[Congressional Record Volume 164, Number 198 (Monday, December 17, 2018)]
[Senate]
[Pages S7710-S7714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4137. Mr. HATCH submitted an amendment intended to be proposed to
amendment SA 4108 proposed by Mr. McConnell (for Mr. Grassley) to the
bill S. 756, to reauthorize and amend the Marine Debris Act to promote
international action to reduce marine debris, and for other purposes;
which was ordered to lie on the table; as follows:
At the end, add the following:
TITLE VII--MENS REA REFORM
SEC. 701. SHORT TITLE.
This title may be cited as the ``Mens Rea Reform Act of
2018''.
Subtitle A--State of Mind
SEC. 711. STATE OF MIND ELEMENT FOR CRIMINAL OFFENSES.
(a) In General.--Chapter 1 of title 18, United States Code,
is amended by adding at the end the following:
``Sec. 28. State of mind when not otherwise specifically
provided
``(a) Definitions.--In this section--
``(1) the term `covered offense'--
``(A) means an offense--
``(i) specified in--
``(I) this title or any other Act of Congress;
``(II) any regulation; or
``(III) any law (including regulations) of any State or
foreign government incorporated by reference into this title
or any other Act of Congress; and
``(ii) that is punishable by imprisonment, a maximum
criminal fine of at least $2,500, or both; and
``(B) does not include--
``(i) any offense set forth in chapter 47 or chapter 47A of
title 10; or
``(ii) any offense incorporated by section 13(a) of this
title;
``(2) the term `existing covered offense without a state of
mind requirement' means a covered offense for which--
``(A) the provision or provisions specifying the elements
of the offense were enacted, promulgated, or finalized on or
before the date of enactment of this section; and
``(B) there is not a state of mind requirement specified
for 1 or more elements of the covered offense, which shall be
determined in accordance with subsection (d)--
``(i) in the text of the covered offense; or
``(ii) under the precedents of the Supreme Court of the
United States;
``(3) the term `existing covered regulatory offense without
a state of mind requirement' means an existing covered
offense without a state of mind requirement for which the
provision or provisions specifying the elements of the
offense are in regulations promulgated by an agency;
``(4) the term `future covered offense' means a covered
offense for which the provision or provisions specifying the
elements of the offense are enacted, promulgated, or
finalized after the date of enactment of this section;
``(5) the term `state of mind' means willfully,
intentionally, maliciously, knowingly, recklessly, wantonly,
negligently, or with reason to believe, or any other word or
phrase that is synonymous with or substantially similar to
any such term; and
``(6) the term `willfully', as related to an element of an
offense, means--
``(A) that the person acted with knowledge that the
person's conduct was unlawful; and
``(B) if the element involves the nature, attendant
circumstances, object, or result of the conduct of a person,
that--
``(i) the person had knowledge of the nature, attendant
circumstances, object, or result of his or her conduct; and
``(ii) it was the conscious object of the person to engage
in conduct--
``(I) of that nature;
``(II) with that attendant circumstance;
``(III) with that object; or
``(IV) to cause such a result.
``(b) Future Covered Offenses.--A future covered offense
shall be construed to require the Government to prove beyond
a reasonable doubt that the defendant acted--
``(1) with the state of mind specified in the text of the
future covered offense for each element of the offense for
which the text specifies a state of mind; and
``(2) except as provided in subsection (d), willfully, with
respect to any element of the offense for which the text of
the future covered offense does not specify a state of mind.
``(c) Existing Covered Offenses Without a State of Mind
Requirement.--
``(1) Default requirement for existing statutory offenses
without a state of mind requirement.--
``(A) In general.--On and after the date specified in
subparagraph (B), an existing covered offense without a state
of mind requirement for which the provision or provisions
specifying the elements of the existing
[[Page S7711]]
covered offense are in an Act of Congress shall be construed
to require the Government to prove beyond a reasonable doubt
that the defendant acted--
``(i) with the state of mind specified in the text of the
existing covered offense without a state of mind requirement,
including any amendment made after the date of enactment of
this section, for each element for which the text specifies a
state of mind; and
``(ii) except as provided in subsection (d), willfully,
with respect to any element for which the text of the
existing covered offense without a state of mind requirement
does not specify a state of mind.
``(B) Deadline.--The date specified in this subparagraph is
the earlier of--
``(i) the date that is 2 years after the date on which the
National Criminal Justice Commission submits the report under
section 711(b) of the Mens Rea Reform Act of 2018; or
``(ii) the date that is 5 years after the date of enactment
of the Mens Rea Reform Act of 2018.
``(2) Existing covered regulatory offenses without a state
of mind requirement.--
``(A) In general.--Not later than the date specified in
subparagraph (B), each agency that has in effect an existing
covered regulatory offense without a state of mind
requirement shall promulgate regulations, after providing
notice and an opportunity for comment, specifying the state
of mind required for each element of the existing covered
regulatory offense for which a state of mind is not
specified.
``(B) Deadline.--The date specified in this subparagraph is
the earlier of--
``(i) the date that is 3 years after the date on which the
National Criminal Justice Commission submits the report under
section 711(b) of the Mens Rea Reform Act of 2018; or
``(ii) the date that is 6 years after the date of enactment
of the Mens Rea Reform Act of 2018.
``(C) No strict liability offenses.--The regulations
promulgated by an agency under subparagraph (A) may not
specify that an element of an existing covered regulatory
offense does not require any state of mind be proven.
``(D) Sunset.--Except as provided in subsection (d), after
the date specified in subparagraph (B), the criminal penalty
provisions of an existing covered regulatory offense for
which the regulations establishing the elements of the
existing covered regulatory offense do not specify a state of
mind for 1 or more elements shall cease to have force or
effect.
``(E) Rule of construction.--Nothing in this paragraph
shall be construed to grant an agency authority with respect
to establishing the mens rea requirements for a covered
regulatory offense that is in addition to, or in lieu of,
such authority provided under the statute authorizing the
covered regulatory offense.
``(d) Determination That Elements Lack Required State of
Mind.--
``(1) Failure to distinguish among elements.--Except as
provided in paragraph (2), if the text of a covered offense
specifies the state of mind required for commission of the
covered offense without specifying the elements of the
covered offense to which the state of mind applies, the state
of mind specified shall apply to all elements of the covered
offense, unless a contrary legislative purpose plainly
appears in the text of the statute.
``(2) Exceptions.--
``(A) In general.--Paragraph (1) of this subsection,
subsection (b)(2), and paragraphs (1)(A)(ii) and (2)(D) of
subsection (c) shall not apply with respect to--
``(i) any element for which the text of the covered offense
makes clear that Congress affirmatively intended not to
require the Government to prove any state of mind with
respect to such element;
``(ii) any element of a covered offense, to the extent that
the element establishes--
``(I) subject matter jurisdiction over the covered offense;
or
``(II) venue with respect to trial of the covered offense;
or
``(iii) any element of a covered offense, to the extent
that applying paragraph (1) of this subsection, subsection
(b)(2), or paragraph (1)(A)(ii) or (2)(D) of subsection (c)
to such element would lessen the degree of mental culpability
that the Government is required to prove with respect to that
element under--
``(I) precedent of the Supreme Court of the United States;
or
``(II) any other provision of this title, any other Act of
Congress, or any regulation.
``(B) Mere absence insufficient.--For purposes of
subparagraph (A)(i), the mere absence of a specified state of
mind for an element of a covered offense in the text of the
covered offense shall not be construed to mean that Congress
affirmatively intended not to require the Government to prove
any state of mind with respect to that element.
``(e) Subsequently Enacted Laws.--No law enacted after the
date of enactment of this section shall be construed to
repeal, modify the text or effect of, or supersede in whole
or in part this section, unless such law specifically refers
to this section and explicitly repeals, modifies the text or
effect of, or supersedes in whole or in part this section.''.
(b) Commission Report and Legislation.--
(1) Definitions.--In this section, the term ``existing
covered offenses without a state of mind requirement'' has
the meaning given that term in section 28 of title 18, United
States Code, as added by subsection (a).
(2) Submission.--Not later than the earlier of 2 years
after the date on which the Attorney General submits the
report required under section 712(b) or 3 years after the
date of enactment of this Act, the National Criminal Justice
Commission shall submit to Congress--
(A) a report identifying--
(i) the existing covered offenses without a state of mind
requirement; and
(ii) the existing covered offenses without a state of mind
requirement for which the Commission recommends that the
Government not be required to prove any state of mind with
respect to 1 or more elements of the offense, based on
consideration of the criteria described in paragraph (3); and
(B) for each existing covered offense without a state of
mind requirement identified under subparagraph (A)(ii) for
which the provision or provisions specifying the elements of
the existing covered offense without a state of mind
requirement are in an Act of Congress, proposed legislative
language to make clear the Government is not required to
prove any state of mind with respect to 1 or more elements of
the offense.
(3) Criteria.--The criteria specified in this paragraph
are--
(A) whether the covered offense makes criminal a type of
conduct that a reasonable person should know is subject to
stringent public regulation and may seriously threaten public
health or safety; and
(B) the potential penalty attached to a violation of the
covered offense, with a severe penalty suggesting that the
offense should not be a strict liability offense.
(c) Expedited Procedures.--
(1) Definition.--In this subsection, the term ``joint
resolution'' means a joint resolution consisting of the
proposed legislative language submitted under subsection
(b)(2)(B) and introduced or reintroduced under paragraph (2)
of this subsection.
(2) Introduction of proposed legislative language.--
(A) In general.--The proposed legislative language
submitted by the National Criminal Justice Commission under
subsection (b)(2)(B)--
(i) shall be introduced in the Senate (by request) by the
Majority Leader or Minority Leader of the Senate or by a
Member of the Senate designated by the Majority Leader or
Minority Leader of the Senate not later than 30 days after
the date on which the proposed legislation is submitted to
Congress; and
(ii) shall be introduced in the House of Representatives
(by request) by the Speaker of the House of Representatives
or the Minority Leader of the House of Representatives or by
a Member of the House of Representatives designated by the
Speaker of the House of Representatives or the Minority
Leader of the House of Representatives not later than 30 days
after the date on which the proposed legislation is submitted
to Congress.
(B) Reintroduction.--The proposed legislative language
submitted by the National Criminal Justice Commission under
subsection (b)(2)(B) shall be reintroduced as described in
subparagraph (A) not later than 30 days after the first day
of a Congress if--
(i) the proposed legislative language was introduced during
the previous Congress after the date that was 210 days before
the date of the sine die adjournment of such previous
Congress; and
(ii) there was not a vote in either House of Congress on
passage of the joint resolution introduced under subparagraph
(A) during the previous Congress by which the joint
resolution was not agreed to.
(3) Expedited consideration in house of representatives.--
(A) Reporting and discharge.--Any committee of the House of
Representatives to which a joint resolution is referred shall
report it to the House of Representatives not later than 180
days after the date on which the joint resolution is
introduced or reintroduced in the House of Representatives
under paragraph (2). If a committee fails to report the joint
resolution within that period, the committee shall be
discharged from further consideration of the joint resolution
and the joint resolution shall be referred to the appropriate
calendar.
(B) Proceeding to consideration.--
(i) In general.--After each committee authorized to
consider a joint resolution reports it to the House of
Representatives or has been discharged from its
consideration, it shall be in order, not later than 210 days
after the date on which the joint resolution is introduced or
reintroduced in the House of Representatives under paragraph
(2), to move to proceed to consider the joint resolution in
the House of Representatives.
(ii) Procedure.--For a motion to proceed to consideration
of a joint resolution--
(I) all points of order against the motion are waived;
(II) such a motion shall not be in order after the House of
Representatives has disposed of a motion to proceed on the
joint resolution;
(III) the previous question shall be considered as ordered
on the motion to its adoption without intervening motion;
(IV) the motion shall not be debatable; and
(V) a motion to reconsider the vote by which the motion is
disposed of shall not be in order.
(C) Consideration.--If the House of Representatives
proceeds to consideration of a joint resolution--
[[Page S7712]]
(i) the joint resolution shall be considered as read;
(ii) all points of order against the joint resolution and
against its consideration are waived;
(iii) the previous question shall be considered as ordered
on the joint resolution to its passage without intervening
motion except 10 hours of debate equally divided and
controlled by the proponent and an opponent;
(iv) an amendment to the joint resolution shall not be in
order; and
(v) a motion to reconsider the vote on passage of the joint
resolution shall not be in order.
(4) Expedited consideration in senate.--
(A) Placement on calendar.--Upon introduction in the
Senate, the joint resolution shall be placed immediately on
the calendar.
(B) Proceeding to consideration.--
(i) In general.--Notwithstanding rule XXII of the Standing
Rules of the Senate, it is in order, not later than 210 days
after the date on which the joint resolution is introduced or
reintroduced in the Senate under paragraph (2) (even though a
previous motion to the same effect has been disagreed to) to
move to proceed to the consideration of a joint resolution.
(ii) Procedure.--For a motion to proceed to the
consideration of a joint resolution--
(I) all points of order against the motion are waived;
(II) the motion is not debatable;
(III) the motion is not subject to a motion to postpone;
(IV) a motion to reconsider the vote by which the motion is
agreed to or disagreed to shall not be in order; and
(V) if the motion is agreed to, the joint resolution shall
remain the unfinished business until disposed of.
(C) Floor consideration.--
(i) In general.--If the Senate proceeds to consideration of
a joint resolution--
(I) all points of order against the joint resolution (and
against consideration of the joint resolution) are waived;
(II) consideration of the joint resolution, and all
debatable motions and appeals in connection therewith, shall
be limited to not more than 10 hours, which shall be divided
equally between the majority and minority leaders or their
designees;
(III) a motion further to limit debate is in order and not
debatable;
(IV) an amendment to, a motion to postpone, or a motion to
commit the joint resolution is not in order; and
(V) a motion to proceed to the consideration of other
business is not in order.
(ii) Vote on passage.--The vote on passage shall occur
immediately following the conclusion of the consideration of
a joint resolution, and a single quorum call at the
conclusion of the debate if requested in accordance with the
rules of the Senate.
(iii) Rulings of the chair on procedure.--Appeals from the
decisions of the Chair relating to the application of this
paragraph or the rules of the Senate, as the case may be, to
the procedure relating to a joint resolution shall be decided
without debate.
(5) Rules relating to senate and house of
representatives.--
(A) Coordination with action by other house.--If, before
the passage by one House of a joint resolution of that House,
that House receives from the other House a joint resolution--
(i) the joint resolution of the other House shall not be
referred to a committee; and
(ii) with respect to a joint resolution of the House
receiving the resolution--
(I) the procedure in that House shall be the same as if no
joint resolution had been received from the other House; and
(II) the vote on passage shall be on the joint resolution
of the other House.
(B) Treatment of joint resolution of other house.--If one
House fails to introduce or consider a joint resolution under
this subsection, the joint resolution of the other House
shall be entitled to expedited floor procedures under this
subsection.
(C) Treatment of companion measures.--If, following passage
of a joint resolution in the Senate, the Senate receives the
companion measure from the House of Representatives, the
companion measure shall not be debatable.
(D) Consideration after passage.--If the President vetoes
the joint resolution, consideration of a veto message in the
Senate under this paragraph shall be not more than 10 hours
equally divided between the majority and minority leaders or
their designees.
(6) Rules of house of representatives and senate.--This
subsection is enacted by Congress--
(A) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and as such is
deemed a part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed
in that House in the case of a joint resolution, and to
supersede other rules only to the extent that it is
inconsistent with such rules; and
(B) with full recognition of the constitutional right of
either House to change the rules (so far as relating to the
procedure of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
(d) Technical and Conforming Amendment.--The table of
sections for chapter 1 of title 18, United States Code, is
amended by adding at the end the following:
``28. State of mind when not otherwise specifically provided.''.
SEC. 712. INVENTORY OF FEDERAL CRIMINAL OFFENSES.
(a) Definitions.--In this section--
(1) the term ``criminal regulatory offense'' means a
Federal regulation that is enforceable by a criminal penalty;
(2) the term ``criminal statutory offense'' means a
criminal offense under a Federal statute; and
(3) the term ``Executive agency''--
(A) has the meaning given the term in section 105 of title
5, United States Code; and
(B) includes the United States Postal Service and the
Postal Regulatory Commission.
(b) Report on Criminal Statutory Offenses.--Not later than
1 year after the date of enactment of this Act, the Attorney
General shall submit to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives and make publicly available a report, which
shall include--
(1) a list of all criminal statutory offenses, including a
list of the elements for each criminal statutory offense; and
(2) for each criminal statutory offense listed under
paragraph (1) and organized by Federal district where
applicable--
(A) the potential criminal penalty for the criminal
statutory offense;
(B) the number of violations of the criminal statutory
offense referred to the Department of Justice by an Executive
agency for prosecution, including referrals from
investigative agencies of the Department of Justice, in each
of the years during the 15-year period preceding the date of
enactment of this Act;
(C) the number of prosecutions for the criminal statutory
offense brought by the Department of Justice each year for
the 15-year period preceding the date of enactment of this
Act;
(D) the number of prosecutions for the criminal statutory
offense brought by the Department of Justice that have
resulted in conviction for each year of the 15-year period
preceding the date of enactment of this Act;
(E) the number of convictions for the criminal statutory
offense that have resulted in imprisonment for each year of
the 15-year period preceding the date of enactment of this
Act;
(F) the average length of sentence of imprisonment imposed
as a result of conviction for the criminal statutory offense
during each year of the 15-year period preceding the date of
enactment of this Act;
(G) the mens rea requirement for the criminal statutory
offense; and
(H) the number of prosecutions for the criminal statutory
offense in which the Department of Justice was not required
to prove mens rea as a component of the offense.
(c) Report on Criminal Regulatory Offenses.--Not later than
1 year after the date of enactment of this Act, the head of
each Executive agency shall submit to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives and make publicly available a
report, which shall include--
(1) a list of all criminal regulatory offenses enforceable
by the agency; and
(2) for each criminal regulatory offense listed under
paragraph (1)--
(A) the potential criminal penalty for a violation of the
criminal regulatory offense;
(B) the number of violations of the criminal regulatory
offense referred to the Department of Justice for prosecution
in each of the years during the 15-year period preceding the
date of enactment of this Act;
(C) the number of prosecutions for the criminal regulatory
offense brought by the Department of Justice each year for
the 15-year period preceding the date of enactment of this
Act;
(D) the number of prosecutions for the criminal regulatory
offense brought by the Department of Justice that have
resulted in conviction for each year of the 15-year period
preceding the date of enactment of this Act;
(E) the number of convictions for the criminal regulatory
offense that have resulted in imprisonment for each year of
the 15-year period preceding the date of enactment of this
Act;
(F) the average length of sentence of imprisonment imposed
as a result of conviction for the criminal regulatory offense
during each year of the 15-year period preceding the date of
enactment of this Act;
(G) the mens rea requirement for the criminal regulatory
offense; and
(H) the number of prosecutions for the criminal regulatory
offense in which the Department of Justice was not required
to prove mens rea as a component of the offense.
(d) Index.--Not later than 2 years after the date of
enactment of this Act--
(1) the Attorney General shall establish a publically
accessible index of each criminal statutory offense listed in
the report required under subsection (b) and make the index
available and freely accessible on the website of the
Department of Justice; and
(2) the head of each Executive agency shall establish a
publically accessible index of each criminal regulatory
offense listed in the report required under subsection (c)
and make the index available and freely accessible on the
website of the agency.
(e) Rule of Construction.--Nothing in this section shall be
construed to require or authorize appropriations.
[[Page S7713]]
Subtitle B--National Criminal Justice Commission Act
SEC. 751. FINDINGS.
Congress finds that--
(1) it is in the interest of the Nation to establish a
commission to undertake a comprehensive review of the
criminal justice system;
(2) there has not been a comprehensive study since the
President's Commission on Law Enforcement and Administration
of Justice was established in 1965;
(3) that commission, in a span of 18 months, produced a
comprehensive report entitled ``The Challenge of Crime in a
Free Society'', which contained 200 specific recommendations
on all aspects of the criminal justice system involving
Federal, State, tribal, and local governments, civic
organizations, religious institutions, business groups, and
individual citizens; and
(4) developments over the intervening 50 years require once
again that Federal, State, tribal, and local governments,
civic organizations, religious institutions, business groups,
and individual citizens come together to review evidence and
consider how to improve the criminal justice system.
SEC. 752. ESTABLISHMENT OF COMMISSION.
There is established a commission to be known as the
``National Criminal Justice Commission'' (referred to in this
subtitle as the ``Commission'').
SEC. 753. PURPOSE OF THE COMMISSION.
The Commission shall--
(1) undertake a comprehensive review of the criminal
justice system;
(2) make recommendations for Federal criminal justice
reform to the President and Congress; and
(3) disseminate findings and supplemental guidance to the
Federal Government, as well as to State, local, and tribal
governments.
SEC. 754. REVIEW, RECOMMENDATIONS, AND REPORT.
(a) General Review.--The Commission shall undertake a
comprehensive review of all areas of the criminal justice
system, including Federal, State, local, and tribal
governments' criminal justice costs, practices, and policies.
(b) Recommendations.--
(1) In general.--Not later than 18 months after the first
meeting of the Commission, the Commission shall submit to the
President and Congress recommendations for changes in Federal
oversight, policies, practices, and laws designed to prevent,
deter, and reduce crime and violence, reduce recidivism,
improve cost-effectiveness, and ensure the interests of
justice at every step of the criminal justice system.
(2) Unanimous consent required.--A recommendation of the
Commission may be adopted and submitted under paragraph (1)
if the recommendation is approved by a unanimous vote of the
Commissioners at a meeting where a quorum is present pursuant
to section 755(d).
(3) Requirement.--The recommendations submitted under this
subsection shall be made available to the public.
(c) Report.--
(1) In general.--Not later than 18 months after the first
meeting of the Commission, the Commission shall also
disseminate to the Federal Government, as well as to State,
local, and tribal governments, a report that details the
findings and supplemental guidance of the Commission
regarding the criminal justice system at all levels of
government.
(2) Majority vote required.--Commission findings and
supplemental guidance may be adopted and included in the
report required under paragraph (1) if the findings or
guidance is approved by a majority vote of the Commissioners
at a meeting where a quorum is present pursuant to section
755(d), except that any Commissioners dissenting from
particular finding or supplemental guidance shall have the
right to state the reason for their dissent in writing and
such dissent shall be included in the report of the
Commission.
(3) Requirement.--The report submitted under this
subsection shall be made available to the public.
(d) Prior Commissions.--The Commission shall take into
consideration the work of prior relevant commissions in
conducting its review.
(e) State and Local Government.--In issuing its
recommendations and report under this section, the Commission
shall not infringe on the legitimate rights of the States to
determine their own criminal laws or the enforcement of such
laws.
(f) Public Hearings.--The Commission shall conduct public
hearings in various locations around the United States.
(g) Consultation With Government and Nongovernment
Representatives.--
(1) In general.--The Commission shall--
(A) closely consult with Federal, State, local, and tribal
government and nongovernmental leaders, including State,
local, and tribal law enforcement officials, legislators,
public health officials, judges, court administrators,
prosecutors, defense counsel, victims' rights organizations,
probation and parole officials, criminal justice planners,
criminologists, civil rights and liberties organizations,
formerly incarcerated individuals, professional
organizations, and corrections officials; and
(B) include in the final report required under subsection
(c) summaries of the input and recommendations of these
leaders.
(2) United states sentencing commission.--To the extent the
review and recommendations required by this section relate to
sentencing policies and practices for the Federal criminal
justice system, the Commission shall conduct such review and
make such recommendations in consultation with the United
States Sentencing Commission.
(h) Sense of Congress, Goal of Unanimity.--It is the sense
of the Congress that, given the national importance of the
matters before the Commission, the Commission should work
toward unanimously supported findings and supplemental
guidance, and that unanimously supported findings and
supplemental guidance should take precedence over those
findings and supplemental guidance that are not unanimously
supported.
SEC. 755. MEMBERSHIP.
(a) In General.--The Commission shall be composed of 14
members, as follows:
(1) One member shall be appointed by the President, who
shall serve as co-chairperson of the Commission.
(2) One member shall be appointed by the leader of the
Senate, in consultation with the leader of the House of
Representatives, that is a member of the opposite party of
the President, who shall serve as co-chairperson of the
Commission.
(3) Two members shall be appointed by the senior member of
the Senate leadership of the Democratic Party, in
consultation with the Democratic leadership of the Committee
on the Judiciary.
(4) Two members shall be appointed by the senior member of
the Senate leadership of the Republican Party, in
consultation with the Republican leadership of the Committee
on the Judiciary.
(5) Two members shall be appointed by the senior member of
the leadership of the House of Representatives of the
Republican Party, in consultation with the Republican
leadership of the Committee on the Judiciary.
(6) Two members shall be appointed by the senior member of
the leadership of the House of Representatives of the
Democratic Party, in consultation with the Democratic
leadership of the Committee on the Judiciary.
(7) Two members, who shall be State and local
representatives, shall be appointed by the President in
agreement with leader of the Senate (majority or minority
leader, as the case may be) of the Republican Party and the
leader of the House of Representatives (majority or minority
leader, as the case may be) of the Republican Party.
(8) Two members, who shall be State and local
representatives, shall be appointed by the President in
agreement with leader of the Senate (majority or minority
leader, as the case may be) of the Democratic Party and the
leader of the House of Representatives (majority or minority
leader, as the case may be) of the Democratic Party.
(b) Membership.--
(1) Qualifications.--The individuals appointed from private
life as members of the Commission shall be individuals with
distinguished reputations for integrity and nonpartisanship
who are nationally recognized for expertise, knowledge, or
experience in such relevant areas as--
(A) law enforcement;
(B) criminal justice;
(C) national security;
(D) prison and jail administration;
(E) prisoner reentry;
(F) public health, including physical and sexual
victimization, drug addiction and mental health;
(G) victims' rights;
(H) civil liberties;
(I) court administration;
(J) social services; and
(K) State, local, and tribal government.
(2) Disqualification.--An individual shall not be appointed
as a member of the Commission if such individual possesses
any personal financial interest in the discharge of any of
the duties of the Commission.
(3) Terms.--Members shall be appointed for the life of the
Commission.
(c) Appointment; First Meeting.--
(1) Appointment.--Members of the Commission shall be
appointed not later than 45 days after the date of the
enactment of this Act.
(2) First meeting.--The Commission shall hold its first
meeting on the date that is 60 days after the date of
enactment of this Act, or not later than 30 days after the
date on which funds are made available for the Commission,
whichever is later.
(3) Ethics.--At the first meeting of the Commission, the
Commission shall draft appropriate ethics guidelines for
commissioners and staff, including guidelines relating to
conflict of interest and financial disclosure. The Commission
shall consult with the Senate and House Committees on the
Judiciary as a part of drafting the guidelines and furnish
the Committees with a copy of the completed guidelines.
(d) Meetings; Quorum; Vacancies.--
(1) Meetings.--The Commission shall meet at the call of the
co-chairpersons or a majority of its members.
(2) Quorum.--Eight members of the Commission shall
constitute a quorum for purposes of conducting business,
except that 2 members of the Commission shall constitute a
quorum for purposes of receiving testimony.
(3) Vacancies.--Any vacancy in the Commission shall not
affect its powers, but shall be filled in the same manner in
which the original appointment was made. If vacancies in the
Commission occur on any day after 45 days after the date of
the enactment of this
[[Page S7714]]
Act, a quorum shall consist of a majority of the members of
the Commission as of such day, so long as not less than 1
Commission member chosen by a member of each party,
Republican and Democratic, is present.
(e) Actions of Commission.--
(1) In general.--The Commission--
(A) shall, subject to the requirements of section 754, act
by resolution agreed to by a majority of the members of the
Commission voting and present; and
(B) may establish panels composed of less than the full
membership of the Commission for purposes of carrying out the
duties of the Commission under this subtitle--
(i) which shall be subject to the review and control of the
Commission; and
(ii) any findings and determinations made by such a panel
shall not be considered the findings and determinations of
the Commission unless approved by the Commission.
(2) Delegation.--Any member, agent, or staff of the
Commission may, if authorized by the co-chairpersons of the
Commission, take any action which the Commission is
authorized to take pursuant to this Act.
SEC. 756. ADMINISTRATION.
(a) Staff.--
(1) Executive director.--The Commission shall have a staff
headed by an Executive Director. The Executive Director shall
be paid at a rate established for the Certified Plan pay
level for the Senior Executive Service under section 5382 of
title 5, United States Code.
(2) Appointment and compensation.--The co-chairpersons of
the Commission shall designate the Executive Director and, in
accordance with rules agreed upon by the Commission, may
appoint and fix the compensation of such other personnel as
may be necessary to enable the Commission to carry out its
functions, without regard to the provisions of title 5,
United States Code, governing appointments in the competitive
service, and without regard to the provisions of chapter 51
and subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates, except that no
rate of pay fixed under this paragraph may exceed the
equivalent of that payable for a position at level V of the
Executive Schedule under section 5316 of title 5, United
States Code.
(3) Personnel as federal employees.--
(A) In general.--The executive director and any personnel
of the Commission who are employees shall be employees under
section 2105 of title 5, United States Code, for purposes of
chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.
(B) Members of commission.--Subparagraph (A) shall not be
construed to apply to members of the Commission.
(4) The compensation of commissioners.--Each member of the
Commission may be compensated at not to exceed the daily
equivalent of the annual rate of basic pay in effect for a
position at level V of the Executive Schedule under section
5315 of title 5, United States Code, for each day during
which that member is engaged in the actual performance of the
duties of the Commission. All members of the Commission who
are officers or employees of the United States, a State, or a
local government shall serve without compensation in addition
to that received for their services as officers or employees.
(5) Travel expenses.--While away from their homes or
regular places of business in the performance of services for
the Commission, members of the Commission shall be allowed
travel expenses, including per diem in lieu of subsistence,
in the same manner as persons employed intermittently in the
Government service are allowed expenses under section 5703(b)
of title 5, United States Code.
(b) Experts and Consultants.--With the approval of the
Commission, the Executive Director may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code.
(c) Detail of Government Employees.--Upon the request of
the Commission, the head of any Federal agency may detail,
without reimbursement, any of the personnel of such agency to
the Commission to assist in carrying out the duties of the
Commission. Any such detail shall not interrupt or otherwise
affect the civil service status or privileges of the Federal
employee.
(d) Other Resources.--The Commission shall have reasonable
access to materials, resources, statistical data, and other
information such Commission determines to be necessary to
carry out its duties from the Library of Congress, the
Department of Justice, the Office of National Drug Control
Policy, the Department of State, and other agencies of the
executive and legislative branches of the Federal Government.
The co-chairpersons of the Commission shall make requests for
such access in writing when necessary.
(e) Volunteer Services.--Notwithstanding the provisions of
section 1342 of title 31, United States Code, the Commission
is authorized to accept and utilize the services of
volunteers serving without compensation. The Commission may
reimburse such volunteers for local travel and office
supplies, and for other travel expenses, including per diem
in lieu of subsistence, as authorized by section 5703 of
title 5, United States Code. A person providing volunteer
services to the Commission shall be considered an employee of
the Federal Government in performance of those services for
the purposes of chapter 81 of title 5, United States Code,
relating to compensation for work-related injuries, chapter
171 of title 28, United States Code, relating to tort claims,
and chapter 11 of title 18, United States Code, relating to
conflicts of interest.
(f) Obtaining Official Data.--The Commission may secure
directly from any agency of the United States information
necessary to enable it to carry out this Act. Upon the
request of the co-chairpersons of the Commission, the head of
that department or agency shall furnish that information to
the Commission. The Commission shall not have access to
sensitive information regarding ongoing investigations.
(g) Mails.--The Commission may use the United States mails
in the same manner and under the same conditions as other
departments and agencies of the United States.
(h) Administrative Reporting.--The Commission shall issue
biannual status reports to Congress regarding the use of
resources, salaries, and all expenditures of appropriated
funds.
(i) Contracts.--The Commission is authorized to enter into
contracts with Federal and State agencies, private firms,
institutions, and individuals for the conduct of activities
necessary to the discharge of its duties and
responsibilities. A contract, lease, or other legal agreement
entered into by the Commission may not extend beyond the date
of the termination of the Commission.
(j) Gifts.--Subject to existing law, the Commission may
accept, use, and dispose of gifts or donations of services or
property.
(k) Administrative Assistance.--The Administrator of
General Services shall provide to the Commission, on a
reimbursable basis, the administrative support services
necessary for the Commission to carry out its
responsibilities under this Act. These administrative
services may include human resource management, budget,
leasing, accounting, and payroll services.
(l) Nonapplicability of FACA and Public Access to Meetings
and Minutes.--
(1) In general.--The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to the Commission.
(2) Meetings and minutes.--
(A) Meetings.--
(i) Administration.--All meetings of the Commission shall
be open to the public, except that a meeting or any portion
of it may be closed to the public if it concerns matters or
information described in section 552b(c) of title 5, United
States Code. Interested persons shall be permitted to appear
at open meetings and present oral or written statements on
the subject matter of the meeting. The Commission may
administer oaths or affirmations to any person appearing
before it.
(ii) Notice.--All open meetings of the Commission shall be
preceded by timely public notice in the Federal Register of
the time, place, and subject of the meeting.
(B) Minutes and public availability.--Minutes of each open
meeting shall be kept and shall contain a record of the
people present, a description of the discussion that
occurred, and copies of all statements filed. The minutes and
records of all open meetings and other documents that were
made available to or prepared for the Commission shall be
available for public inspection and copying at a single
location in the offices of the Commission.
(m) Archiving.--Not later than the date of termination of
the Commission, all records and papers of the Commission
shall be delivered to the Archivist of the United States for
deposit in the National Archives.
SEC. 757. SUNSET.
The Commission shall terminate 60 days after the Commission
submits the report required under section 754 to Congress.
______