[Congressional Record Volume 147, Number 13 (Wednesday, January 31, 2001)]
[Senate]
[Pages S923-S927]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Levin, Mr. Wellstone, and Mr. 
        Corzine):
  S. 233. A bill to place a moratorium on executions by the Federal 
Government and urge the States to do the same, while a National 
Commission on the Death Penalty reviews the fairness of the imposition 
of the death penalty; to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, one year ago today, Governor George Ryan 
took the bold step of placing a moratorium on executions in Illinois. 
He refused to sign off on a single execution in Illinois. Why? Because 
he saw that the system by which people were sentenced to death in 
Illinois was terribly flawed. In fact, by the time Governor Ryan made 
his decision, Illinois had seen more exonerations of innocent people 
than executions. There had been 13 exonerations and 12 executions. Of 
the 13 people found innocent, some were wrongfully convicted based on 
police or prosecutorial misconduct. Modern DNA testing played a role in 
yet another 5 exonerations. And in some cases, it was students from 
Northwestern University--people very much outside the criminal justice 
system--who played a key role in finding and presenting the evidence to 
secure the release of wrongfully condemned men.
  What did Governor Ryan do in the face of this risk of executing 
innocent people? Governor Ryan recognized the moral stakes that faced 
him and took the courageous step of suspending executions. He said, 
``until I can be sure with moral certainty that no innocent man or 
woman is facing a lethal injection, no one will meet that fate.'' Is 
that too much to ask--that innocent men and women not be put to death? 
I believe the vast majority of Americans would say it is not too much 
to ask. Governor Ryan has been an ardent death penalty supporter, 
having argued vehemently for its use while a member of the Illinois 
legislature. But now, as Governor, he was faced with the awesome 
responsibility of carrying out the final stage of this punishment. 
Following his decision to place a moratorium on executions, he promptly 
appointed a panel of distinguished prosecutors and defense lawyers, as 
well as

[[Page S924]]

civic and political leaders. That panel is charged with thoroughly 
reviewing the flaws in the administration of the death penalty in 
Illinois.
  But these problems--and particularly the risk of executing an 
innocent person--are not unique to Illinois. They exist throughout our 
Nation. That is why today I rise to re-introduce the National Death 
Penalty Moratorium Act. This bill seeks to apply the wisdom of Governor 
Ryan and the people of Illinois to the federal government and all 
states that authorize the use of capital punishment. I am pleased that 
my distinguished colleagues, Senators Levin, Wellstone and Corzine, 
have joined me in cosponsoring this bill.
  Governor Ryan's decision was a watershed event. During the last year, 
his action was a significant factor in unleashing a renewed, national 
debate on the death penalty. For the first time in many years, people 
are beginning to understand that our system is fallible. Mistakes can 
be made. Mistakes have been made. But mistakes should not be made, 
particularly when mistakes can mean the difference between life and 
death. In fact, overall support for the death penalty has dropped to an 
almost 20-year low. According to an NBC News/Wall Street Journal poll, 
63 percent of Americans support a suspension of executions while 
questions of fairness are addressed.
  The time to prevent the execution of the innocent is now. The time to 
restore fairness and justice is now. The time to act is now. The time 
for a moratorium is now.
  Governor Ryan was greatly troubled by the number of innocent people 
sent to death row in Illinois--13 people, and still counting. Since the 
1970s, 93 people have been exonerated nationwide. At the same time, we 
have executed close to 700 people. That means for every seven people 
who have been executed, we have found one person sitting on death row 
who should not have been there. And it's not just Illinois that has 
sent innocent people to death row. Twenty-two of the 38 states that 
authorize capital punishment have had exonerations. In fact, Florida 
actually exceeds Illinois in total number of people exonerated: Florida 
has had 20. Oklahoma has exonerated 7, Texas has exonerated 7 people, 
Georgia has exonerated 6 people, and on and on. Mr. President, while we 
explore ways to reduce and eliminate the risk of executing the 
innocent, not a single person should be executed. The time to act is 
now. The time for a moratorium is now.
  My distinguished colleague from Vermont, the ranking member of the 
Judiciary Committee, Senator Leahy, has championed the need for access 
to modern DNA testing and certain minimum standards of competency for 
defense counsel in capital cases. I have joined him and many of our 
distinguished colleagues, including Senators Gordon Smith, Collins, 
Jeffords, and Levin, to support the Innocence Protection Act. This bill 
would bring greater fairness to the administration of the death 
penalty. I commend Senator Leahy for his leadership on this bill, 
particularly for highlighting the need for access to modern DNA 
testing. During the last year, as a result of his leadership, the 
American people are beginning to understand the value and necessity of 
modern DNA testing in our criminal justice system. But while we work to 
pass these needed reforms, a time-out is needed to ensure the integrity 
and fairness of our criminal justice system. The time for a moratorium 
is now.
  According to a study led by Columbia University Law Professor Jim 
Liebman and released last June, the overall rate of error in America's 
death penalty system is 68 percent. Reviewing over 4,500 appeals 
between 1973 and 1995, the report found that courts detected serious, 
reversible error in nearly 7 of every 10 of the capital sentences that 
were fully reviewed. It is appalling that the system is producing so 
many mistakes. And, of course, the question remains: Are we in fact 
catching all the mistakes?
  The Columbia study is further evidence that Illinois' problems are 
not unique. The overall error rate in Illinois was 66 percent, just 
below the national average, which means that some states are well above 
Illinois. I can't underscore this enough. The serious, prejudicial 
error that results in reversals is a phenomenon nationally, not just in 
Illinois.
  In the words of the study's authors, our system is ``collapsing under 
the weight of its own mistakes.'' Mr. President, if our death penalty 
system was a business enterprise that had an error rate in producing 
widgets of 68 percent, that business would undertake a thorough, top to 
bottom review. Let's conduct a thorough, top to bottom review of our 
nation's death penalty system.
  The Columbia study found that the most common errors are (1) 
egregiously incompetent defense counsel who failed to look for 
important evidence that the defendant was innocent or did not deserve 
to die; and (2) police or prosecutors who discovered that kind of 
evidence but suppressed it, again keeping it from the jury. On retrial 
where results are known, 82 percent of the reversals resulted in 
sentences less than death, while another 7 percent were found to be 
innocent of the crime that sent them to death row. When the system 
sends an innocent person to death row, there is a double loss: the 
innocent person is robbed of freedom and the real killer is still free, 
free to potentially do more harm.
  Senator Leahy's Innocence Protection Act is a first step in the fight 
to ensure that defendants facing capital charges receive competent 
legal representation. We have heard stories of sleeping lawyers, drunk 
lawyers, lawyers who are paid less than a living wage, all of whom are 
lawyers who have represented people subsequently convicted and 
sentenced to death. But, as the Columbia study shows, access to modern 
DNA testing and efforts to ensure competent counsel in capital cases 
are only two of the many menacing problems plaguing the administration 
of the death penalty.
  The second common error, according to the Columbia study, is the role 
of police or prosecutorial misconduct in suppressing evidence that 
could mean the difference between guilt and innocence, or life and 
death. The risk of police or prosecutorial misconduct is increased in 
capital cases. Why? Because capital cases are usually high profile, 
high stakes cases, particularly for the police or prosecutor's 
personal, professional advancement. One problem involves the use of 
jailhouse informant testimony. Police or prosecutors use jailhouse 
informants who claim to have heard the defendant confess to a crime. 
These informants' testimony, however, is inherently unreliable because 
they have a strong incentive to lie: their testimony to convict another 
person can mean reduced charges or a lighter sentence in their own 
case.
  Similarly, prosecutors may rely on the testimony of co-defendants who 
also may have strong incentives to lie to avoid tougher charges or 
harsher sentences. Yet another area of police misconduct involves false 
confessions. Take the case of Gary Gauger. Gauger was wrongfully 
convicted of murdering his parents on the basis of a false confession 
obtained by police. In 1993, he was convicted and sent to Illinois' 
death row. The main piece of evidence against him was a so-called 
``confession'' that the police claimed they obtained after holding 
Gauger for 21 hours without food or access to an attorney. The police 
wrote out a version of the murder and tried to convince Gauger that he 
had killed his parents while in a blackout state. He refused to sign 
the ``confession.'' But the prosecution introduced the unsigned 
confession against him at trial. His defense attorney did virtually no 
work preparing for trial, telling Gauger's sister that ``death penalty 
cases are won on appeal.'' Fortunately for Gauger, Northwestern 
University Law Professor Larry Marshall took over his case and Gauger's 
conviction was reversed. In the meantime, the real killers were 
discovered when FBI agents, listening to wiretapped conversations 
during an FBI investigation of a motorcycle gang, heard the killers 
describe murdering Gauger's parents.
  Gauger finally got his freedom, but only after being unfairly and 
unjustly dragged through our criminal justice system. Our law 
enforcement officers do a great job, but we must act to understand the 
role of misconduct by police and prosecutors and its contribution to 
creating a high rate of error in capital cases. The time to act is now. 
The time for a moratorium is now.
  Another problem with our nation's administration of the death penalty 
is

[[Page S925]]

the glaring racial disparity in decisions about who shall be executed. 
One of the most disturbing statistics suggests that white victims are 
valued more highly by the system than non-whites. Since reinstatement 
of the modern death penalty, 83 percent of capital cases involve white 
victims, even though murder victims are African American or white in 
roughly equal numbers. Nationwide, more than half the death row inmates 
are African Americans or Hispanic Americans.
  Racial disparities are particularly pronounced at the federal level. 
According to a report released by the Justice Department in September 
2000, whether a defendant lives or dies in the federal system appears 
to relate to the color of the defendant's skin or the federal district 
in which the prosecution takes place. The report also found that 80 
percent of the cases submitted for death penalty prosecution 
authorization involved minority defendants. Furthermore, according to 
the Department of Justice, white defendants are more likely than black 
defendants to negotiate plea bargains saving them from the death 
penalty in Federal cases. In fact, currently, 16 of the 20, or 80 
percent, of federal death row inmates are racial or ethnic minorities.
  The federal death penalty system also shows a troubling geographic 
disparity. The Department of Justice report shows that United States 
Attorneys in only 5 of 94 Federal districts--1 each in Virginia, 
Maryland, Puerto Rico, and 2 in New York--submit 40 percent of all 
cases in which the death penalty is considered. In fact, U.S. attorneys 
who have frequently recommended seeking the death penalty are often 
from States with a high number of executions under State law, including 
Texas, Virginia, and Missouri.
  The National Institute of Justice is already setting into motion a 
comprehensive study of these racial and geographic disparities. Federal 
executions should not proceed until these disparities are fully studied 
and discussed, and until the federal death penalty process is subjected 
to necessary remedial action.
  In addition to racial and geographic disparities in the 
administration of the federal death penalty, other serious questions 
exist about the fairness and reliability of federal death penalty 
prosecutions. Federal prosecutors rely heavily on bargained-for 
testimony from accomplices of the capital defendant, which is often 
obtained in exchange for not seeking the death penalty against the 
accomplices. This practice creates a serious risk of false testimony.
  Federal prosecutors are not required to provide discovery 
sufficiently ahead of trial to permit the defense to be prepared to use 
this information effectively in defending their clients. The FBI, in 
increasing isolation from the rest of the nation's law enforcement 
agencies, refuses to make electronic recordings of interrogations that 
produce confessions, thus making subsequent scrutiny of the legality 
and reliability of such interrogations more difficult. Federal 
prosecutors rely heavily on predictions of ``future dangerousness''--
predictions deemed unreliable and misleading by the American 
Psychiatric Association and the American Psychological Association--to 
secure death sentences.
  I was pleased when, in December 2000, President Clinton stayed Juan 
Raul Garza's execution and ordered the Justice Department to conduct 
further reviews of the racial and regional disparities in the federal 
death penalty system. Before the federal government takes this step, 
resuming executions for the first time in almost 40 years, we should be 
sure that our system of administering the ultimate punishment is fair 
and just.
  I urge my colleagues to join me in cosponsoring the National Death 
Penalty Moratorium Act. This bill would place a moratorium on federal 
executions and urge the States to do the same. The bill would also 
create a National Commission on the Death Penalty to review the 
fairness of the administration of the death penalty at the state and 
federal levels. This Commission would be an independent, blue ribbon 
panel of distinguished prosecutors, defense attorneys, jurists and 
others.
  The need for a moratorium could not be more critical than it is 
today. The time to act is now. The time for a moratorium is now.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 233

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Death Penalty 
     Moratorium Act of 2001''.

                TITLE I--MORATORIUM ON THE DEATH PENALTY

     SEC. 101. FINDINGS.

       Congress makes the following findings:
       (1) General findings.--
       (A) The administration of the death penalty by the Federal 
     government and the States should be consistent with our 
     Nation's fundamental principles of fairness, justice, 
     equality, and due process.
       (B) At a time when Federal executions are scheduled to 
     recommence, Congress should consider that more than ever 
     Americans are questioning the use of the death penalty and 
     calling for assurances that it be fairly applied. Support for 
     the death penalty has dropped to the lowest level in 19 
     years. An NBC News/Wall Street Journal Poll revealed that 63 
     percent of Americans support a suspension of executions until 
     questions of fairness can be addressed.
       (C) Documented unfairness in the Federal system requires 
     Congress to act and suspend Federal executions. Additionally, 
     substantial evidence of unfairness throughout death penalty 
     States justifies further investigation by Congress.
       (2) Administration of the death penalty by the federal 
     government.--
       (A) The fairness of the administration of the Federal death 
     penalty has recently come under serious scrutiny, 
     specifically raising questions of racial and geographic 
     disparities:
       (i) Eighty percent of Federal death row inmates are members 
     of minority groups.
       (ii) A report released by the Department of Justice on 
     September 12, 2000, found that 80 percent of defendants who 
     were charged with death-eligible offenses under Federal law 
     and whose cases were submitted by the United States attorneys 
     under the Department's death penalty decision-making 
     procedures were African American, Hispanic American, or 
     members of other minority groups.
       (iii) The Department of Justice report shows that United 
     States attorneys in only 5 of 94 Federal districts--1 each in 
     Virginia, Maryland, Puerto Rico, and 2 in New York--submit 40 
     percent of all cases in which the death penalty is 
     considered.
       (iv) The Department of Justice report shows that United 
     States attorneys who have frequently recommended seeking the 
     death penalty are often from States with a high number of 
     executions under State law, including Texas, Virginia, and 
     Missouri.
       (v) The Department of Justice report shows that white 
     defendants are more likely than black defendants to negotiate 
     plea bargains saving them from the death penalty in Federal 
     cases.
       (vi) A study conducted by the House Judiciary Subcommittee 
     on Civil and Constitutional Rights in 1994 concluded that 89 
     percent of defendants selected for capital prosecution under 
     the Anti-Drug Abuse Act of 1988 were either African American 
     or Hispanic American.
       (vii) The National Institute of Justice has already set 
     into motion a comprehensive study of these racial and 
     geographic disparities.
       (viii) Federal executions should not proceed until these 
     disparities are fully studied, discussed, and the federal 
     death penalty process is subjected to necessary remedial 
     action.
       (B) In addition to racial and geographic disparities in the 
     administration of the federal death penalty, other serious 
     questions exist about the fairness and reliability of federal 
     death penalty prosecutions:
       (i) Federal prosecutors rely heavily on bargained-for 
     testimony from accomplices of the capital defendant, which is 
     often obtained in exchange for not seeking the death penalty 
     against the accomplices. This practice creates a serious risk 
     of false testimony.
       (ii) Federal prosecutors are not required to provide 
     discovery sufficiently ahead of trial to permit the defense 
     to be prepared to use this information effectively in 
     defending their clients.
       (iii) The Federal Bureau of Investigation (FBI), in 
     increasing isolation from the rest of the nation's law 
     enforcement agencies, refuses to make electronic recordings 
     of interrogations that produce confessions, thus making 
     subsequent scrutiny of the legality and reliability of such 
     interrogations more difficult.
       (iv) Federal prosecutors rely heavily on predictions of 
     ``future dangerousness''--predictions deemed unreliable and 
     misleading by the American Psychiatric Association and the 
     American Psychological Association--to secure death 
     sentences.
       (3) Administration of the death penalty by the states.--
       (A) The punishment of death carries an especially heavy 
     burden to be free from arbitrariness and discrimination. The 
     Supreme Court has held that ``super due process'', a higher 
     standard than that applied in regular

[[Page S926]]

     criminal trials, is necessary to meet constitutional 
     requirements. There is significant evidence that States are 
     not providing this heightened level of due process. For 
     example:
       (i) In the most comprehensive review of modern death 
     sentencing, Professor James Liebman and researchers at 
     Columbia University found that, during the period 1973 to 
     1995, 68 percent of all death penalty cases reviewed were 
     overturned due to serious constitutional errors. In the wake 
     of the Liebman study, 6 States (Arizona, Maryland, North 
     Carolina, Illinois, Indiana, and Nebraska), as well as the 
     Chicago Tribune and the Texas Defender Service are conducting 
     additional studies. These studies may expose additional 
     problems. With few exceptions, the rate of error was 
     consistent across all death penalty States.
       (ii) Forty percent of the cases overturned were reversed in 
     Federal court after having been upheld by the States.
       (B) The high rate of error throughout all death penalty 
     jurisdictions suggests that there is a grave risk that 
     innocent persons may have been, or will likely be, wrongfully 
     executed. Although the Supreme Court has never conclusively 
     addressed the issue of whether executing an innocent person 
     would in and of itself violate the Constitution, in Herrara 
     v. Collins, 506 U.S. 390 (1993), a majority of the court 
     expressed the view that a persuasive demonstration of actual 
     innocence would violate substantive due process rendering 
     imposition of a death sentence unconstitutional. In any 
     event, the wrongful conviction and sentencing of a person to 
     death is a serious concern for many Americans. For example:
       (i) After 13 innocent people were released from Illinois 
     death row in the same period that the State had executed 12 
     people, on January 31, 2000, Governor George Ryan of Illinois 
     imposed a moratorium on executions until he could be ``sure 
     with moral certainty that no innocent man or woman is facing 
     a lethal injection, no one will meet that fate''.
       (ii) Since 1973, 93 persons have been freed and exonerated 
     from death rows across the country, most after serving 
     lengthy sentences.
       (C) Wrongful convictions create a serious public safety 
     problem because the true killer is still at large, while the 
     innocent person languishes in prison.
       (D) There are many systemic problems that result in 
     innocent people being convicted such as mistaken 
     identification, reliance on jailhouse informants, reliance on 
     faulty forensic testing and no access to reliable DNA 
     testing. For example:
       (i) A study of cases of innocent people who were later 
     exonerated, conducted by attorneys Barry Scheck and Peter 
     Neufeld with ``The Innocence Project'' at Cardozo Law School, 
     showed that mistaken identifications of eyewitnesses or 
     victims contributed to 84 percent of the wrongful 
     convictions.
       (ii) Many persons on death row were convicted prior to 1994 
     and did not receive the benefit of modern DNA testing. At 
     least 10 individuals sentenced to death have been exonerated 
     through post-conviction DNA testing, some within days of 
     execution. Yet in spite of the current widespread prevalence 
     and availability of DNA testing, many States have procedural 
     barriers blocking introduction of post-conviction DNA 
     testing. More than 30 States have laws that require a motion 
     for a new trial based on newly discovered evidence to be 
     filed within 6 months or less.
       (iii) The widespread use of jailhouse snitches who earn 
     reduced charges or sentences by fabricating ``admissions'' by 
     fellow inmates to unsolved crimes can lead to wrongful 
     convictions.
       (iv) The misuse of forensic evidence can lead to wrongful 
     convictions. A recently released report from the Texas 
     Defender Service entitled ``A State of Denial: Texas and the 
     Death Penalty'' found 160 cases of official forensic 
     misconduct including 121 cases where expert psychiatrists 
     testified ``with absolute certainty that the defendant would 
     be a danger in the future'', often without even interviewing 
     the defendant.
       (E) The sixth amendment to the Constitution guarantees all 
     accused persons access to competent counsel. The Supreme 
     Court set out standards for determining competency in the 
     case of Strickland v. Washington, 466 U.S. 668 (1984). 
     Unfortunately, there is unequal access to competent counsel 
     throughout death penalty States. For example:
       (i) Ninety percent of capital defendants cannot afford to 
     hire their own attorney.
       (ii) Fewer than one-quarter of the 38 death penalty States 
     have set any standards for competency of counsel and in those 
     few States, these standards were set only recently. In most 
     States, any person who passes a bar examination, even if that 
     attorney has never represented a client in any type of case, 
     may represent a client in a death penalty case.
       (iii) Thirty-seven percent of capital cases were reversed 
     because of ineffective assistance of counsel, according to 
     the Columbia study.
       (iv) The recent Texas report noted problems with Texas 
     defense attorneys who slept through capital trials, ignored 
     obvious exculpatory evidence, suffered discipline for ethical 
     lapses or for being under the influence of drugs or alcohol 
     while representing an indigent capital defendant at trial.
       (v) Poor lawyering was also cited by Governor Ryan in 
     Illinois as a basis for a moratorium. More than half of all 
     capital defendants there were represented by lawyers who were 
     later disciplined or disbarred for unethical conduct.
       (F) The Supreme Court has held that it is a violation of 
     the eighth amendment to impose the death penalty in a manner 
     that is arbitrary, capricious, or discriminatory. McKlesky v. 
     Kemp, 481 U.S. 279 (1987). Studies consistently indicate 
     racial disparity in the application of the death penalty both 
     for the defendants and the victims. The death penalty is 
     disparately applied in various regions throughout the 
     country, suggesting arbitrary administration of the death 
     penalty based on where the prosecution takes place. For 
     example:
       (i) Of the 85 executions in the year 2000, 51 percent of 
     the defendants were white, 40 percent were black, 7 percent 
     were Latino and 2 percent Native American. Of the victims in 
     the underlying murder, 76 percent were white, 18 percent were 
     black, 2 percent were Latino, and 3 percent were ``other''. 
     These figures show a continuing trend since reinstatement of 
     the modern death penalty of a predominance of white victims' 
     cases. Despite the fact that nationally whites and blacks are 
     victims of murder in approximately equal numbers, 83 percent 
     of the victims involved in capital cases overall since 
     reinstatement, and 76 percent of the victims in 2000, have 
     been white. Since this disparity is confirmed in studies that 
     control for similar crimes by defendants with similar 
     backgrounds, it implies that white victims are considered 
     more valuable in the criminal justice system.
       (ii) Executions are conducted predominately in southern 
     States. Ninety percent of all executions in 2000 were 
     conducted in the south. Only 3 States outside the south, 
     Arizona, California, and Missouri, conducted an execution in 
     2000. Texas accounted for almost as many executions as all 
     the remaining States combined.

     SEC. 102. FEDERAL AND STATE DEATH PENALTY MORATORIUM.

       (a) In General.--The Federal Government shall not carry out 
     any sentence of death imposed under Federal law until the 
     Congress considers the final findings and recommendations of 
     the National Commission on the Death Penalty in the report 
     submitted under section 202(c)(2) and the Congress enacts 
     legislation repealing this section and implements or rejects 
     the guidelines and procedures recommended by the Commission.
       (b) Sense of Congress.--It is the sense of Congress that 
     each State that authorizes the use of the death penalty 
     should enact a moratorium on executions to allow time to 
     review whether the administration of the death penalty by 
     that State is consistent with constitutional requirements of 
     fairness, justice, equality, and due process.

           TITLE II--NATIONAL COMMISSION ON THE DEATH PENALTY

     SEC. 201. ESTABLISHMENT OF COMMISSION.

       (a) Establishment.--There is established a commission to be 
     known as the National Commission on the Death Penalty (in 
     this title referred to as the ``Commission'').
       (b) Membership.--
       (1) Appointment.--Members of the Commission shall be 
     appointed by the President in consultation with the Attorney 
     General and the Chairmen and Ranking Members of the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate.
       (2) Composition.--The Commission shall be composed of 15 
     members, of whom--
       (A) 3 members shall be Federal or State prosecutors;
       (B) 3 members shall be attorneys experienced in capital 
     defense;
       (C) 2 members shall be current or former Federal or State 
     judges;
       (D) 2 members shall be current or former Federal or State 
     law enforcement officials; and
       (E) 5 members shall be individuals from the public or 
     private sector who have knowledge or expertise, whether by 
     experience or training, in matters to be studied by the 
     Commission, which may include--
       (i) officers or employees of the Federal Government or 
     State or local governments;
       (ii) members of academia, nonprofit organizations, the 
     religious community, or industry; and
       (iii) other interested individuals.
       (3) Balanced viewpoints.--In appointing the members of the 
     Commission, the President shall, to the maximum extent 
     practicable, ensure that the membership of the Commission is 
     fairly balanced with respect to the opinions of the members 
     of the Commission regarding support for or opposition to the 
     use of the death penalty.
       (4) Date.--The appointments of the initial members of the 
     Commission shall be made not later than 30 days after the 
     date of enactment of this Act.
       (c) Period of Appointment.--Each member shall be appointed 
     for the life of the Commission.
       (d) Vacancies.--A vacancy in the Commission shall not 
     affect the powers of the Commission, but shall be filled in 
     the same manner as the original appointment.
       (e) Initial Meeting.--Not later than 30 days after all 
     initial members of the Commission have been appointed, the 
     Commission shall hold the first meeting.
       (f) Meetings.--The Commission shall meet at the call of the 
     Chairperson.
       (g) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum for conducting business, but a 
     lesser number of members may hold hearings.
       (h) Chair.--The President shall designate 1 member 
     appointed under subsection (a) to serve as the Chair of the 
     Commission.

[[Page S927]]

       (i) Rules and Procedures.--The Commission shall adopt rules 
     and procedures to govern the proceedings of the Commission.

     SEC. 202. DUTIES OF THE COMMISSION.

       (a) Study.--
       (1) In general.--The Commission shall conduct a thorough 
     study of all matters relating to the administration of the 
     death penalty to determine whether the administration of the 
     death penalty comports with constitutional principles and 
     requirements of fairness, justice, equality, and due process.
       (2) Matters studied.--The matters studied by the Commission 
     shall include the following:
       (A) Racial disparities in capital charging, prosecuting, 
     and sentencing decisions.
       (B) Disproportionality in capital charging, prosecuting, 
     and sentencing decisions based on geographic location and 
     income status of defendants or any other factor resulting in 
     such disproportionality.
       (C) Adequacy of representation of capital defendants, 
     including consideration of the American Bar Association 
     ``Guidelines for the Appointment and Performance of Counsel 
     in Death Penalty Cases'' (adopted February 1989) and American 
     Bar Association policies that are intended to encourage 
     competency of counsel in capital cases (adopted February 
     1979, February 1988, February 1990, and August 1996).
       (D) Whether innocent persons have been sentenced to death 
     and the reasons these wrongful convictions have occurred.
       (E) Whether the Federal government should seek the death 
     penalty in a State with no death penalty.
       (F) Whether courts are adequately exercising independent 
     judgment on the merits of constitutional claims in State 
     post-conviction and Federal habeas corpus proceedings.
       (G) Whether mentally retarded persons and persons who were 
     under the age of 18 at the time of their offenses should be 
     sentenced to death after conviction of death-eligible 
     offenses.
       (H) Procedures to ensure that persons sentenced to death 
     have access to forensic evidence and modern testing of 
     forensic evidence, including DNA testing, when modern testing 
     could result in new evidence of innocence.
       (I) Any other law or procedure to ensure that death penalty 
     cases are administered fairly and impartially, in accordance 
     with the Constitution.
       (b) Guidelines and Procedures.--
       (1) In general.--Based on the study conducted under 
     subsection (a), the Commission shall establish guidelines and 
     procedures for the administration of the death penalty 
     consistent with paragraph (2).
       (2) Intent of guidelines and procedures.--The guidelines 
     and procedures required by this subsection shall--
       (A) ensure that the death penalty cases are administered 
     fairly and impartially, in accordance with due process;
       (B) minimize the risk that innocent persons may be 
     executed; and
       (C) ensure that the death penalty is not administered in a 
     racially discriminatory manner.
       (c) Report.--
       (1) Preliminary report.--Not later than 1 year after the 
     date of enactment of this Act, the Commission shall submit to 
     the President, the Attorney General, and the Congress a 
     preliminary report, which shall contain a preliminary 
     statement of findings and conclusions.
       (2) Final report.--Not later than 2 years after the date of 
     enactment of this Act, the Commission shall submit a report 
     to the President, the Attorney General, and the Congress 
     which shall contain a detailed statement of the findings and 
     conclusions of the Commission, together with the 
     recommendations of the Commission for legislation and 
     administrative actions that implement the guidelines and 
     procedures that the Commission considers appropriate.

     SEC. 203. POWERS OF THE COMMISSION.

       (a) Information From Federal and State Agencies.--
       (1) In general.--The Commission may secure directly from 
     any Federal or State department or agency information that 
     the Commission considers necessary to carry out the 
     provisions of this title.
       (2) Furnishing of information.--Upon a request of the 
     Chairperson of the Commission, the head of any Federal or 
     State department or agency shall furnish the information 
     requested by the Chairperson to the Commission.
       (b) Postal Services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (c) Gifts.--The Commission may accept, use, and dispose of 
     gifts or donations of services or property.
       (d) Hearings.--The Commission or, at the direction of the 
     Commission, any subcommittee or member of the Commission, 
     may, for the purpose of carrying out the provisions of this 
     title--
       (1) hold hearings, sit and act at times and places, take 
     testimony, receive evidence, and administer oaths that the 
     Commission, subcommittee, or member considers advisable; and
       (2) require, by subpoena or otherwise, the attendance and 
     testimony of witnesses and the production of books, records, 
     correspondence, memoranda, papers, documents, tapes, and 
     materials that the Commission, subcommittee, or member 
     considers advisable.
       (e) Issuance and Enforcement of Subpoenas.--
       (1) Issuance.--Subpoenas issued pursuant to subsection 
     (d)--
       (A) shall bear the signature of the Chairperson of the 
     Commission; and
       (B) shall be served by any person or class of persons 
     designated by the Chairperson for that purpose.
       (2) Enforcement.--
       (A) In general.--In the case of contumacy or failure to 
     obey a subpoena issued under subsection (d), the district 
     court of the United States for the judicial district in which 
     the subpoenaed person resides, is served, or may be found, 
     may issue an order requiring that person to appear at any 
     designated place to testify or to produce documentary or 
     other evidence.
       (B) Contempt.--Any failure to obey a court order issued 
     under subparagraph (A) may be punished by the court as a 
     contempt.
       (3) Testimony of persons in custody.--A court of the United 
     States within the jurisdiction in which testimony of a person 
     held in custody is sought by the Commission or within the 
     jurisdiction of which such person is held in custody, may, 
     upon application by the Attorney General, issue a writ of 
     habeas corpus ad testificandum requiring the custodian to 
     produce such person before the Commission, or before a member 
     of the Commission or a member of the staff of the Commission 
     designated by the Commission for such purpose.
       (f) Witness Allowances and Fees.--
       (1) In general.--The provisions of section 1821 of title 
     28, United States Code, shall apply to witnesses requested or 
     subpoenaed to appear at any hearing of the Commission.
       (2) Travel expenses.--The per diem and mileage allowances 
     for witnesses shall be paid from funds available to pay the 
     expenses of the Commission.

     SEC. 204. COMMISSION PERSONNEL MATTERS.

       (a) Compensation of Members.--Members of the Commission 
     shall serve without compensation for the services of the 
     member to the Commission.
       (b) Travel Expenses.--The members of the Commission shall 
     be allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (c) Staff.--
       (1) In general.--The Chairperson of the Commission may, 
     without regard to the civil service laws and regulations, 
     appoint and terminate an executive director and such other 
     additional personnel as may be necessary to enable the 
     Commission to perform the duties of the Commission.
       (2) Executive director.--The employment of an executive 
     director shall be subject to confirmation by the Commission.
       (3) Compensation.--The Chairperson of the Commission may 
     fix the compensation of the executive director and other 
     personnel without regard to the provisions of chapter 51 and 
     subchapter III of chapter 53 of title 5, United States Code, 
     relating to classification of positions and General Schedule 
     pay rates, except that the rate of pay for the executive 
     director and other personnel may not exceed the rate payable 
     for level V of the Executive Schedule under section 5316 of 
     title 5.
       (d) Detail of Government Employees.--Any Federal Government 
     employee may be detailed to the Commission without 
     reimbursement, and the detail shall be without interruption 
     or loss of civil service status or privilege.
       (e) Procurement of Temporary and Intermittent Services.--
     The Chairperson of the Commission may procure temporary and 
     intermittent services under section 3109(b) of title 5, 
     United States Code, at rates for individuals which do not 
     exceed the daily equivalent of the annual rate of basic pay 
     prescribed for level V of the Executive Schedule under 
     section 5316 of title 5.

     SEC. 205. TERMINATION OF THE COMMISSION.

       The Commission shall terminate 90 days after the date on 
     which the Commission submits its report under section 202.

     SEC. 206. FUNDING.

       (a) In General.--The Commission may expend an amount not to 
     exceed $850,000, as provided by subsection (b), to carry out 
     this title.
       (b) Availability.--Sums appropriated to the Department of 
     Justice shall be made available to carry out this title.
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