liked it to, but I think 
it's a step in the right direction.
    So anything that we can do to elevate the rights of 
victims, whether it's a death penalty case or not, I would 
certainly like to take the opportunity to do that.
    Would any of the other members of the panel like to comment 
relative to victims' rights and the issue that Mr. Bruck just 
discussed? Have any input they'd like to give us on that?
    Mr. Scheidegger?
    Mr. Scheidegger. Yes, I'd like to address that, as far as 
the sympathy instruction goes. Because of the decision of 
Lockett v. Ohio, where the Supreme Court read into the 
Constitution a requirement to introduce practically anything 
the defendant wants, death penalty proceedings have become more 
emotional than necessary, and the victim impact statements are 
brought in, in part, to rebalance the scale.
    I would like to see less emotional testimony on both sides, 
but we're kind of stuck with what we have. But I do think it is 
appropriate to instruct the jurors to make their decisions 
based on objective circumstances and not on sympathy, even 
though they are inclined to be sympathetic.
    The victim impact testimony is about the impact of the 
crime on not only the direct victim of the homicide, but on 
other people, and that is a circumstance for them to consider 
rationally. And I think an instruction to consider that not 
based on sympathy is an appropriate one for both sides of the 
aisle.
    Mr. Chabot. Thank you very much, Mr. Chairman. I see that 
my time has expired here.
    Mr. Coble. I thank the gentleman from Ohio.
    And folks, as I did not exhaust my full time, I want to put 
two brief questions. We're going to have a vote here before 
long.
    Ms. Griffey, you mentioned in your testimony that the bill 
places the burden of proof--strike that. That the bill places 
the burden of proof for mental retardation determination upon 
the defendant. Is this type of burden shifting present in other 
areas of prosecution?
    Your mike's not on.
    Ms. Griffey. Yes, it is. In terms of a variety of defenses. 
We took a very, very careful look at all of the remotely 
applicable Supreme Court precedent, and we concluded that it 
was best to put the burden on the defendant by a preponderance 
of the evidence.
    Mr. Coble. What would be some other instances where that 
occurs, the shifting?
    Ms. Griffey. Well, the burden is on the defendant to prove 
insanity. The burden is on the defendant to prove a variety of 
defenses such as that. The burden--what is a constitutionally 
permissible burden depends on a variety of factors in terms of 
the analysis.
    Mr. Coble. Right. I got you.
    Mr. Steinbuch, very briefly. In your testimony, you 
stressed the importance of pre-qualifying jurors for both the 
trial and sentencing phase. Why is this important, A? And B, do 
these types of questions on prospective jurors have the 
potential to create a bias toward guilt?
    Mr. Steinbuch. Thank you, Mr. Chairman.
    This is important for our system to work efficiently, 
simply. We need to have juries that are willing to impose the 
law. If the law is the possibility of a death sentence, it 
makes no sense to have a jury that says ahead of time, we won't 
follow the law.
    And as for the bias issue, as my co-panelist has said, 
there has been demonstrated some statistical difference between 
juries that are death qualified and juries that are not death 
qualified, although I would not characterize the latter as 
``normal juries.''
    And as I said previously, I suspect that the bias or, 
indeed, the statistical aberration is not a bias, but a 
reflection of the fact that the jurors are willing to follow 
the law, both in the sentencing phase and in the guilt phase.
    Mr. Coble. Well, Professor, is pre-qualification used in 
other States? And if so, how many? Or do you know?
    Mr. Steinbuch. You know, I'm probably not the best--the 
practitioners are probably the best to answer that question. 
I'm confident it is done, but I don't know----
    Mr. Coble. You can get that to us. We're going to leave the 
record open for 7 days anyway.
    Mr. Scott, any more questions?
    Mr. Scott. Yes. Mr. Steinbuch, as you death qualify the 
jury, just demographically, isn't that also a nice way to 
reduce the number of African Americans on the jury?
    Mr. Steinbuch. I have seen no statistics that demonstrate 
that one way or the other. So I can't comment on that.
    Mr. Scott. Statistics show that death penalty is about 50 
percent in the African-American community and about 80 percent 
everywhere else. Doesn't that give you a better shot at back-
door striking African Americans from the jury?
    Mr. Steinbuch. Well, I mean, I think it gives you a better 
shot at back-door subverting the sentencing procedures enacted 
by Congress. So if those two factors coincide statistically, 
that may be the case, yes.
    Mr. Scott. Just another point, Mr. Chairman.
    When you do insanity and some of these other things that 
you have to kind of give notice on, you get in your case-in-
chief with the burden beyond a reasonable doubt on the 
prosecution before you have to kind of help them out. This is a 
mitigating factor, which you ought to be able to wait until the 
end of the case after the conviction--after the conviction. 
Then you come up with the sentencing as a mitigating factor for 
the death penalty. There's really no reason to require the 
defendant to put this in prior to the guilty verdict.
    And so, I think it is slightly different from some of the 
others because you actually get to argue about whether they're 
insane or not. You don't--and it's part of the case-in-chief, 
which I think is different than what we're talking about here.
    Mr. Coble. Well, folks, we thank you all for your testimony 
today, and the Subcommittee appreciates your contribution.
    In order to ensure a full record and adequate consideration 
of this important issue--and it is, indeed, an important 
issue--the record will remain open for 7 days for additional 
submissions. Also, any written questions that a Member of the 
Subcommittee wants to submit should be submitted to you all 
within that 7-day timeframe.
    This concludes the legislative hearing on H.R. 5040, the 
``Death Penalty Reform Act of 2006.'' Thank you all for your 
cooperation, and the Subcommittee stands adjourned.
    [Whereupon, at 1:12 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman. And I want to thank you for holding this 
hearing on H.R. 5040, ``The Death Penalty Reform Act of 2006.'' I am 
disappointed, however, that we are considering yet another bill this 
Congress that expands opportunities to seek the federal death penalty. 
We recently expanded federal death penalty applications in the USA 
PATRIOT Act renewal, in the ``Gangbusters'' bill, the Court Security 
bill, the sex offender bill, and others. And here we go again, in a 
bill touted as a death penalty procedures bill, expanding further 
instances in which the death penalty can be sought.
    There is still no credible evidence that the death penalty, 
particularly the federal death penalty, deters murder or other crimes, 
or otherwise promotes the general interest of the U.S. Indeed, every 
time we expand the situations in which the federal death penalty can be 
applied, we restrict further our ability to extradite from other 
countries to this country terrorists and other killers of Americans.
    Moreover, there is clear evidence that the federal death penalty is 
disproportionately applied to African Americans and other minorities. 
And despite former Attorney General Reno's departing decision to have 
the Department of Justice (DOJ) examine the ``disturbing'' prevalence 
of minorities among those selected for death penalty prosecutions and 
sentenced to death, no comprehensive and scientific examination has 
been made.
    And although we passed last Congress the Innocence Protection Act, 
which enacted a set of standards to protect and support innocence in 
death penalty cases, we still have not provided the funding necessary 
to fully implement the law. While the impact of the law on the federal 
death penalty is limited, federal death penalty practice does and 
should serve as a model for the states. Thus, we should not be 
expanding application of any death penalty provisions before we provide 
the funding necessary to fully protect and support innocence.
    This bill is problematic in its proposed procedural reforms as 
well. One cynical evaluation of the bill suggested that it represents 
DOJ's attempt to legislate victory on every point on which it has lost 
in court in recent years. By adding more aggravating factors to the 
long list already in the statute, and removing one of the few existing 
mitigating factors, DOJ further stacks the deck in favor of finding 
something on which to hinge an argument for the death penalty. Adding 
the obstruction of justice aggravating factor in the way it is now 
worded would allow particularly broad application of an easily charged 
factor. We see from the current Moussaoui death penalty case over in 
Alexandria that DOJ is willing to go to great lengths to argue for a 
death penalty where it wishes to. One reason for expanding 
opportunities to pursue the death penalty is simply to ensure the 
impaneling of more death-eligible juries. A death-eligible jury is 
necessarily more focused on, and inclined toward, more severe penalties 
than would a regular jury.
    I am also concerned with the bill's proposal to structure 
procedures for determination of whether a defendant is mentally 
retarded and, therefore, not subject to the death penalty pursuant to 
the Atkins case. First, the bill narrowly structures the definition of 
mental retardation, requiring that all of several factors must be 
shown, or you can be put to death. And rather than have a pre-trial 
determination of whether the defendant is mentally retarded, the bill 
requires that the defendant be first tried by a death-eligible jury and 
when found guilty and otherwise eligible for death, then they could 
determine whether he is mentally retarded. This virtually assures that 
a defendant's mental illness is not a factor until the jury has made up 
its mind that the defendant should die!
    Further, I cannot believe that ,on the basis of fairness to the 
prosecution, we would consider a provision that turns the traditional 
burden of proof on its head. That's what we would do if we require a 
defendant to admit upfront that he committed the crime under duress or 
extreme emotional distress in order to submit this as mitigation during 
sentencing.
    Yet another difficulty with the bill is its proposal to impanel 
less than 12 jurors to re-sentence an offender where the first jury 
deadlocks. There can be no purpose for such a drastic change in time-
honored criminal procedures other than to ensure that it is easier to 
obtain a verdict of death. Proponents of this approach would certainly 
not be promoting it if they thought it would make death a less likely 
verdict. While I can understand DOJ's desire to win in its efforts to 
acquire more death penalties, I don't understand why the Congress 
should want to further stack the deck in favor of the prosecution in 
this manner..
    There are other significant problems with this bill, Mr. Chairman, 
but I will leave discussions of those problems to our witnesses and our 
questioning. Thank you.

   Letter from Kent Scheidegger, Legal Director and General Counsel, 
         Criminal Justice Legal Foundation to the Subcommittee



``Smoke and Mirrors on Race and the Death Penalty,'' submitted by Kent 
Scheidegger, Legal Director and General Counsel, Criminal Justice Legal 
                               Foundation




                                 
