[House Report 115-116]
[From the U.S. Government Publishing Office]


115th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {      115-116

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



 
                           THIN BLUE LINE ACT

                                _______
                                

  May 11, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 115]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 115) to amend title 18, United States Code, to 
provide additional aggravating factors for the imposition of 
the death penalty based on the status of the victim, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     6
New Budget Authority and Tax Expenditures........................     6
Congressional Budget Office Cost Estimate........................     6
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Performance Goals and Objectives.................................     8
Advisory on Earmarks.............................................     8
Section-by-Section Analysis......................................     8
Changes in Existing Law Made by the Bill, as Reported............     8
Dissenting Views.................................................    13

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Thin Blue Line Act''.

SEC. 2. AGGRAVATING FACTORS FOR DEATH PENALTY.

  Section 3592(c) of title 18, United States Code, is amended by 
inserting after paragraph (16) the following:
          ``(17) Killing or targeting of law enforcement officer.--
                  ``(A) The defendant killed or attempted to kill, in 
                the circumstance described in subparagraph (B), a 
                person who is authorized by law--
                          ``(i) to engage in or supervise the 
                        prevention, detention, investigation, or 
                        prosecution, or the incarceration of any person 
                        for any criminal violation of law;
                          ``(ii) to apprehend, arrest, or prosecute an 
                        individual for any criminal violation of law; 
                        or
                          ``(iii) to be a firefighter or other first 
                        responder.
                  ``(B) The circumstance referred to in subparagraph 
                (A) is that the person was killed or targeted--
                          ``(i) while he or she was engaged in the 
                        performance of his or her official duties;
                          ``(ii) because of the performance of his or 
                        her official duties; or
                          ``(iii) because of his or her status as a 
                        public official or employee.''.

                          Purpose and Summary

    H.R. 115, the ``Thin Blue Line Act,'' amends Federal law to 
add the killing of a state or local law enforcement officer as 
an aggravating factor for a jury to determine during the 
sentencing phase of a trial, when the jury is considering 
whether a sentence of death is justified.

                Background and Need for the Legislation

    Current law provides a list of sixteen aggravating factors 
a jury is required to consider when deciding whether a death 
sentence is warranted for a federal crime.\1\ Forty-one Federal 
offenses, or classes of offenses, are punishable by the death 
penalty,\2\ and as of January 2017, there are 62 Federal 
prisoners on death row.\3\
---------------------------------------------------------------------------
    \1\18 U.S.C. Sec. 3592(c).
    \2\https://deathpenaltyinfo.org/federal-laws-providing-death-
penalty?scid=29&did=192.
    \3\https://deathpenaltyinfo.org/federal-death-row-prisoners#list.
---------------------------------------------------------------------------
    The aggravating factors in current law include: whether 
death occurred while the defendant was committing one of a list 
of specific offenses; whether the defendant acted in an 
especially heinous, cruel, or depraved manner; whether the 
defendant engaged in substantial planning and premeditation; 
whether the victim was particularly vulnerable; or whether the 
victim was a ``high public official.''\4\ In this case, ``high 
public official'' includes a litany of high-ranking public 
persons, from the President to a foreign head of state to a 
judge or law enforcement officer.\5\ Under 3592(14), the law 
enforcement officers in question are required to be Federal 
officers. There is no provision covering a defendant who kills 
a state or local law enforcement officer.
---------------------------------------------------------------------------
    \4\18 U.S.C. Sec. 3592(c)(1); (c)(6); (c)(9); (c)(14).
    \5\18 U.S.C. Sec. 3592(14).
---------------------------------------------------------------------------
    It is likely that a provision covering a state or local law 
enforcement officer would apply in a limited number of cases, 
both because the vast majority of capital cases are prosecuted 
at the state level, and because the circumstances where a 
defendant killed a state or local law enforcement officer 
during the commission of a Federal capital offense are probably 
limited. However, in the cases in which it would apply, the 
provision would be very important. For example, it would likely 
apply in many terrorism cases, including the Boston bombing 
case, where the Tsarnaev brothers killed an officer from the 
Massachusetts Institute of Technology during their flight 
following the attack. It would likely also apply to a case 
involving the death of a state or local law enforcement officer 
who is serving as a member of a Federal task force (e.g., a 
Joint Terrorism Task Force).

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
115.

                        Committee Consideration

    On April 27, 2017, the Committee met in open session and 
ordered the bill H.R. 115 favorably reported, with an 
amendment, by a roll call vote of 19 to 12, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 115.
    1. An Amendment offered by Mr. Buck to clarify that the 
aggravating factor established by the bill applies where the 
victim was killed ``or targeted'' because of his or her status 
as a police officer. Approved by a roll call vote of 12 to 11.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                       Ayes        Nays        Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman......  X           ..........  ............
Mr. Sensenbrenner, Jr. (WI).......  X           ..........  ............
Mr. Smith (TX)....................  ..........  ..........  ............
Mr. Chabot (OH)...................  X           ..........  ............
Mr. Issa (CA).....................  ..........  ..........  ............
Mr. King (IA).....................  X           ..........  ............
Mr. Franks (AZ)...................  X           ..........  ............
Mr. Gohmert (TX)..................  ..........  ..........  ............
Mr. Jordan (OH)...................  ..........  ..........  ............
Mr. Poe (TX)......................  ..........  ..........  ............
Mr. Chaffetz (UT).................  ..........  ..........  ............
Mr. Marino (PA)...................  ..........  ..........  ............
Mr. Gowdy (SC)....................  X           ..........  ............
Mr. Labrador (ID).................  ..........  ..........  ............
Mr. Farenthold (TX)...............  ..........  ..........  ............
Mr. Collins (GA)..................  X           ..........  ............
Mr. DeSantis (FL).................  ..........  ..........  ............
Mr. Buck (CO).....................  X           ..........  ............
Mr. Ratcliffe (TX)................  X           ..........  ............
Ms. Roby (AL).....................  X           ..........  ............
Mr. Gaetz (FL)....................  ..........  ..........  ............
Mr. Johnson (LA)..................  X           ..........  ............
Mr. Biggs (AZ)....................  X           ..........  ............
Mr. Conyers, Jr. (MI), Ranking      ..........  X           ............
 Member.
Mr. Nadler (NY)...................  ..........  X           ............
Ms. Lofgren (CA)..................  ..........  X           ............
Ms. Jackson Lee (TX)..............  ..........  ..........  ............
Mr. Cohen (TN)....................  ..........  ..........  ............
Mr. Johnson (GA)..................  ..........  ..........  ............
Mr. Deutch (FL)...................  ..........  ..........  ............
Mr. Gutierrez (IL)................  ..........  ..........  ............
Ms. Bass (CA).....................  ..........  ..........  ............
Mr. Richmond (LA).................  ..........  X           ............
Mr. Jeffries (NY).................  ..........  X           ............
Mr. Cicilline (RI)................  ..........  X           ............
Mr. Swalwell (CA).................  ..........  X           ............
Mr. Lieu (CA).....................  ..........  X           ............
Mr. Raskin (MD)...................  ..........  X           ............
Ms. Jayapal (WA)..................  ..........  X           ............
Mr. Schneider (IL)................  ..........  X           ............
                                   -------------------------------------
    Total.........................  12          11          ............
------------------------------------------------------------------------

    2. Motion by Mr. Sensenbrenner, to table the appeal of the 
ruling of the chair that Richmond Amendment #5 is not germane. 
Passed by a roll call vote of 16 to 15.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                       Ayes        Nays        Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman......  X           ..........  ............
Mr. Sensenbrenner, Jr. (WI).......  X           ..........  ............
Mr. Smith (TX)....................  X           ..........  ............
Mr. Chabot (OH)...................  X           ..........  ............
Mr. Issa (CA).....................  X           ..........  ............
Mr. King (IA).....................  ..........  ..........  ............
Mr. Franks (AZ)...................  X           ..........  ............
Mr. Gohmert (TX)..................  ..........  ..........  ............
Mr. Jordan (OH)...................  X           ..........  ............
Mr. Poe (TX)......................  ..........  ..........  ............
Mr. Chaffetz (UT).................  ..........  ..........  ............
Mr. Marino (PA)...................  ..........  ..........  ............
Mr. Gowdy (SC)....................  X           ..........  ............
Mr. Labrador (ID).................  X           ..........  ............
Mr. Farenthold (TX)...............  X           ..........  ............
Mr. Collins (GA)..................  X           ..........  ............
Mr. DeSantis (FL).................  ..........  ..........  ............
Mr. Buck (CO).....................  X           ..........  ............
Mr. Ratcliffe (TX)................  X           ..........  ............
Ms. Roby (AL).....................  X           ..........  ............
Mr. Gaetz (FL)....................  ..........  ..........  ............
Mr. Johnson (LA)..................  X           ..........  ............
Mr. Biggs (AZ)....................  X           ..........  ............
Mr. Conyers, Jr. (MI), Ranking      ..........  X           ............
 Member.
Mr. Nadler (NY)...................  ..........  X           ............
Ms. Lofgren (CA)..................  ..........  X           ............
Ms. Jackson Lee (TX)..............  ..........  X           ............
Mr. Cohen (TN)....................  ..........  X           ............
Mr. Johnson (GA)..................  ..........  X           ............
Mr. Deutch (FL)...................  ..........  X           ............
Mr. Gutierrez (IL)................  ..........  ..........  ............
Ms. Bass (CA).....................  ..........  ..........  ............
Mr. Richmond (LA).................  ..........  X           ............
Mr. Jeffries (NY).................  ..........  X           ............
Mr. Cicilline (RI)................  ..........  X           ............
Mr. Swalwell (CA).................  ..........  X           ............
Mr. Lieu (CA).....................  ..........  X           ............
Mr. Raskin (MD)...................  ..........  X           ............
Ms. Jayapal (WA)..................  ..........  X           ............
Mr. Schneider (IL)................  ..........  X           ............
                                   -------------------------------------
    Total.........................  16          15          ............
------------------------------------------------------------------------

    3. Motion to report H.R. 115 favorably to the House. Agreed 
to by a roll call vote of 19 to 12.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                       Ayes        Nays        Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman......  X           ..........  ............
Mr. Sensenbrenner, Jr. (WI).......  X           ..........  ............
Mr. Smith (TX)....................  X           ..........  ............
Mr. Chabot (OH)...................  X           ..........  ............
Mr. Issa (CA).....................  X           ..........  ............
Mr. King (IA).....................  ..........  ..........  ............
Mr. Franks (AZ)...................  X           ..........  ............
Mr. Gohmert (TX)..................  X           ..........  ............
Mr. Jordan (OH)...................  X           ..........  ............
Mr. Poe (TX)......................  X           ..........  ............
Mr. Chaffetz (UT).................  ..........  ..........  ............
Mr. Marino (PA)...................  ..........  ..........  ............
Mr. Gowdy (SC)....................  X           ..........  ............
Mr. Labrador (ID).................  X           ..........  ............
Mr. Farenthold (TX)...............  X           ..........  ............
Mr. Collins (GA)..................  X           ..........  ............
Mr. DeSantis (FL).................  ..........  ..........  ............
Mr. Buck (CO).....................  X           ..........  ............
Mr. Ratcliffe (TX)................  X           ..........  ............
Ms. Roby (AL).....................  X           ..........  ............
Mr. Gaetz (FL)....................  ..........  ..........  ............
Mr. Johnson (LA)..................  X           ..........  ............
Mr. Biggs (AZ)....................  X           ..........  ............
Mr. Conyers, Jr. (MI), Ranking      ..........  X           ............
 Member.
Mr. Nadler (NY)...................  ..........  X           ............
Ms. Lofgren (CA)..................  ..........  X           ............
Ms. Jackson Lee (TX)..............  ..........  ..........  ............
Mr. Cohen (TN)....................  ..........  X           ............
Mr. Johnson (GA)..................  ..........  X           ............
Mr. Deutch (FL)...................  ..........  ..........  ............
Mr. Gutierrez (IL)................  ..........  ..........  ............
Ms. Bass (CA).....................  ..........  X           ............
Mr. Richmond (LA).................  ..........  ..........  ............
Mr. Jeffries (NY).................  ..........  X           ............
Mr. Cicilline (RI)................  ..........  X           ............
Mr. Swalwell (CA).................  X           ..........  ............
Mr. Lieu (CA).....................  ..........  X           ............
Mr. Raskin (MD)...................  ..........  X           ............
Ms. Jayapal (WA)..................  ..........  X           ............
Mr. Schneider (IL)................  ..........  X           ............
                                   -------------------------------------
    Total.........................  19          12          ............
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 115, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                       May 8, 2017.
Hon. Bob Goodlatte,
Chairman.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 115, the Thin Blue 
Line Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese 
who can be reached at 226-2860.
            Sincerely,
                                                        Keith Hall.
    Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member

H.R. 115--Thin Blue Line Act

    H.R. 115 would require federal courts to consider the 
murder, attempted murder, or targeting of a law enforcement 
official or first responder as an aggravating circumstance when 
determining if a death sentence is warranted for a convicted 
felon.
    Based on an analysis of information provided by the 
Administrative Office of the U.S. Courts about the number of 
trials the bill would probably affect, CBO estimates that 
implementing H.R. 115 would have no significant effect on the 
federal budget.
    Enacting H.R. 115 could affect direct spending and 
revenues; therefore, pay-as-you-go procedures apply. Enacting 
the bill could increase the number of federal appeals filed for 
people who have been sentenced to death under the bill. Such 
increased filings would increase the collection of court filing 
fees, which are recorded in the budget as revenues; a portion 
of which can be spent without further appropriation. However, 
such fees are waived for defendants represented by public 
defenders. Because the number of additional appeals is probably 
very small and because the majority of such appeals would have 
defendants with public defenders, CBO estimates that enacting 
the bill would have an insignificant effect on revenues and 
associated direct spending in any year; the net effect on the 
deficit would be negligible.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2028.
    H.R. 115 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Robert Reese. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 115 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 115 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
115, the ``Thin Blue Line Act,'' amends Federal law to add the 
killing of a state or local law enforcement officer as an 
aggravating factor for a jury to determine during the 
sentencing phase of a trial, when the jury is considering 
whether a sentence of death is justified.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 115 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    Section 1. Short Title. This section cites the short title 
of the legislation as the ``Thin Blue Line Act.''
    Section 2. Aggravating Factors for Death Penalty. This 
section adds the following provision to 18 U.S.C. 3592(c):

    ``(17) Killing of Law Enforcement Officer.--
                  (A) The defendant killed or attempted to 
                kill, in the circumstance described in 
                subparagraph (B), a person who is authorized by 
                law--
                          (i) to engage in or supervise the 
                        prevention, detention, investigation, 
                        or prosecution, or the incarceration of 
                        any person for any criminal violation 
                        of law;
                          (ii) to apprehend, arrest, or 
                        prosecute an individual for any 
                        criminal violation of law; or
                          (iii) to be a firefighter or other 
                        first responder.
                  (B) The circumstance referred to in 
                subparagraph (A) is that the person was 
                killed--
                          (i) while he or she was engaged in 
                        the performance of his or her official 
                        duties;
                          (ii) because of the performance of 
                        his or her official duties; or
                          (iii) because of his or her status as 
                        a public official or employee.''.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *



PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


CHAPTER 228--DEATH SENTENCE

           *       *       *       *       *       *       *



Sec. 3592. Mitigating and aggravating factors to be considered in 
                    determining whether a sentence of death is 
                    justified

  (a) Mitigating Factors.--In determining whether a sentence of 
death is to be imposed on a defendant, the finder of fact shall 
consider any mitigating factor, including the following:
          (1) Impaired capacity.--The defendant's capacity to 
        appreciate the wrongfulness of the defendant's conduct 
        or to conform conduct to the requirements of law was 
        significantly impaired, regardless of whether the 
        capacity was so impaired as to constitute a defense to 
        the charge.
          (2) Duress.--The defendant was under unusual and 
        substantial duress, regardless of whether the duress 
        was of such a degree as to constitute a defense to the 
        charge.
          (3) Minor participation.--The defendant is punishable 
        as a principal in the offense, which was committed by 
        another, but the defendant's participation was 
        relatively minor, regardless of whether the 
        participation was so minor as to constitute a defense 
        to the charge.
          (4) Equally culpable defendants.--Another defendant 
        or defendants, equally culpable in the crime, will not 
        be punished by death.
          (5) No prior criminal record.--The defendant did not 
        have a significant prior history of other criminal 
        conduct.
          (6) Disturbance.--The defendant committed the offense 
        under severe mental or emotional disturbance.
          (7) Victim's consent.--The victim consented to the 
        criminal conduct that resulted in the victim's death.
          (8) Other factors.--Other factors in the defendant's 
        background, record, or character or any other 
        circumstance of the offense that mitigate against 
        imposition of the death sentence.
  (b) Aggravating Factors for Espionage and Treason.--In 
determining whether a sentence of death is justified for an 
offense described in section 3591(a)(1), the jury, or if there 
is no jury, the court, shall consider each of the following 
aggravating factors for which notice has been given and 
determine which, if any, exist:
          (1) Prior espionage or treason offense.--The 
        defendant has previously been convicted of another 
        offense involving espionage or treason for which a 
        sentence of either life imprisonment or death was 
        authorized by law.
          (2) Grave risk to national security.--In the 
        commission of the offense the defendant knowingly 
        created a grave risk of substantial danger to the 
        national security.
          (3) Grave risk of death.--In the commission of the 
        offense the defendant knowingly created a grave risk of 
        death to another person.
The jury, or if there is no jury, the court, may consider 
whether any other aggravating factor for which notice has been 
given exists.
  (c) Aggravating Factors for Homicide.--In determining whether 
a sentence of death is justified for an offense described in 
section 3591(a)(2), the jury, or if there is no jury, the 
court, shall consider each of the following aggravating factors 
for which notice has been given and determine which, if any, 
exist:
          (1) Death during commission of another crime.--The 
        death, or injury resulting in death, occurred during 
        the commission or attempted commission of, or during 
        the immediate flight from the commission of, an offense 
        under section 32 (destruction of aircraft or aircraft 
        facilities), section 33 (destruction of motor vehicles 
        or motor vehicle facilities), section 37 (violence at 
        international airports), section 351 (violence against 
        Members of Congress, Cabinet officers, or Supreme Court 
        Justices), an offense under section 751 (prisoners in 
        custody of institution or officer), section 794 
        (gathering or delivering defense information to aid 
        foreign government), section 844(d) (transportation of 
        explosives in interstate commerce for certain 
        purposes), section 844(f) (destruction of Government 
        property by explosives), section 1118 (prisoners 
        serving life term), section 1201 (kidnapping), section 
        844(i) (destruction of property affecting interstate 
        commerce by explosives), section 1116 (killing or 
        attempted killing of diplomats), section 1203 (hostage 
        taking), section 1992 (wrecking trains), section 2245 
        (offenses resulting in death), section 2280 (maritime 
        violence), section 2281 (maritime platform violence), 
        section 2332 (terrorist acts abroad against United 
        States nationals), section 2332a (use of weapons of 
        mass destruction), or section 2381 (treason) of this 
        title, or section 46502 of title 49, United States Code 
        (aircraft piracy).
          (2) Previous conviction of violent felony involving 
        firearm.--For any offense, other than an offense for 
        which a sentence of death is sought on the basis of 
        section 924(c), the defendant has previously been 
        convicted of a Federal or State offense punishable by a 
        term of imprisonment of more than 1 year, involving the 
        use or attempted or threatened use of a firearm (as 
        defined in section 921) against another person.
          (3) Previous conviction of offense for which a 
        sentence of death or life imprisonment was 
        authorized.--The defendant has previously been 
        convicted of another Federal or State offense resulting 
        in the death of a person, for which a sentence of life 
        imprisonment or a sentence of death was authorized by 
        statute.
          (4) Previous conviction of other serious offenses.--
        The defendant has previously been convicted of 2 or 
        more Federal or State offenses, punishable by a term of 
        imprisonment of more than 1 year, committed on 
        different occasions, involving the infliction of, or 
        attempted infliction of, serious bodily injury or death 
        upon another person.
          (5) Grave risk of death to additional persons.--The 
        defendant, in the commission of the offense, or in 
        escaping apprehension for the violation of the offense, 
        knowingly created a grave risk of death to 1 or more 
        persons in addition to the victim of the offense.
          (6) Heinous, cruel, or depraved manner of committing 
        offense.--The defendant committed the offense in an 
        especially heinous, cruel, or depraved manner in that 
        it involved torture or serious physical abuse to the 
        victim.
          (7) Procurement of offense by payment.--The defendant 
        procured the commission of the offense by payment, or 
        promise of payment, of anything of pecuniary value.
          (8) Pecuniary gain.--The defendant committed the 
        offense as consideration for the receipt, or in the 
        expectation of the receipt, of anything of pecuniary 
        value.
          (9) Substantial planning and premeditation.--The 
        defendant committed the offense after substantial 
        planning and premeditation to cause the death of a 
        person or commit an act of terrorism.
          (10) Conviction for two felony drug offenses.--The 
        defendant has previously been convicted of 2 or more 
        State or Federal offenses punishable by a term of 
        imprisonment of more than one year, committed on 
        different occasions, involving the distribution of a 
        controlled substance.
          (11) Vulnerability of victim.--The victim was 
        particularly vulnerable due to old age, youth, or 
        infirmity.
          (12) Conviction for serious federal drug offenses.--
        The defendant had previously been convicted of 
        violating title II or III of the Comprehensive Drug 
        Abuse Prevention and Control Act of 1970 for which a 
        sentence of 5 or more years may be imposed or had 
        previously been convicted of engaging in a continuing 
        criminal enterprise.
          (13) Continuing criminal enterprise involving drug 
        sales to minors.--The defendant committed the offense 
        in the course of engaging in a continuing criminal 
        enterprise in violation of section 408(c) of the 
        Controlled Substances Act (21 U.S.C. 848(c)), and that 
        violation involved the distribution of drugs to persons 
        under the age of 21 in violation of section 418 of that 
        Act (21 U.S.C. 859).
          (14) High public officials.--The defendant committed 
        the offense against--
                  (A) the President of the United States, the 
                President-elect, the Vice President, the Vice 
                President-elect, the Vice President-designate, 
                or, if there is no Vice President, the officer 
                next in order of succession to the office of 
                the President of the United States, or any 
                person who is acting as President under the 
                Constitution and laws of the United States;
                  (B) a chief of state, head of government, or 
                the political equivalent, of a foreign nation;
                  (C) a foreign official listed in section 
                1116(b)(3)(A), if the official is in the United 
                States on official business; or
                  (D) a Federal public servant who is a judge, 
                a law enforcement officer, or an employee of a 
                United States penal or correctional 
                institution--
                          (i) while he or she is engaged in the 
                        performance of his or her official 
                        duties;
                          (ii) because of the performance of 
                        his or her official duties; or
                          (iii) because of his or her status as 
                        a public servant.
                For purposes of this subparagraph, a ``law 
                enforcement officer'' is a public servant 
                authorized by law or by a Government agency or 
                Congress to conduct or engage in the 
                prevention, investigation, or prosecution or 
                adjudication of an offense, and includes those 
                engaged in corrections, parole, or probation 
                functions.
          (15) Prior conviction of sexual assault or child 
        molestation.--In the case of an offense under chapter 
        109A (sexual abuse) or chapter 110 (sexual abuse of 
        children), the defendant has previously been convicted 
        of a crime of sexual assault or crime of child 
        molestation.
          (16) Multiple killings or attempted killings.--The 
        defendant intentionally killed or attempted to kill 
        more than one person in a single criminal episode.
          (17) Killing or targeting of law enforcement 
        officer.--
                  (A) The defendant killed or attempted to 
                kill, in the circumstance described in 
                subparagraph (B), a person who is authorized by 
                law--
                          (i) to engage in or supervise the 
                        prevention, detention, investigation, 
                        or prosecution, or the incarceration of 
                        any person for any criminal violation 
                        of law;
                          (ii) to apprehend, arrest, or 
                        prosecute an individual for any 
                        criminal violation of law; or
                          (iii) to be a firefighter or other 
                        first responder.
                  (B) The circumstance referred to in 
                subparagraph (A) is that the person was killed 
                or targeted--
                          (i) while he or she was engaged in 
                        the performance of his or her official 
                        duties;
                          (ii) because of the performance of 
                        his or her official duties; or
                          (iii) because of his or her status as 
                        a public official or employee.
The jury, or if there is no jury, the court, may consider 
whether any other aggravating factor for which notice has been 
given exists.
  (d) Aggravating Factors for Drug Offense Death Penalty.--In 
determining whether a sentence of death is justified for an 
offense described in section 3591(b), the jury, or if there is 
no jury, the court, shall consider each of the following 
aggravating factors for which notice has been given and 
determine which, if any, exist:
          (1) Previous conviction of offense for which a 
        sentence of death or life imprisonment was 
        authorized.--The defendant has previously been 
        convicted of another Federal or State offense resulting 
        in the death of a person, for which a sentence of life 
        imprisonment or death was authorized by statute.
          (2) Previous conviction of other serious offenses.--
        The defendant has previously been convicted of two or 
        more Federal or State offenses, each punishable by a 
        term of imprisonment of more than one year, committed 
        on different occasions, involving the importation, 
        manufacture, or distribution of a controlled substance 
        (as defined in section 102 of the Controlled Substances 
        Act (21 U.S.C. 802)) or the infliction of, or attempted 
        infliction of, serious bodily injury or death upon 
        another person.
          (3) Previous serious drug felony conviction.--The 
        defendant has previously been convicted of another 
        Federal or State offense involving the manufacture, 
        distribution, importation, or possession of a 
        controlled substance (as defined in section 102 of the 
        Controlled Substances Act (21 U.S.C. 802)) for which a 
        sentence of five or more years of imprisonment was 
        authorized by statute.
          (4) Use of firearm.--In committing the offense, or in 
        furtherance of a continuing criminal enterprise of 
        which the offense was a part, the defendant used a 
        firearm or knowingly directed, advised, authorized, or 
        assisted another to use a firearm to threaten, 
        intimidate, assault, or injure a person.
          (5) Distribution to persons under 21.--The offense, 
        or a continuing criminal enterprise of which the 
        offense was a part, involved conduct proscribed by 
        section 418 of the Controlled Substances Act (21 U.S.C. 
        859) which was committed directly by the defendant.
          (6) Distribution near schools.--The offense, or a 
        continuing criminal enterprise of which the offense was 
        a part, involved conduct proscribed by section 419 of 
        the Controlled Substances Act (21 U.S.C. 860) which was 
        committed directly by the defendant.
          (7) Using minors in trafficking.--The offense, or a 
        continuing criminal enterprise of which the offense was 
        a part, involved conduct proscribed by section 420 of 
        the Controlled Substances Act (21 U.S.C. 861) which was 
        committed directly by the defendant.
          (8) Lethal adulterant.--The offense involved the 
        importation, manufacture, or distribution of a 
        controlled substance (as defined in section 102 of the 
        Controlled Substances Act (21 U.S.C. 802)), mixed with 
        a potentially lethal adulterant, and the defendant was 
        aware of the presence of the adulterant.
The jury, or if there is no jury, the court, may consider 
whether any other aggravating factor for which notice has been 
given exists.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    Though troubled and saddened by the recent attacks on law 
enforcement officials, we believe that H.R. 115, the ``Thin 
Blue Line Act,'' is counterproductive to ensuring public safety 
and only serves to exacerbate concerns with the unfair and 
unjust federal death penalty. As demonstrated by the robust 
discussion of the amendments proposed to this legislation 
during the Committee's markup, the bill is both unnecessary and 
constitutionally problematic. The failure to hold a hearing on 
death penalty legislation also sets a troubling precedent given 
the many legal and policy concerns present in capital 
sentencing.
    In recognition of the serious concerns raised by this 
legislation, organizations committed to the protection of civil 
rights and civil liberties have written letters in opposition, 
particularly noting that the Thin Blue Line Act, ``is an 
unnecessary and misguided attempt to politicize the unfortunate 
deaths of law enforcement officers and could ultimately 
exacerbate existing tension between law enforcement and the 
communities they serve.''\1\
---------------------------------------------------------------------------
    \1\Leadership Conference on Civil and Human Rights, Letter Opposing 
H.R. 115, the Thin Blue Line Act of 2017, April 27, 2017. See also 
Letter to Chairman Goodlatte and Ranking Member Conyers, Opposing H.R. 
115, the Thin Blue Line Act of 2017, April 26, 2017 (signed by 10 
organizations, including the ACLU, NAACP, Sentencing Project, 
Constitution Project and National Association of Criminal Defense 
Lawyers and five additional faith organizations); Letter to Chairman 
Goodlatte and Ranking Member Conyers, Law Enforcement Opposition to 
H.R. 115, April 26, 2017 (signed by members of Public Safety Officials 
on the Death Penalty) and NAACP Legal Defense and Educational Fund, 
Letter Opposing H.R. 115, the Thin Blue Line Act of 2017, April 27, 
2017.
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    For these reasons and those discussed below, we 
respectfully dissent and urge our colleagues to oppose this 
legislation.

                       DESCRIPTION AND BACKGROUND

    H.R. 115 would amend the federal criminal code to expand 
the list of statutory aggravating factors in federal death 
penalty cases to also include killing or targeting a law 
enforcement officer, firefighter, or other first responder. 
Aggravating factors are intended to narrowly define the group 
of offenders who are eligible for the death penalty by 
providing specific factors that judges and juries should 
consider in determining whether a sentence of death is 
justified.\2\ Passage of this bill would add a 17th statutory 
aggravating factor for federal death penalty eligible 
offenses.\3\
---------------------------------------------------------------------------
    \2\See Godfrey v. Georgia, 446 U.S. 420 (1980) (aggravating factors 
must give jurors clear standards for determining who receives the death 
penalty).
    \3\See 18 U.S.C. 3592(c) (2006). Examples of existing statutory 
aggravating factors include previous conviction of a violent felony 
including a firearm; previous conviction of an offense for which a 
sentence of death or life imprisonment was authorized; heinous, cruel, 
or depraved manner of committing offense; and vulnerability of the 
victim due to old age, youth, or infirmity.
---------------------------------------------------------------------------
    As explained below, the addition of a 17th aggravating 
factor is unnecessary because it will not fill any gap in 
federal authority. Federal prosecutors already can and do seek 
the death penalty for such killings and the bill does not 
provide a stiffer penalty than can be had in state court. The 
measure is also unwise because it raises constitutional 
concerns of arbitrariness, risking the finality of convictions 
and sentences.

                         CONCERNS WITH H.R. 115

I. H.R. 115 DUPLICATES FEDERAL AND STATE LAWS THAT ENHANCE SENTENCES OF 
    PERSONS CONVICTED OF CRIMES OF VIOLENCE AGAINST LAW ENFORCEMENT

    H.R. 115 needlessly duplicates federal and state laws that 
already impose heightened punishments on persons found guilty 
of violent crimes against law enforcement. For example, the 
very law that the bill seeks to amend, 18 U.S.C. 3592, already 
states that a crime against a high public official, including 
``a judge, a law enforcement officer, or an employee of a 
United States penal or correctional institution,'' is an 
aggravating factor that may be considered in determining 
whether a death sentence should be imposed.\4\ Other federal 
laws also impose a life sentence or death on persons convicted 
of killing state and local law enforcement officers or other 
employees assisting with federal investigations,\5\ as well as 
officers of the U.S. courts.\6\
---------------------------------------------------------------------------
    \4\18 U.S.C. 3592(c)(14) (2006).
    \5\18 U.S.C. 1121(a)(1) (1996).
    \6\18 U.S.C. 1503 (1996).
---------------------------------------------------------------------------
    Given the large number and broad reach of the existing 
aggravating factors in section 3592, most, if not all such 
killings of law enforcement or first responders already meet 
one or more of the existing aggravating factors that permit 
application of the federal death penalty. Significantly, 
however, the existing 16 factors do not bind, limit or restrict 
the government from alleging other specific aggravating 
factors. In addition, the government is permitted to identify 
its own, ``non-statutory'' aggravating factors to justify 
application of the death penalty. Typically, the government 
alleges both statutory and non-statutory aggravating factors 
for the jury's consideration. The fact that the victim was a 
state law enforcement officer or first responder can be 
denominated a non-statutory aggravating factor and thus is 
fully addressed by the prosecution and considered by the jury. 
It is, therefore, virtually impossible to imagine a law 
enforcement/first responder killing that can be prosecuted in 
federal court in which the death penalty would not be available 
under existing law.
    Recent federal prosecutions demonstrate that federal 
prosecutors already have the tools they need to seek the death 
penalty in cases involving the killing of state law enforcement 
officers/first responders:
           U.S. v. Ronell Wilson, E.D.N.Y.--two New 
        York City detectives were killed during a gun sting 
        operation. The defendant was sentenced to death.
           U.S. v. Donzell McCauley, D. D.C.--a 
        Washington, DC police officer was killed by a defendant 
        who sought to avoid apprehension. The defendant 
        received a sentence of life without the possibility of 
        parole following a guilty plea.
           U.S. v. Kenneth Wilk, S.D. Fla--a deputy 
        sheriff was killed while attempting to serve a search 
        warrant. Following a capital trial, the defendant was 
        sentenced to life without the possibility of parole.
           U.S. v. Kenneth Barrett, E.D. Okla.--a state 
        law enforcement officer was killed during a drug raid. 
        The defendant was sentenced to death.
           LaShaun Casey, D. P.R.--an undercover police 
        officer was killed in a carjacking related to a drug 
        transaction. A capital jury sentenced the defendant to 
        life without the possibility of parole.
           Dzhokhar Tsarnaev, D. Mass.--an on-duty MIT 
        police officer was killed by the defendant and his 
        brother during flight to avoid apprehension for the 
        Boston Marathon Bombing. The defendant was found to be 
        eligible for the death penalty for this murder; he was 
        sentenced to life without the possibility of parole for 
        this murder, and to death for two others.
    Additionally, all 50 states have laws in place that enhance 
penalties for crimes against peace officers, and in some 
instances, crimes against first responders.\7\ For example, in 
Colorado, a person convicted of killing a peace officer, fire 
fighter or emergency medical service provider may be sentenced 
to life without the possibility of parole or death.\8\
---------------------------------------------------------------------------
    \7\See Anti-Defamation League, Statutes Providing Enhanced 
Penalties for Crimes Against Police, Fifty States Against Hate, 
Washington, DC (2016).
    \8\Colo. Rev. Stat. 18-3-107 (2014).
---------------------------------------------------------------------------

   II. H.R. 115 RAISES NEW CONSTITUTIONAL CONCERNS OF ARBITRARINESS, 
       LEADING TO LENGTHIER DELAYS AND CONFUSION IN CAPITAL CASES

    H.R. 115 would generate additional constitutional issues in 
an already complex area of law, creating grounds for appellate 
reversals and prolonging appeals in capital cases.\9\ To 
address the arbitrary results in capital cases that rendered it 
unconstitutional, the Supreme Court in Furman v. Georgia\10\ 
and Gregg v. Georgia\11\ arrived at the doctrine of 
``narrowing'' which allowed states to specify aggravating 
circumstances or factors for a jury to determine whether any 
eligible defendant was particularly worthy of the death 
penalty. These long lists of aggravating factors give 
prosecutors and courts broad discretion in imposing the death 
penalty, allowing for substantial arbitrariness in the capital 
punishment system.\12\ A proliferation of aggravators as 
envisioned in this legislation undermines the narrowing 
function required by Furman and Gregg, thus risking the 
constitutionality of the federal death penalty. The ultimate 
impact of such an ever-expanding death penalty is that almost 
all murders become eligible for the death penalty, a result 
that is inconsistent with the Eighth Amendment.\13\
---------------------------------------------------------------------------
    \9\See Kirchmeier, Jeffrey L., Casting a Wider Net: Another Decade 
of Legislative Expansion of the Death Penalty in the United States. 
Pepperdine Law Review, Vol. 34, No. 1, 2006. Available at SSRN: https.
    \10\408 U.S. 238 (1972).
    \11\428 U.S. 153 (1976).
    \12\See Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: 
The Paradox of Today's Arbitrary and Mandatory Capital Punishment 
Scheme, 6 WM. & MARY BILL RTS. J. 345, 395-96 (1998).
    \13\See Carol S. & Jordan M. Steiker, Courting Death: The Supreme 
Court and Capital Punishment (2016).
---------------------------------------------------------------------------
    In addition, a statutory aggravator based solely on a 
victim's status as a law enforcement officer or first responder 
risks inviting arguments of comparable worth, weighing the 
defendant's life against the victim's, and inviting 
unconstitutional and improper testimony concerning the impact 
of the crime on law enforcement.\14\ Finally, general 
principles of federalism and appropriate deference to state 
decisions should discourage (if not prevent) Congress from 
legislating so as to effectively override considered state 
policy decisions to not employ the death penalty.\15\
---------------------------------------------------------------------------
    \14\See, e.g, Zant v. Stephens, 462 U.S. 862, 877 (1983) (noting 
that death penalty statutes must ``genuinely narrow the class of 
persons eligible for the death penalty . . . .'').
    \15\In addition, H.R. 115 does not have a mens rea requirement with 
respect to the victim's status as a law officer, unlike the other 
specific intent elements found in the federal death penalty sentencing 
statute. In other words, it applies to a homeowner who returns fire, in 
the dark, during a police no-knock search. See, e.g., Kevin Sack, Door 
Busting Drug Raids Leave a Trail of Blood, N.Y. Times, Mar. 18. 2017 
(documenting the instances in which police have been shot at or killed 
in the violent execution of a no-knock warrant), https://
www.nytimes.com/interactive/2017/03/18/us/forced-entry-warrant-drug-
raid.html?_r=0. Thus, the death penalty would apply to a homeowner who, 
in the middle of the night and in the dark, without knowing that the 
person invading their home is a police officer, shoots and kills who 
they believe is an intruder.
---------------------------------------------------------------------------

 III. H.R. 115 DOES NOT ADDRESS DOCUMENTED AND SYSTEMIC UNFAIRNESS AND 
        RACIAL DISPARITY IN THE IMPOSITION OF THE DEATH PENALTY

    During the markup of H.R. 115, Members raised numerous 
concerns related to racial disparity in application of capital 
punishment, the lack of qualified counsel and sufficient 
resources to represent those facing the death penalty, and 
faulty forensic ``science'' testimony offered in support of 
convictions in death penalty cases. Members offered amendments 
to study and address these issues through standards for 
attorney training,\16\ provision of resources,\17\ and 
examination of forensic science.\18\ These amendments were 
dismissed as non-germane even though they were directly related 
to the death penalty subject matter of the bill.
---------------------------------------------------------------------------
    \16\Amendment offered by Rep. David N. Cicilline (D-RI) requiring 
the Attorney General to study the American Bar Association defense 
counsel guidelines and make recommendations for federal implementation. 
Unofficial Tr. of the Markup of H.R. 115 Before the H. Comm. on the 
Judiciary, 115th Cong. page 27 (Apr. 27, 2017) [hereinafter Markup 
Tr.].
    \17\Amendment offered by Rep. Cicilline authorizing funds for the 
defense of persons indicted for capital crimes. Id. at 33.
    \18\Amendment offered by Rep. Cicilline creating a commission to 
recommend standards for the use of forensic science in capital crimes 
cases. Id. at 42.
---------------------------------------------------------------------------
    The statistics concerning the pervasive racial disparities 
found in the imposition of the death penalty are staggering and 
would clearly impact the application of any additional 
aggravating factor. African Americans comprise 42% of death-row 
prisoners,\19\ but only 13% of the Nation's population. Between 
1976 and 2016, 77% of the victims of executed prisoners were 
white, while only 15% of the victims were African American,\20\ 
even though almost half of all homicide victims overall are 
African American.\21\ Alarmingly, since 1976, only 20 white 
prisoners were executed for the murder of an African-American 
victim, while 286 African-American prisoners have been executed 
for the murder of a white victim.\22\
---------------------------------------------------------------------------
    \19\See Death Penalty Information Center, National Statistics on 
the Death Penalty and Race (Apr. 2017), https://deathpenaltyinfo.org/
race-death-row-inmates-executed-1976?scid=5&did=184.
    \20\Id.
    \21\See Alexia Cooper & Erica L. Smith, Homicide in the U.S. Known 
to Law Enforcement, 2011, U.S. Dep't of Justice, Office of Justice 
Programs, Bureau of Justice Statistics, NCJ243035, at 4 tbl.1 (Dec. 
2013).
    \22\See Death Penalty Information Center, National Statistics on 
the Death Penalty and Race (Apr. 2017), https://deathpenaltyinfo.org/
race-death-row-inmates-executed-1976?scid= 5&did=184.
---------------------------------------------------------------------------
    The federal death penalty, in particular, is rife with 
troubling evidence of racial disparity: 36 of the 61 people on 
federal death row are African-American, Latino, Asian or 
Native-American. If you break this down by federal circuit, the 
results are even more disturbing: For example, 15 of 18 men who 
have received a federal death sentence in the 5th Circuit 
(Texas, Louisiana, and Mississippi) in the modern era have been 
people of color.\23\
---------------------------------------------------------------------------
    \23\See Federal Capital Habeas Project, available at http://
www.capdefnet.org/2255/.
---------------------------------------------------------------------------
    These disparities should be troubling to anyone who 
believes in the fair administration of the rule of law. 
Researchers have posited that the reasons for racial 
disparities in the imposition of the death penalty include a 
perceived link between race and dangerousness, as well as 
implicit biases that result in a higher valuing of white 
victims over others.\24\ Regardless of the explanation, 
sponsors of this legislation should study and understand the 
impact of any proposal that will likely exacerbate these 
disparities. To underscore this need, Representative Cedric 
Richmond (D-LA) offered amendments to H.R. 115 that would have 
attempted to gather more information on the question of racial 
disparities by requesting studies be conducted on disparities 
in the conviction and execution of capital punishment and on 
the disparities of individuals sentenced to death and 
thereafter exonerated. These amendments, however, were ruled 
non-germane and the Committee was therefore prevented from 
debating them on their merits.\25\
---------------------------------------------------------------------------
    \24\See, e.g., Jennifer L. Eberhardt et al., Looking Deathworthy: 
Perceived Stereotypicality of Black Defendants Predicts Capital 
Sentencing Outcomes 384 (Cornell L. Fac. Publ'ns 2006), available at 
http://scholarship.law.cornell.edu/cgi/
viewcontent.cgi?article=1040&context=lsrp_papers (finding that after 
controlling for case and individual differences, ``defendants whose 
appearance was perceived as more stereotypically Black were more likely 
to receive a death sentence than defendants whose appearance was 
perceived as less stereotypically Black'').
    \25\Amendments offered by Rep. Cedrick Richmond (1) requiring the 
Attorney General to study disparities in the conviction, and execution 
of capital punishment, Markup Tr. at 50, and (2) requiring the Attorney 
General to study disparities of individuals sentenced to death and 
thereafter exonerated, Markup Tr. at 57.
---------------------------------------------------------------------------
    Ranking Member John Conyers, Jr. (D-MI) raised serious 
concerns at the markup regarding the use of procedural rulings 
to block the Committee from considering Democratic amendments 
that would have directly addressed these issues of racial 
disparity and systemic unfairness in the imposition of the 
death penalty. While the amendments may not have been 
technically germane under House Rules, they were very relevant 
to any serious discussion about the death penalty. He noted 
that by blocking these amendments on procedural grounds, the 
Committee failed to get to the ``real heart of the concerns 
regarding the death penalty'' and further noted that when we 
open this issue ``we must be prepared to deal with it in its 
totality.''\26\
---------------------------------------------------------------------------
    \26\Markup Tr. at 85.
---------------------------------------------------------------------------

  IV. THERE IS NO EVIDENCE OF PUBLIC SUPPORT FOR THE EXPANSION OF THE 
                             DEATH PENALTY

    Finally, H.R. 115 is under consideration at a time when 
Americans' support of the death penalty is at its lowest in 
over 40 years. According to the Pew Research Center, public 
support for the death penalty has dropped seven points, from 
56% to 49%, and 42% of Americans oppose it.\27\ The botched 
execution of Clayton Lockett by Oklahoma officials in 2014 may 
have caused many to reconsider their support of the death 
penalty.\28\ The problems revealed by Mr. Lockett's execution 
led a bipartisan, blue ribbon Commission in Oklahoma to 
recently recommend that the state continue its present 
moratorium on executions due to concerns about the legality of 
the execution process, as well as myriad other problems 
revealed about Oklahoma's administration of the death 
penalty.\29\
---------------------------------------------------------------------------
    \27\Baxter Oliphant, Support for Death Penalty Lowest in More than 
Four Decades, Pew Research Ctr., Sept. 29, 2016, http://
www.pewresearch.org/fact-tank/2016/09/29/support-for-death-penalty-
lowest-in-more-than-four-decades/.
    \28\Greg Botelho and Dana Ford, Oklahoma stops execution after 
botching drug delivery, CNN, Oct. 9, 2014, http://www.cnn.com/2014/04/
29/us/oklahoma-botched-execution/.
    \29\See Report of the Oklahoma Death Penalty Review Commission, 
March 2017, available at http://okdeathpenaltyreview.org/.
---------------------------------------------------------------------------
    Similarly, Arkansas' unprecedented rush to execute several 
men in April 2017 over the course of one week predictably 
resulted in signs of inhumane and tortuous executions. An 
Associated Press reporter who witnessed the execution of 
Kenneth Williams--the last of four inmates killed in the span 
of seven days--reported that Mr. Williams ```lurched' 15 times 
in quick succession, followed by five slower lurches, three 
minutes after . . . midazolam was introduced.''\30\ The 
reporter also stated that ``Williams could be heard after the 
microphone to the death chamber was turned off.''\31\
---------------------------------------------------------------------------
    \30\Rob Burgess, Arkansas rushes 4 executions in just 7 days, May 
3, 2017, http://www.kokomotribune.com/opinion/house_of_burgess/house-
of-burgess-arkansas-rushes-executions-in-just-days/article_2e45ccde-
2f69-11e7-b93a-4f2bca9c1d14.html.
    \31\Id.
---------------------------------------------------------------------------
    Without a hearing on the bill, the Committee was unable to 
consider the evidence of the dramatic decline in the use of 
capital punishment across the country. In fact, by the end of 
2016, a majority of states had abandoned the death penalty in 
law or in practice. This data provides significant indication 
that there is little public safety utility in the expansion of 
the death penalty. For example:
           Death sentences have reached a 40-year low. 
        For example, Texas imposed just two new death sentences 
        in 2015 while during the 1990's, Texas routinely had 
        more than 30 new sentences per year and in 1999 they 
        had 48.
           Executions are at a 20 year low, and only a 
        handful of states have carried out an execution in the 
        last year: five states in 2016, six in 2015, and seven 
        in 2014.
           Four governors have declared moratoria and 
        halted executions in their states (Pennsylvania, 
        Oregon, Colorado, and Washington).
    Even in those jurisdictions with the death penalty, its use 
is extremely rare. Only 2% of counties are responsible for the 
majority of executions. Further, out of 3,143 counties 
nationwide, only 16 counties returned five or more death 
sentences in the six-year period between 2010 and 2015.

                               CONCLUSION

    We support measures that would actually protect our first 
responders, brave men and women who risk their lives every day 
to protect us. Unfortunately, H.R. 115 not only fails to do 
this, but would also exacerbate problems with the federal death 
penalty. Any consideration of the death penalty selection 
process implicates fundamental due process concerns\32\ and it 
is incumbent on the Committee to fully consider those concerns. 
However, H.R. 115 was considered for markup, and will now be 
rushed to the House Floor, without a single hearing and without 
the opportunity to consider amendments directly relevant to 
whether our system of imposing the death penalty is fair, just, 
and reliable. Providing duplicative protections to law 
enforcement or first responders simply cannot counter-balance 
our sincere concerns about this flawed legislation.
---------------------------------------------------------------------------
    \32\See Singleton v. Norris, 108 F.3d 872, 875 (8th Cir. 1997) 
(Heaney, J., concurring).
---------------------------------------------------------------------------
    Rather than advancing a bill that amounts to an empty 
gesture that is damaging at best, the Committee should focus on 
real reform measures that will protect law enforcement, first 
responders, and their communities. Over the years, well-
documented, unconstitutional policing practices in communities 
of color across the United States have eroded trust between 
these communities and the law enforcement officials sworn to 
protect them.\33\ We should be working to foster law 
enforcement reforms aimed at helping local jurisdictions meet 
their obligations to ensure law enforcement is acting in a 
constitutional manner instead of pursuing legislation, such as 
H.R. 115, that will sow seeds of division that ultimately 
undermine public safety.
---------------------------------------------------------------------------
    \33\See, e.g., U.S. Dep't of Justice Civil Rights Division, 
Investigation of the Baltimore City Police Department, Aug. 10, 2016, 
https://www.justice.gov/opa/file/883366/download.
---------------------------------------------------------------------------
    Accordingly, we dissent and urge our colleagues to join us 
in opposing H.R. 115.
                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Lieu.
                                   Ms. Jayapal.
                                   Mr. Raskin.

                                  [all]