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DEATH PENALTY REFORM ACT OF 2006

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 5040

MARCH 30, 2006

Serial No. 109–93

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

MICHAEL VOLKOV, Chief Counsel 

DAVID BRINK, Counsel 

CAROLINE LYNCH, Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

MARCH 30, 2006

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

WITNESSES 

Ms. Margaret P. Griffey, Chief of the Capital Case Unit, Criminal Division, 

United States Department of Justice 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 8

Mr. Robert Steinbuch, Professor of Law, University of Arkansas 

Oral Testimony ..................................................................................................... 21

Prepared Statement ............................................................................................. 22

Mr. Kent Scheidegger, Legal Director and General Counsel, Criminal Justice 

Legal Foundation 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 26

Mr. David Bruck, Director of the Virginia Capital Case Clearinghouse and 

Clinical Professor of Law, Washington & Lee School of Law 

Oral Testimony ..................................................................................................... 27

Prepared Statement ............................................................................................. 29

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 61

Letter from Kent Scheidegger, Legal Director and General Counsel, Criminal 

Justice Legal Foundation to the Subcommittee ................................................ 63

‘‘Smoke and Mirrors on Race and the Death Penalty,’’ submitted by Kent 

Scheidegger, Legal Director and General Counsel, Criminal Justice Legal 

Foundation ............................................................................................................ 67

(1)

DEATH PENALTY REFORM ACT OF 2006

THURSDAY, MARCH 30, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 11:47 a.m., in 

Room 2141, Rayburn House Office Building, the Hoonorable Howard Coble (Chairman of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. 

This is a departure from our normal regular order. There’s a vote 

on the floor, and I am told there will be a subsequent vote imminently. And the Ranking Member, the distinguished gentleman 

from Virginia, I think Mr. Scott is on the floor now. If that bell 

does ring, I’m going to have to go. 

But in the interest of time, since we have to clear this building 

at 1:30 for another hearing, I want to go ahead and give my opening statement now. And then, when Mr. Scott comes, we will hear 

from him, and then we will hear from our panel. 

And I apologize to you all for that. But the best-laid plans of 

mice and men, you know, sometimes go awry. And today’s no exception. 

I welcome you all to this important hearing before the Subcommittee on Crime, Terrorism, and Homeland Security to examine H.R. 5040, the ‘‘Death Penalty Reform Act of 2006,’’ introduced 

by the distinguished gentleman from Texas, Mr. Gohmert. 

As I have said on previous occasions, the death penalty is the severest form of punishment in our country, and we must be vigilant 

in ensuring that it’s meted out against only the truly guilty. It is 

imperative that we implement common sense procedures to ensure 

proper and fair application of the death penalty. 

The Death Penalty Reform Act proposes a variety of procedural 

reforms to improve the Federal capital system. In response to the 

Supreme Court’s decision in Atkins v. Virginia, which prohibited 

the execution of a mentally retarded offender as unconstitutional, 

the bill implements procedures for the determination of whether a 

defendant is, in fact, mentally retarded. 

Although the Federal system prohibited such executions prior to 

Atkins, the Federal capital statutes did not have any specific statutes addressing how such a determination should be made or procedural rules for the handling of these issues. The bill prohibits 

capital punishment for mentally retarded defendants and contains 

specific notice of evidentiary procedures for handling such claims. 

2

The bill furthermore enhances the efficiency and fairness of capital sentencing proceedings by providing additional notice and preparation time and improving jury selection and retention procedures. 

I believe all these procedural reforms will improve the Federal 

death penalty system and provide adequate safeguards to ensure 

accurate and uniform application of our laws. I commend and 

thank Mr. Gohmert for his dedication and hard work on this critically important issue, and I look forward to hearing from today’s 

witnesses. 

And I think, for the moment, we will just suspend. You all rest 

easy, if you will. And I, again, apologize to you for this. It’s really 

no one’s fault. It’s just the way the system sometimes works, and 

we can’t control when these votes are called upon. 

So you all rest easy for the moment, and we will proceed, hopefully, imminently. Thank you. 

[Pause.] 

Mr. COBLE. Ladies and gentlemen, in the interest of time, if you 

would, the Subcommittee swears in all of our witnesses appearing 

before it. So, to save even more time, if you all would please rise 

and raise your respective right hands? 

[Witnesses sworn.] 

Mr. COBLE. Let the record—you may be seated, and let the 

record show that the witnesses all answered in the affirmative. 

And I thank you for that. So that’s a little bit more time saved. 

And I will return imminently. 

[Recess.] 

Mr. SCOTT. Mr. Coble is on the way back and asked me to give 

my statement. He indicated that he’s sworn in the witnesses. 

So I’d like to thank Mr. Chairman, and I’d like to thank you for 

holding the hearing on H.R. 5040, the ‘‘Death Penalty Reform Act 

of 2006.’’ I’m disappointed, however, that we’re considering yet another bill, this Congress, that expands the opportunities to seek the 

Federal death penalty. 

We recently expanded the death penalty applications in the USA 

PATRIOT Act renewal and the gangbusters bill and the court security bill, the sex offenders bill, and others. And here we go again, 

in a bill touted as a death penalty procedures bill, but it further 

expands the instances in which the death penalty can be sought. 

There’s still no credible evidence that the death penalty, particularly the Federal death penalty, deters murders or other crimes or 

otherwise promotes the general interests of the United States. Indeed, every time we expand the situations in which the death penalty can be applied, we restrict further our ability to extradite from 

other countries to this country terrorists and other killers of Americans. 

Moreover, there’s clear evidence that the Federal death penalty 

is disproportionately applied to African Americans and other minorities. And despite former Attorney General Reno’s departing decision to have the Department of Justice examine the disturbing 

prevalence of minorities among those selected for the death penalty 

prosecutions and sentenced to death, no comprehensive and scientific examination has been made. 

3

And although we passed last Congress the Innocence Protection 

Act, which enacted a set of standards to protect and support innocents in death penalty cases, we still have not provided the funding 

necessary to fully implement the law. 

While the impact of the law on the Federal death penalty is limited, the death penalty—Federal death penalty practice does and 

should serve as a model for the States. Thus, we should not be expanding the application of any death penalty provisions before we 

provide the funding necessary to fully protect and support innocents. 

This bill is problematic, and it’s proposed procedural reforms as 

well. One cynical evaluation of the bill suggested that it represents 

DOJ’s attempt to legislate victory on every point on which it has 

lost in court in recent years. 

By adding more aggravating factors to a long list already in the 

statute and removing one of the few existing mitigating factors, 

DOJ further stacks the deck in favor of finding something which 

will hand down an argument for the death penalty. 

Adding obstruction of justice aggravating factor in the way it is 

now worded would allow particularly broad application of an easily 

charged factor. We see from the current Moussaoui death penalty 

case over in Alexandria that the Department of Justice is willing 

to go to great lengths to argue for a death penalty where it wishes 

to do so. 

One reason for expanding opportunities to pursue the death penalty is simply to ensure the impaneling of more death eligible juries. Death eligible juries necessarily are more focused on and inclined toward more severe penalties and more likely to convict than 

other juries. 

So I’m concerned that the bill’s proposed structure—excuse me. 

I’m concerned with the bill’s proposal to structure procedures for 

the determination of whether a defendant is mentally retarded 

and, therefore, not subject to the death penalty, pursuant to the Atkins case. 

First, the bill narrowly structures the definition of ‘‘mental retardation,’’ requiring that all of several factors must be shown, or you 

can be put to death. And rather than have a pre-trial determination of whether a defendant is mentally retarded, the bill requires 

that a defendant be first tried by a death eligible jury and then 

found to be guilty and otherwise eligible for death. Then they 

would determine whether or not the defendant was mentally retarded. This virtually assures that a defendant’s mental illness is 

not a factor until the jury has made up its mind that the defendant 

should die. 

Further, I cannot believe—and I can’t believe that on the basis 

of fairness to the prosecution, we would consider a provision that 

turns the traditional burden of proof on its head. That’s what we 

would do if we would require a defendant to admit up front that 

he committed a crime under duress or extreme emotional distress 

in order to submit this as a mitigating factor during sentencing. 

Yet another difficulty with the bill is its proposal to impanel less 

than 12 jurors to re-sentence an offender where the first jury deadlocks. 

4

There can be no purpose for such drastic change in the time-honored criminal procedures other than to ensure that it would be 

easier to obtain the verdict of death. Opponents of this approach 

would certainly not be promoting it if they thought that death 

would be less likely. 

While I understand Department of Justice’s desire to win and its 

efforts to acquire more death penalties, I don’t understand why 

Congress should want to further stack the deck in favor of prosecution in this manner. 

Mr. Chairman, I can go on with other problems with the bill, but 

we’ll leave some—we’ll leave that to the witnesses to point out 

some of the pros and cons. And I appreciate you, again, holding 

this hearing. 

Mr. COBLE. I thank you, Mr. Scott. 

And again, the panelists and Members in the audience, I apologize for the delay. I want you all to hold Mr. Scott and me harmless for this. 

When the trains run on time, we take credit for that. When the 

trains are belated, we discharge that elsewhere. But this was—we 

did not—we can’t control when the time is called for votes. 

I want to reiterate what I said to you earlier. We must clear this 

room at 1:30 because of a subsequent hearing that is scheduled 

herewith. 

Let me introduce the witnesses. Our first witness is Ms. Margaret Griffey, chief of the Capital Case Unit, in the Criminal Division of DOJ. Prior to assuming this role, Ms. Griffey served for 5 

years as chief of the Capital Litigation Division at the Texas attorney general and as assistant attorney general in that division. 

She’s also argued two cases before the Supreme Court. 

Ms. Griffey received her J.D. from the University of Texas and 

a master’s degree from Stanford University. 

Our second witness is Mr. Robert Steinbuch, professor of law at 

the University of Arkansas at Little Rock. Professor Steinbuch has 

held numerous positions in Government, including counsel to the 

Senate Judiciary Committee, trial attorney for the Justice Department, and deputy senior counsel to the commissioner of the Internal Revenue Service. 

He earned his undergraduate and master’s degrees from the University of Pennsylvania and his J.D. from Columbia University. 

Professor, is the School of Law not at Fayetteville? 

Mr. STEINBUCH. There are two schools of law. One in Little Rock 

and then one in northwestern——

Mr. COBLE. Okay. I wasn’t sure about that. Thank you, sir. 

Mr. STEINBUCH. Sure. 

Mr. COBLE. Our third witness is Mr. Kent Scheidegger, legal director for the Criminal Justice Legal Foundation. Mr. Scheidegger 

has written over 100 briefs in cases in the United States Supreme 

Court. His articles on criminal and constitutional law have been 

published in law reviews, national legal publications, and congressional reports. 

Previously, Mr. Scheidegger served for 6 years in the United 

States Air Force as a nuclear research officer. He was awarded his 

undergraduate degree from New Mexico State University and a law 

degree from the University of the Pacific. 

5

Our final witness today is Mr. David Bruck, clinical professor of 

law at the Washington & Lee School of Law and director of the Virginia Capital Case Clearinghouse. Now, Professor, I know of at 

least two Members of our body up here who are W&L law grads, 

and perhaps more than those two. 

Currently, Professor Bruck serves as one of four part-time Federal death penalty resource counsel to the Federal defender system 

Nation wide. Previously, he served as a county and State public defender in South Carolina and was awarded his undergraduate degree from Harvard and his J.D. from the University of South Carolina at Columbia. 

Good to have you all with us, folks. We adhere to the 5-minute 

rule here. We are not totally inflexible about that, but when you 

see the amber light appear on the panel before you, that is your 

warning that you have 1 minute. 

And when the red light illuminates, the ice on which you are 

skating becomes ever so thin. So if you will try to wrap up within 

that 5 minutes, we would be appreciative. 

And Ms. Griffey, we’ll start with you. 

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

Ms. GRIFFEY. Mr. Chairman, Ranking Member Scott, and Members of the Subcommittee, thank you for the opportunity to appear 

before you today and for inviting the Department of Justice to testify about this issue of great importance. 

The department applauds Congress for passing the recent improvements to death penalty procedures as part of the PATRIOT 

Act reauthorization, and particularly the provisions combining the 

title 21 procedures with those in title 18. But I think we can all 

agree that there is more to be done in this area. 

It is our shared goal to ensure that the death penalty is administered in a fair and consistent manner across the country. In the department’s view, the Death Penalty Reform Act of 2006 addresses 

several outstanding issues that have arisen due to recent court decisions and the continuing evolution of the death penalty practice 

across the country. 

As we are all aware, certain court decisions have created the potential for either uncertainty about or the uneven application of 

death penalty procedures, and the department supports this effort 

to provide clarity and consistency in this critical area. 

There are few greater responsibilities of Congress or of the Department of Justice than ensuring that there is a Federal death 

penalty procedure in place that comports with all constitutional requirements, and we should act now to fulfill that responsibility. 

At the outset, however, I would like to respond to Mr. Bruck’s 

criticism of the length of time between the indictment of a capital 

case and a decision by the attorney general whether to seek the 

death penalty. I must say that I’m surprised that Mr. Bruck would 

rush that decision or have it made on less than full information. 

An indictment represents a grand jury’s determination that there 

exists probable cause to believe that the defendant committed the 

charged offense, hardly an adequate basis upon which to decide 

6

whether to seek the death penalty. The period between indictment 

and trial allows additional time for trial preparation, particularly 

for defense counsel who normally are the only—are only appointed 

following indictment. 

Following indictment, if the U.S. attorney is considering whether 

to seek the death penalty, he or she affords the defendant’s counsel 

the opportunity to present the case against seeking to the U.S. attorney. When the case is forwarded to the Department of Justice, 

if the Committee is considering recommending that the death penalty be sought or simply needs more factual development, the defendant will again be afforded the opportunity to present the case 

against seeking. 

Defense counsel routinely ask for extended periods to prepare 

their case, ranging from several months to a year. Again, I want 

to emphasize that the department considers the death penalty decisions to be among the most important, if not the most important 

decisions it undertakes. Nothing less than the full and careful review should precede a decision to seek the death penalty, and I am 

surprised that Mr. Bruck would have it otherwise. 

In Atkins v. Virginia, the Supreme Court held that the execution 

of the mentally retarded offenders violates the eighth amendment. 

Although the Federal capital sentencing scheme already prohibited 

the execution of mentally retarded offenders, it did not provide a 

procedure for determining whether a defendant’s mental disability 

is sufficiently severe to foreclose execution. 

The Death Penalty Reform Act of 2006 responds to the Supreme 

Court’s decision in Atkins by providing a procedure for a capital 

sentencing jury to determine whether a defendant’s mental retardation forecloses a death sentence. 

The legislation is consistent with all prevailing definitions of 

mental retardation. A determination of mental retardation would 

require the jury to find that, since some point in time prior to the 

age of 18, the defendant has had both an IQ of 70 or less and deficits in adaptive reasoning. The statute incorporates the limitations 

in adaptive functioning identified by the Supreme Court in Atkins. 

Mr. Bruck, however, would have us substitute the limitations in 

adaptive functioning, including in clinical definitions. Those definitions reflect a behavioral focus of diagnosticians, which is to identify an individual’s need for services and support. 

In contrast, the focus of a mental retardation inquiry in the capital sentencing context is on the defendant’s culpability. The diminished capacities identified by the Supreme Court reflect characteristics that, in the court’s view, render a defendant less culpable. 

It must be recognized that a criminal defendant may have poor 

home living skills, engage little in community activities, and exhibit poor self-care skills for reasons independent of his mental capacity. There is no reason to exclude from a certain level of criminal responsibility someone who exhibits poor socialization skills if 

he or she is capable of running a complex criminal enterprise. 

The Death Penalty Reform Act would also establish a punishment phase procedure for determining mental retardation. Mr. 

Bruck also takes issue with this provision, claiming that it’s fair to 

the defendant and less wasteful of resources for the determination 

to be made pre-trial. 

7

What he fails to recognize in his written testimony, but what I’m 

sure he would assert were he representing a defendant for whom 

there had been a pre-trial determination that the defendant was 

not mentally retarded, is that the Constitution likely requires that 

such a defendant be afforded an opportunity for the jury to determine his mental retardation. 

In other words, Mr. Bruck seeks to have two bites of the apple 

or wants to have each defendant afforded two opportunities to establish his mental retardation. Either that, or what he proposes is 

most assuredly a constitutionally infirm procedure by resolving the 

issue pre-trial. 

I look forward to questions later. Thank you. 

[The prepared statement of Ms. Griffey follows:]

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PREPARED STATEMENT OF MARGARET P. GRIFFEY


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Mr. COBLE. I thank you, Ms. Griffey. 

And the Chair will note that Professor Bruck smiled very warmly. [Laughter.] 

So, if facial responses are any indication, Ms. Griffey, I think the 

Professor will at least disagree agreeably. 

Thank you, Ms. Griffey. 

I don’t mean to put words in your mouth, Professor. We’ll hear 

from you subsequently. 

Mr. Steinbuch, good to have you with us. 

And thank you, Ms. Griffey. 

TESTIMONY OF ROBERT STEINBUCH, PROFESSOR OF LAW, 

UNIVERSITY OF ARKANSAS 

Mr. STEINBUCH. Thank you, Mr. Chairman, Mr. Ranking Member. It’s an honor and a pleasure to be here. 

I just want to touch on three parts of this bill. First, dealing with 

the interference with the sound administration of justice. It’s imperative that we have statutory aggravators that deal with this 

issue. We certainly need an aggravator for witness tampering. We 

certainly need an aggravator for jury tampering. And we need to 

adjust the aggravator regarding pecuniary gain so that killing a 

witness to hide the pecuniary gain satisfies that aggravator’s 

standards. 

The most important part of our justice system is to have legitimacy and continuity. These are interfered when criminals know 

that they can kill witnesses and get away with it. This is the highest order of statutory—should be the highest order of statutory aggravator, and its absence speaks loudly and its correction is needed. 

Secondly, in the existing statutory scheme, the firearm aggravator needs to be adjusted. Currently, it is applied inconsistently. 

There is an anomaly in the legislation that allows it to be applied 

in certain death penalty cases, yet not in others. There doesn’t 

seem to be any rational—rationale, excuse me, for this. And that 

needs to be made—that needs to be corrected. 

Finally, I would like to talk about qualifying death penalty juries. Some case law has developed where it has been suggested 

that death qualifying juries can take place after the liability phase 

of the trial. Supreme Court precedent has long well defined the 

boundaries of jury qualification in death penalty cases. Jurors may 

not be hanging juries, and jurors must be willing to impose the legally mandated sentence if appropriate. 

Failing to qualify a jury beforehand makes the system inefficient. 

Why would we not want to qualify a jury in the beginning of a trial 

regarding death penalty? Well, some have suggested that jurors 

who would never vote for the ultimate sentence are also less likely 

to convict defendants. We can draw two possible conclusions from 

this. 

One, perhaps anti-death penalty advocates might be trying to circumvent the death penalty through increased acquittals. This, 

clearly, is inappropriate. So this does not serve as an adequate justification for not death qualifying juries at the beginning of a trial. 

22

Some suggest that the greater statistical likelihood of conviction 

by a death qualified jury demonstrates an anti-defendant bias. I 

suggest otherwise. I believe that this is an improper conclusion. 

This statistical difference, if it exists—and it may, indeed, exist—

is not surprising. Jurors unwilling to apply the law to sentencing 

should equally be expected not to apply the law properly during the 

liability phase of a trial. 

Accordingly, this bill corrects the three infirmities that I’ve discussed, and I support it. 

Thank you. 

[The prepared statement of Mr. Steinbuch follows:]

PREPARED STATEMENT OF ROBERT STEINBUCH

Mr. Chairman, thank you for inviting me to testify before the United States 

House of Representatives Committee on the Judiciary on these important issues of 

criminal law. I would like to discuss a few critical substantive issues that are of concern. 

I. INTERFERING WITH THE SOUND ADMINISTRATION OF JUSTICE

In order for our justice system to work effectively and with legitimacy, deliberate 

wrongdoing to procure the unavailability of a witness or other participant in the judicial and law-enforcement system must not be tolerated. Such behavior, as the 

United States Court of Appeals for the Second Circuit has said, ‘‘strikes at the heart 

of the system of justice itself.’’ United States v. Mastrangelo, 693 F.2d 269, 273 (2d 

Cir. 1982), cert. denied, 467 U.S. 1204 (1984). As such, tampering with, or retaliating against, a witness, victim, or an informant, resulting in death should be the 

archetypal statutory aggravating factor. The murder of a law enforcement informant, or a witness or cooperator in a federal or state prosecution because of his/her 

status as such is not only abhorrent in and of itself, but sends the message to criminals that sufficient wrongdoing could allow them to escape punishment. Similarly, 

the murder of a jury member or a jury member’s family creates an incredible 

chilling effect on the willingness of honest citizens to perform their civic duty in the 

most important cases before our courts. 

The potential beneficial outcome in the eyes of criminals of avoiding criminal liability by killing witnesses and other relevant actors in the legal system creates a 

positive incentive for criminals to pursue this risky and socially devastating behavior. In order to create a balancing disincentive for such behavior, the costs to criminals must be significant. Because of the flagrant nature of these offenses, and the 

heightened interest of the government in deterring such action, adding such behavior to the category of the statutory aggravating factors is indeed appropriate and 

modest. The very same rationale led to the recent change in the Federal Rules of 

Evidence to permit the admission of hearsay statements because the witness was 

made unavailable as a result of this type of criminal wrongdoing. FRE 804(b)(6); see 

also United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996), cert. denied, 519 U.S. 

1118 (1997). Criminals must be sent the message that interfering with the judicial 

system with violence will result in greater punishment, not less. The proposed statutory amendments addressing this concern are well needed and appropriate. 

Moreover, for the very same reasons, the proposed statutory amendment regarding the pecuniary gain aggravator is well needed. Currently, section 3592(c)(8) provides that the pecuniary gain aggravator exists when ‘‘[t]he defendant committed 

the offense as consideration for the receipt, or in the expectation of receipt, of anything of pecuniary value.’’ 18 U.S.C. § 3592(c)(8). Courts have interpreted this in a 

manner that precludes the government from proving this factor in cases where the 

murder is committed after the pecuniary value has been received. 

In United States v. Bernard, 299 F.3d 467 (5th Cir. 2002), defendant gang members drove around in search of potential carjacking victims, planning to, among 

other things, acquire the victims Personal Identification Number (‘‘PIN’’) for Automatic Teller Machine (‘‘ATM’’) transactions. The gang members eventually ended up 

at a local convenience store where they encountered two youth ministers from Iowa. 

After successfully soliciting a ride, the gang members forced the couple at gunpoint 

to drive to an isolated location, where they robbed the couple of wallets and jewelry, 

acquired the couple’s ATM PIN, and then forced the couple into the trunk of the 

car. The gang members then attempted to withdraw money from the ATM, drove 

the couple to an isolated spot, shot them in the head and burned the car. The court 

23

held that evidence in the case was insufficient to support the pecuniary gain aggravator because ‘‘the application of the pecuniary gain aggravating factor is limited 

to situations where pecuniary gain is expected to follow as a direct result of the 

[murder].’’ Id. at 483 (quoting United States v. Chanthadara, 230 F.3d 1237, 1263 

(10th Cir. 2000). The court reasoned that the motivation for the robbery was pecuniary gain while the motivation for the murder, in contrast, was to prevent the robbery from being reported. Id. While this seems accurate, the latter motivation is by 

far the more insidious. It demonstrates not only nefarious criminal behavior but because it is a manifestation of an attempt to manipulate our system of justice to conceal the former to avoid criminal liability. The latter behavior is manifestly more 

egregious, not less. As such, it must have greater, or at the minimum, equivalent, 

negative consequences relative to the former. The interpretation of the pecuniary 

gain aggravator demonstrated in Bernard, unfortunately, draws completely the opposite conclusion. 

To illustrate the perverse outcome under existing caselaw, we need only compare 

Bernard with United States v. Barnette, 390 F.3d 775 (4th Cir. 2004). In Barnette, the defendant sought to commit a carjacking in order to secure transportation from 

Charlotte, N.C. to Roanoke, VA for the purposes of killing his estranged exgirlfriend. The defendant hid in the bushes at a road intersection, waited for a car 

to stop, walked up to the window with a sawed-off shot gun, forced the driver from 

the vehicle, shot and killed the driver on the side of the road, and left with the vehicle. Id. at 781. The Fourth Circuit held that the pecuniary gain aggravator was applicable because the defendant committed the murder in order to gain the transportation. Id. at 785. In comparing the criminal conduct in Barnette with that in Bernard, the greater culpability, in fact, rests with the Defendant in Bernard. Yet, the 

aggravator was applied only in Barnette. In Bernard, the attack is equally upon society and the victim. In Barnette, Society is undoubtedly greatly impacted, but derivatively from the victim. The courts’ approach needs to be corrected. 

II. FIREARM AGGRAVATOR

Current law provides another anomaly by barring the government from proving 

the firearm aggravating factor in cases where the death sentence is sought based 

on the commission of a crime of violence or drug trafficking crime while carrying 

or possessing a firearm that causes death. In seeking the death sentence for such 

a crime, the government is barred from proving as an aggravating factor that ‘‘the 

defendant has previously been convicted of a Federal or State offense punishable by 

a term or imprisonment of more than 1 year, involving the use or attempted or 

threatened use of a firearm against another person.’’ 18 U.S.C. § 3592(c)(2). However, if a defendant commits an offense punishable by death under 21 U.S.C. 

§ 848(e), for example, murder while working in furtherance of a continuing criminal 

enterprise, the firearm aggravator is available. 

Thus, under current law, if a defendant previously committed a violent crime 

using a firearm and served a two-year term in state prison and after release commits an offense punishable by death under section 924(c) or (j), he will not be subject to the firearm aggravator. But, if a defendant previously committed a violent 

crime using a firearm and served a two-year term in state prison and after release 

commits an offense punishable by death under 21 U.S.C. § 848(e), the firearm aggravator is applicable. If both defendants have satisfied the capital eligibility factors 

of age and intent, it is unclear why the previous state firearm conviction, under 

3592(c)(2), can be used to prove a statutory aggravating factor in one case but not 

the other. Both have committed a capital eligible crime, and both have a similar 

previous criminal conviction. The purpose of this restriction is unclear and its application is uneven. It also seems to cut against the policy of deterring the use of firearms in conjunction with violent criminal behavior. This anomaly needs to be 

rationalized. 

III. JURY QUALIFICATION

In United States v. Green, 407 F.3d 434, 444 (1st Cir. 2005), the First Circuit refused to issue an opinion regarding the district court’s practice of delaying death 

qualification of the jury until after the jury had found the defendant guilty of a capital crime. In its opinion, the district court reasoned that ‘‘[i]f death-qualified jurors 

can be found among the jurors from the guilt phase, the terms of the statute [under 

§ 3593(b)(1)] will be followed. If none can be found, the jurors will be discharged for 

‘‘good cause’’ shown, and the statute will still be followed [under § 3593(b)(2)(C)].’’ 

United States v. Green, 324 F.Supp.2d 311, 331 (D.Mass. 2004). This interpretation 

of § 3593 is contrary to the intent of the statute and misapplies the ‘‘good cause’’ 

provision. 

24

Section 3593(b) provides that, in general, the sentencing hearing should be conducted before the jury that determined the defendant’s guilt, unless one of four exceptions exist that justify impaneling a new jury. See 18 U.S.C. § 3593(b)(1)–(2). One 

of the four exceptions relates to situations where the guilt-phase jury has been discharged for ‘‘good cause.’’ 18 U.S.C. § 3593(b)(2)(C). The intent behind the ‘‘good 

cause’’ provision centers on addressing situations where an event or circumstance, 

which occurs after the defendant’s guilt has been determined, renders the guiltphase jury unable to serve during the penalty phase. See Jones v. United States, 

527 U.S. 373, 418 (Ginsburg, J., dissenting) (opining that ‘‘[d]ischarge for ‘good 

cause’ under § 3593(b)(2)(C) . . . is most reasonably read to cover guilt-phase . . . 

juror disqualification due to, e.g., exposure to prejudicial extrinsic information or illness’’); see also Green, 407 F.3d at 441. When combined with the structure of the 

statute, this supports a conclusion that Congress intended, in § 3593(b), a default 

rule—that the jury that determined the defendant’s guilt also determines the sentence, barring some unavoidable circumstance making it impracticable or unfair. See 

Green, 407 F.3d at 441–442. Thus, the trial jury should be treated as the sentencing 

jury, and, as such, the trial jury must be qualified at the outset of the trial to be 

able to fulfill its obligations in the sentencing phase. In addition to constituting a 

strained reading of § 3593, a contrary an approach, as suggested by the trial court 

in Green, is illogical and wastes time and resources. 

Indeed, pre-qualifying juries is consistent with well-established Supreme Court 

precedent. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court set forth the 

important boundaries for juries in death-penalty cases. As such, the Court properly 

held that the 6th Amendment protects a defendant from a predetermined ‘‘hanging 

jury.’’ Equally, the Court in Witherspoon held that prospective jurors are excludable 

if they would vote against the death penalty irrespective of guilt and culpability, or 

their personal views on the death penalty prevented them from making an unbiased 

decision regarding guilt. Thus, prospective jurors in death-penalty cases, said the 

Court, should fit within the extremes and be appropriately open to fairly evaluating 

the facts and sentencing the defendant pursuant to the controlling law, if found 

guilty. Witherspoon remains good law and has been reaffirmed in Adams v. Texas, 

448 U.S. 38 (1980). In Wainwright v. Witt, 469 U.S. 412 (1985) and Lockhart v. 

McCree, 476 U.S. 162 (1986), then Chief Justice Rehnquist further refined the previous caselaw on qualifying juries for death-penalty trials. And, in Morgan v. Illinois, 504 U.S. 719 (1992), the Supreme Court provided the same protection on the 

opposite end of the spectrum, by reaffirming the notion that jurors who would automatically vote for the death penalty irrespective of the facts are equally as objectionable. These cases clearly demonstrate the appropriateness and Constitutional validity of qualifying juries prior to trial. The qualification of the jury on the death penalty should occur at the outset of the capital trial and the aberrant caselaw needs 

correcting. 

Mr. Chairman, thank you for considering my remarks and I remain available to 

respond to any questions.

Mr. COBLE. Professor, you may have established a world record. 

You beat the red light by about a minute. I don’t think that’s ever 

happened. 

Mr. STEINBUCH. I figure we could average it out. 

Mr. COBLE. We will award you the gold medal. 

Mr. STEINBUCH. Thank you. 

Mr. COBLE. Mr. Scheidegger, good to have you with us, sir. 

TESTIMONY OF KENT SCHEIDEGGER, LEGAL DIRECTOR AND 

GENERAL COUNSEL, CRIMINAL JUSTICE LEGAL FOUNDATION 

Mr. SCHEIDEGGER. Thank you, Mr. Chairman. Thank you, Mr. 

Ranking Member. 

I’m here today on behalf of the Criminal Justice Legal Foundation, which supports the rights of victims of crime and the lawabiding public to a fair and effective system of criminal justice. 

The Death Penalty Reform Act presently before the Committee 

would make a number of worthwhile changes in the Federal death 

penalty law. And in particular, the bill would make the pre-trial 

notice requirements fair. The bill would require the defendant to 

25

give notice in mitigating circumstances, just as the Government is 

required to give notice of aggravating circumstances. 

However, the bill as presently drafted fails to correct and arguably codifies what I consider to be the most glaring defect in existing Federal death penalty law, which I call the ‘‘embassy bomber 

loophole.’’

In July 2001, followers of Osama bin Laden were tried and convicted for their role in the conspiracy to bomb America’s embassies 

in Africa. On the question of penalty, most of the jurors believed 

that death was the appropriate punishment. Yet three jurors held 

out for a life sentence, and the result was that the decision of the 

three trumped the decision of the nine. 

Now how can this be when the law clearly states the jury’s choice 

of sentence must be unanimous? Three to nine is not unanimous. 

In the guilt phase of the trial, everyone understands unanimous 

means unanimous one way or the other. If a jury deadlocks at 11 

for guilt and 1 for acquittal, the judge does not enter a verdict of 

acquittal. That would be preposterous. 

The jury must deliberate until it is unanimous, and if the jury 

is truly deadlocked, the judge declares a mistrial and impanels a 

new jury. That is how the penalty phase also works in California 

and, in my opinion, what the Federal statute provides if correctly 

interpreted. 

Unfortunately, the Federal death penalty law was poorly drafted 

in this regard and does not expressly state what happens when the 

jury cannot agree. In the case of Jones v. United States, the Supreme Court decided that this silence, combined with ambiguous 

language about lesser sentences, meant that the failure of the jury 

to agree results in a lesser sentence. 

This effective abrogation of the unanimity requirement makes 

the death penalty less fair and more arbitrary, and it prevents the 

jury from serving its function as representing the conscience of the 

community. 

In 1972, the Supreme Court declared the system of unbridled discretion in choosing between life in prison and death to be unconstitutional because it was arbitrary and capricious. The system of 

guided discretion that replaced it was not for the purpose of reducing the number of death sentence rendered. The purpose was to 

make capital sentencing more consistent and less arbitrary. 

It is important that the death penalty not be arbitrarily imposed, 

and it is just as important that it not be arbitrarily withheld. If one 

murderer gets the death penalty and another equally or greater 

culpable murderer gets a life sentence on the random chance that 

his jury includes a single juror who refuses to impose the punishment where it is warranted, that is arbitrary. 

A discretionary system can never be completely uniform, but we 

should strive to make it as evenhanded as possible. Requiring the 

jury to come to unanimous agreement one way or the other reduces 

the chance of arbitrariness in either direction. 

The jury is supposed to express the conscience of the community. 

To perform that function, the jury must be required to come to 

agreement. If a single juror knows that he can impose his will over 

the objection of the rest of the jury simply by holding out, then the 

jury fails to perform its representative function. 

26

So I ask the Congress to restore the requirement of a truly unanimous jury to the Federal capital punishment law. Doing so will 

make the death penalty more fair and evenhanded, and it will reduce the change of miscarriages of justice such as we saw in the 

embassy bomber case. 

Thank you. 

[The prepared statement of Mr. Scheidegger follows:]

PREPARED STATEMENT OF KENT SCHEIDEGGER

Mr. Chairman, thank you for the opportunity to address the committee today on 

this important legislation. I am here today on behalf of the Criminal Justice Legal 

Foundation, which has for the last twenty-four years fought for the right of victims 

of crime and the law-abiding public to a fair and effective system of criminal justice. 

In no other area of the law is this right more routinely violated than in capital punishment. 

The Death Penalty Reform Act of 2006 presently before the committee would 

make a number of worthwhile changes in the federal death penalty law. In particular, the bill will make the pretrial notice requirements fair. This bill will require 

the defendant to give notice of mitigating circumstances, just as the government is 

required to give notice of aggravating circumstances. However, the bill as presently 

drafted fails to correct and arguably codifies the most glaring defect in existing federal death penalty law, which I call the Embassy Bomber Loophole. 

In July 2001, followers of Osama bin Laden were tried and convicted for their role 

in the conspiracy to bomb America’s embassies in Africa. On the question of penalty, 

most of the jurors believed that death was the appropriate punishment. Yet three 

jurors held out for a life sentence, and the result was that the decision of the three 

trumped the decision of the nine, and the terrorists received a life sentence. 

How can this be, when the law clearly states that the jury’s choice of sentence 

must be unanimous? Three-to-nine is not unanimous. In the guilt phase of the trial, 

everyone understands that ‘‘unanimous’’ means unanimous one way or the other. If 

a jury deadlocks at eleven for guilt and one for acquittal, the judge does not enter 

a verdict of acquittal. That would be preposterous. The jury must deliberate until 

it is unanimous, and if the jury is truly deadlocked, the judge declares a mistrial 

and empanels a new jury. That is also how the penalty phase works in California, 

and, in my opinion, what the federal statute provides if correctly interpreted. 

Unfortunately, the federal death penalty law was poorly drafted in this regard 

and does not expressly state what happens when the jury cannot agree. In the case 

of Jones v. United States, 527 U.S. 373 (1999), the Supreme Court decided that this 

silence, combined with ambiguous language about lesser sentences, meant that the 

failure of the jury to agree results in a lesser sentence. This effective abrogation of 

the unanimity requirement makes the death penalty less fair and more arbitrary, 

and it prevents the jury from serving its function as representing the conscience of 

the community. 

In 1972, the Supreme Court declared the system of unbridled discretion in choosing between death and life in prison to be unconstitutional because it was arbitrary 

and capricious. The system of guided discretion that replaced it was not for the purpose of reducing the number of death sentences rendered. The purpose was to make 

capital sentencing more consistent and less arbitrary. It is important that the death 

penalty not be arbitrarily imposed, and it is just as important that it not be arbitrarily withheld. If one murderer gets the death penalty, and another, equally culpable murderer gets a life sentence on the random chance that his jury includes a 

single juror who refuses to impose the punishment where it was warranted, that 

is arbitrary. A discretionary system can never be completely uniform, but we should 

strive to make it as even-handed as possible. Requiring the jury to come to a unanimous agreeement one way or the other reduces the chance of arbitrariness in either 

direction. 

The jury is supposed to express the conscience of the community. To perform that 

function, the jury must be required to come to agreement. If a single juror knows 

that he can impose his will over the objection of the rest of the jury simply by holding out, then the jury fails to perform its representative function. 

I ask the Congress to restore the requirement of a truly unanimous jury to the 

federal capital punishment law. Doing so will make the death penalty more fair and 

evenhanded, and it will reduce the chance of miscarriages of justice such as we saw 

in the Embassy Bomber case. Thank you. 

27

SUGGESTED AMENDMENT TO FEDERAL DEATH PENALTY STATUTES

(a) Amend 18 U.S.C. § 3593(b)(2) to redesignate present paragraph (D) as paragraph (E) and insert a new paragraph (D): 

‘‘(D) the jury that determined defendant’s guilt was unable to reach unanimous 

agreement on the sentence;’’

(b) Amend 18 U.S.C. § 3593(e) to add at the end: 

‘‘If the jury is unable to agree unanimously on a sentence, the court shall impanel 

a new jury for retrial of the penalty hearing; provided, that if the government withdraws its notice under subsection (a), the court shall sentence the defendant is if 

the notice had not been given.’’

Mr. COBLE. Professor, the pressure is on you. These two guys 

both beat the red light. Now, Professor, Mr. Scott is my neighbor 

to the north in Virginia. Were you reared in South Carolina? 

Mr. BRUCK. No, I was there for 30 years, and I’ve now moved to 

Virginia. 

Mr. COBLE. Well, you’re my neighbor to the south. I must say 

this. I think Mr. Scott’s heard me say this before. It has been said 

that North Carolina is a valley of humility between two peaks of 

pride. I think that would be the exception over you and Mr. Scott. 

I don’t think you all are that proud. 

Good to have you with us, Mr. Bruck. 

TESTIMONY OF DAVID BRUCK, DIRECTOR OF THE VIRGINIA 

CAPITAL CASE CLEARINGHOUSE AND CLINICAL PROFESSOR 

OF LAW, WASHINGTON & LEE SCHOOL OF LAW 

Mr. BRUCK. Appreciate the invitation, Mr. Chairman. And I can 

certainly be agreeable to my friend Ms. Griffey, for whom I have 

great regard. However, I can’t promise that I will break any speed 

records since I seem to be the only witness who has noticed the 

many problems in this legislation today, and I’d like to try to touch 

a few of them in the time I have available. 

George Will memorably remarked not long ago that conservatives 

should always recall that the death penalty is a Government program, so skepticism is in order. The Federal death penalty is a 

large, bureaucratic, expensive, and exceptionally inefficient Government program, and a lot of skepticism is in order. 

I was a little surprised that Ms. Griffey was so concerned about 

my having observed that the average time under Attorney General 

Gonzalez between an indictment and a decision to seek the death 

penalty is now 23 months. 

I’m not at all suggesting that these decisions should be made 

fast, but we clearly have a problem. It has its roots in a decision 

that Attorney General Reno made that every single death eligible 

case should be reviewed by the attorney general him or herself, 

even when the U.S. attorney that actually has to try the case 

doesn’t want to seek the death penalty. 

This has produced tremendous backlog, tremendous delay. It has 

not produced any particular consistency. We have just as lopsided 

a racial picture on death row now as we did when this decision was 

made back in 1994. 

But I mention it because one of the provisions in this bill is a 

very strange response to a decade of complaints by Federal judges 

that DOJ takes too long to make these decisions, and it is too expensive. The cases are being held up at great cost to the taxpayers. 

28

And DOJ’s response, or at least the response of this legislation, 

has been to say, well, we can save money by eliminating the entitlement to two lawyers, one of whom is qualified to handle death 

penalty cases, until the attorney general months and months and 

even years after indictment finally makes a decision. 

Mr. Chairman, that entitlement was passed and signed into law 

by President George Washington on April 30, 1790. It was enacted 

by the first Congress that drafted the Bill of Rights. We are tinkering with things now that are fairly sacred to our system of Government and our sense of due process in this country. 

I cite that not because it is the most serious problem with this 

bill, although it is a problem, but as a reminder that the devil is 

in the details in these matters, and we need to proceed with extreme caution. 

Some more details. The mental retardation procedures. There are 

none in Federal law right now. There may be a need for them, but 

the procedures and the definition that is proposed in this bill is so 

far from being constitutional that it will move the Federal Government from having been a leader in the development of protections 

for people with mental retardation to a retrograde outlier whose 

statute would be struck down by the Supreme Court. 

The definition of mental retardation is not a definition at all, but 

actually, a series of some of the reasons why the Supreme Court 

said that people with mental retardation can’t get the death penalty. And this statute, if it were enacted, would require the jury, 

basically, to reconsider what the Supreme Court did on a case-bycase basis and to do it in the most unfair possible way after all the 

reasons to impose the death penalty have been set before the jury 

and before any of the reasons not to impose it have been heard by 

the jury. 

I’d be more than happy to work with staff and to provide any 

help that the—that we can, based on all the years of observation 

in the trenches in these cases about how this system ought to 

work. I’m not at all just saying let’s do away with this proposal and 

be done with it. But clearly, there are some very serious problems. 

There are devils in these details that really need—need to be 

looked at. 

The—there is reform that could well be undertaken with regard 

to the Federal death penalty. I’ve mentioned one, which is to restore that things ought to be done again the way they were done 

in the first Bush administration, which is when a Federal prosecutor that’s there with the evidence doesn’t want to seek the death 

penalty, that’s the end of it. They don’t need permission from 

Washington. 

When that change was made, Attorney General Ashcroft 43 

times told local prosecutors who didn’t want to seek the death penalty that they had to seek the death penalty. His success rate in 

those cases was 8 percent. In other words, the system spun its 

wheels at a cost of millions of dollars and produced almost no additional death sentences and did not improve the fairness of the system. 

I could go on if I had more time, which I don’t. But I hope I’ve 

made the point that this is something that needs a very, very careful look. 

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[The prepared statement of Mr. Bruck follows:]

PREPARED STATEMENT OF DAVID I. BRUCK


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Mr. COBLE. Well, in the spirit of equity, if you wanted—in view 

of the generosity of your two predecessors, if you want another 

minute, Mr. Bruck, you may have it. 

Mr. BRUCK. I’d much rather answer questions that the Committee has. I think that might be more helpful, Mr. Chairman. 

Mr. COBLE. Yes. I was hoping that the gentleman from Texas 

would be here, the primary sponsor, and I’m told he’s on his way. 

So we’ll get a chance to hear from him as well. 

Now, ladies and gentlemen, we impose the 5-minute rule against 

ourselves as well. So I will begin the questioning, Ms. Griffey, with 

you. 

Why, Ms. Griffey, are procedural guidelines for determining mental retardation needed in the light of Atkins and the existing prohibition on executing mentally retarded defendants? 

Ms. GRIFFEY. They’re needed because although the Federal statute precluded the execution of the mentally retarded, there were no 

procedures in place. And while the mental retardation issue had 

been addressed on an ad hoc basis, but through a variety of mechanisms—most typically a pre-trial determination by district courts 

when they hit the issue—it is our best understanding of the constitutional requirements that the determination, as I indicated in 

my earlier testimony, must be made or at least the defendant has 

the right to have the determination be made by the jury. 

So that is why we—with the constitutionalization of the mental 

retardation issue, we really do need procedures that conform with 

the Constitution. 

Mr. COBLE. Mr. Steinbuch, you touched on this, but I want to 

give you a chance to expand on it. Why is the 924(c) exception from 

the firearms aggravator unfair? 

Mr. STEINBUCH. It just doesn’t make any sense, Mr. Chairman. 

There is a firearms aggravator for other death penalty qualifying 

crimes. But for some reason, 924(c) has an exception where the 

firearm aggravator may not be applied. 

Now if we don’t want firearms to be an aggravator for the death 

penalty, then we should eliminate it. But if we want firearms, as 

I think, indeed, most on both sides of the aisle want, then we 

should have it for all death qualifying crimes. 

Mr. COBLE. Mr. Scheidegger, in your testimony, you mentioned 

that provisions of the bill ‘‘will make pre-trial notice requirements 

fair.’’ Explain in a little more detail, if you will, how this will 

achieve fairness, and how might these provisions impact the treatment of crime victims? 

Mr. SCHEIDEGGER. Well, I think that a fact-finding procedure operates better when both sides have notice of what the procedure is 

going to be about and have a chance to prepare a rebuttal to the 

other side’s case. 

And I think that a requirement that each side share with the 

other what factors it’s going to put forward as aggravating or mitigating will produce a more reliable and a better truth-seeking function in the penalty phase of the trial. 

Mr. COBLE. Professor Bruck, now here’s the chance for you to 

agree/disagree, I believe, because I know you and Ms. Griffey are 

not in agreement on this. Tell me again—and again, you touched 

on this, Professor—how does the provision requiring pre-trial notice 

49

by the defendant of mitigation circumstances or mental retardation 

violate the fifth amendment? 

Mr. BRUCK. Mental retardation, it would not. And in fact, existing law, Congress and the Supreme Court just remanded rule 12.2 

of the Rules of Criminal Procedure just in December of 2002 to require notice of expert testimony on any mental health issue, including mental retardation. So, in a way, there’s really no need for a 

new notice provision on that. 

And clearly, there’s no reason—notice for MR. When mental retardation is advanced as a bar, there is nothing wrong with requiring notice. But the idea that every mitigating factor should be only 

admissible if there has been notice, there are 38 States with the—

38 jurisdictions with the death penalty in this country, and not one 

has a rule like that. And the reason is that many mitigating factors, not mental retardation, but many of the others, would require—in effect require the defendant to admit that he committed 

the crime. 

Mitigating factors, such as he acted—the defendant acted under 

duress in the commission of the murder, or he committed the murder while under the influence of mental or emotional disturbance. 

You can’t file notice of that as your mitigating factor, and this actually requires it be signed by the defendant, unless you admit you 

did the killing. 

And that’s why none of the 38 States have that requirement because that violates the fifth amendment. You haven’t been tried 

yet. It’s much too early. This is simply not a requirement. 

Mr. COBLE. Ms. Griffey, I’ll give you a chance to respond subsequently. But for the moment, I’m going to take a page from Mr. 

Steinbuch and Mr. Scheidegger’s book and recognize the gentleman 

from Virginia before my red light illuminates. 

Mr. SCOTT. Thank you, Mr. Chairman. 

There’s a prohibition against using sentiment as a consideration 

in applying the death penalty. Mr. Bruck, can you indicate what—

how you can do that if you’re allowing victim impact statements? 

Mr. BRUCK. Yes. There is a provision in this legislation to tell the 

jury to allow no influence of sympathy or sentiment or passion, 

prejudice, or any other arbitrary factor. There’s nothing wrong with 

an instruction that says not to be carried away by emotion, but this 

instruction is very different. 

It—and in particular, as I pointed out in my prepared remarks, 

it pushes the constitutional envelope. The whole point of mitigation 

is to try to show that even though a man committed murder, there 

are still reasons that he deserves some small amount of sympathy, 

enough to let him have life in prison rather than death. 

To tell the jury not to be influenced by any influence of sympathy 

violates that constitutional provision. Now this isn’t something that 

we can—we can follow or not if we choose. This is a constitutional 

requirement imposed in case after case by the United States Supreme Court, beginning with Woodson v. North Carolina in 1976 

and going straight on until today. 

So, again, the devil is in the details. There could be an argument, 

and perhaps the Department of Justice will win a 5–4 decision saying this pushes the envelope, but not too far. But why risk it? 

50

These are the kinds of things that really shouldn’t be—shouldn’t be 

trifled with. 

Mr. SCOTT. What about sympathy on behalf of the victim? If you 

have the witness—the victims parading before the jury, presumably eliciting emotional—an emotional response, how does that 

play? 

Mr. BRUCK. Well, there is something a little inconsistent about 

now that we have victims able to testify so broadly, the survivors, 

which is not something—I mean, I understand why it’s being done, 

why the Supreme Court allowed it. But then to turn around and 

say, ‘‘Oh, and don’t be influenced by sympathy.’’ It’s a little illogical. The why did we hear all that testimony if we’re not supposed 

to have any sympathy? 

The real point of an instruction not to be influenced at all by 

sympathy is to try to convey to the jury what prosecutors try to do 

naturally in their closing argument, which is to say to the jury, 

‘‘Don’t use your heart. Don’t be a human being. Don’t look at all 

aspects of this. Just be sort of a calculator, a machine.’’ And you 

know, total up the aggravators and mitigators and don’t use really 

human common sense in deciding what is, after all, a moral judgment, the Supreme Court has told us, these sorts of add-ons to 

this. 

You know, it’s true that the Justice Department has had relatively little luck in getting anybody sentenced to death. There are 

42 people on death row right now, and there have been 3 executions. But these little bells and whistles to try to grease the skids 

are not going to make any appreciable difference. All it’s going to 

do is put these statutes at some constitutional risk. 

Mr. SCOTT. Should lack of moral certainty of guilt be a mitigating factor? 

Mr. BRUCK. Yes, I think it should. And it probably already is, informally. It’s probably the oldest reason why juries have declined 

to seek the death penalty since there was—has been jury sentencing more than 100 years ago. 

If we’re going to—if we’re going to make some fixes in this bill, 

making that explicit, whether it’s constitutionally required or not—

good grief, we’ve seen enough innocent people being found on our 

Nation’s death row. President Clinton had to commute a sentence 

at the request of the attorney general’s office, someone who had exhausted all of his appeals because of doubt about his innocence, 

about his guilt. 

And of course, the jury ought to be able to consider whether it’s 

certain enough to convict, but not certain enough to execute. 

Mr. SCOTT. The obstruction of justice factor, do I understand 

the—I think what they’re trying to get at is that you’re killing the 

witness in that case. The way it’s worded——

Mr. BRUCK. Yes. 

Mr. SCOTT. What’s the problem with the wording of the case—

of that——

Mr. BRUCK. Well, I should say that I understand from majority 

staff that this is something that they already intend to correct. As 

it’s written now, this would—if somebody had threatened to hurt 

a witness 20 years ago, that would be an aggravating factor. And 

I think that’s not what they actually intended. 

51

This should be—if we’re going to add yet another aggravating 

factor, this should be very narrowly drawn. It should be made clear 

that it not only doesn’t apply to a threat 20 years ago, that it has 

to relate to the murder that they’re sentencing for. But it should 

also make clear that it doesn’t apply to everyone who might become 

a witness. It should only apply to someone whose motivation is to 

obstruct an ongoing prosecution. 

Otherwise, this will be the universal aggravator. Someone goes 

into a store with no premeditation, no advance planning, no prior 

record, and on and on and on, and shoots the clerk. And the Government could say, well, they probably shot the clerk because they 

were afraid the person would be a witness. Therefore, this aggravator applies. That is much too broad. 

Mr. SCOTT. Can I ask one additional question? 

Mr. COBLE. Without objection. 

Mr. SCOTT. Just a kind of a general statement is do we have evidence that a death eligible jury is more likely to convict? 

Mr. BRUCK. Yes. Absolutely. The Supreme Court has, by a vote 

of 6–3, said that it’s close enough for Government work and has allowed it. 

But there’s no doubt that juries that are picked, where the willingness to impose the death penalty is a requirement for serving 

on the jury, and that’s the way we do it now, is a jury that is more 

likely than a normal jury, a regular American jury, to find the defendant guilty in the first place. And that increases the risk of executing—of convicting and executing the innocent. 

Mr. COBLE. I thank the gentleman from Virginia. 

Now, as a general rule, ladies and gentlemen, we usually restrict 

opening statements to the Chairman and the Ranking Member. 

But the introducer of the bill is a Member of the Subcommittee. So, 

without objection, I’ll recognize the distinguished gentleman from 

Texas for an opening statement, symbol for dash, examination of 

the witnesses. 

The gentleman from Texas. 

Mr. GOHMERT. Thank you so much, Mr. Chairman. 

I really appreciate this opportunity, and I thank you for holding 

this hearing today on a bill that I think will clarify some of the 

areas of death penalty law that are currently in flux due to the 

things such as the Supreme Court decision in Atkins v. Virginia. 

Now, it falls on Congress to promulgate statutory provisions that 

are both fair to the accused and fair to the victim’s family, and this 

bill clarifies certain aggravating factors in death penalty cases, and 

it firms up notice requirements for both sides, the prosecution and 

the defense. 

Having presided over three death penalty cases during my tenure on the bench and having been court appointed as counsel for 

a convicted capital murderer it turns out should not have been convicted, and the job I did was able to reverse that case. That’s not 

a case of the system not working. It’s a case of a good lawyer helping the system to work, all humility aside. 

But it appears that in the areas of a sentencing, the various districts across the country have interpreted different provisions in 

different ways. And this bill seeks to bring consistency to the procVerDate 0ct 09 2002 10:30 May 23, 2006 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\033006\26769.000 HJUD1 PsN: DOUGA
52

ess and especially when the life of an individual is in the hands 

of our justice system. 

And I’d like to address a few things that Mr. Bruck had indicated 

with regard to a death eligible jury convicting in a higher percentage of cases. There are a number of factors at work there, I would 

point out. 

First of all, if you’ve been involved in death penalty prosecutions 

or death penalty cases, you know that prosecutors do not do that 

lightly. And because of the tremendous amount of expense incurred 

simply as a result of pursuing the death penalty, DAs, prosecutors 

don’t want to do it unless they have a very solid case. Otherwise, 

it wastes hundreds and hundreds of thousands of dollars. 

So I would indicate and I would submit humbly that, you know, 

there aren’t many of those capital murder cases that go to trial 

where they don’t feel good about the evidence as far as producing 

a conviction. Otherwise, they don’t go there. 

With regard to the sympathy factor, you know, in the case of 

Saffle v. Parks, the Supreme Court of this glorious United States 

had dealt with that issue, and they dealt with an instruction there 

that said you must avoid any influence of sympathy, sentiment, 

passion, prejudice, or other arbitrary factor when imposing sentence. 

And Mr. Bruck, you had referred to the fact that we should use 

human common sense, and as a former judge and chief justice and 

prosecutor and defense attorney, all, my experience is if you let 

sympathy either for the victim, which is often a problem, or sympathy for a defendant rule, then common sense often has to take 

a back seat, and that’s what we’re trying to avoid. 

And you’ve mentioned that we’ve found enough innocent people 

on death row, well, I had a client that was on death row. But the 

system worked, and he came off death row. 

So I think we have a good system. But because capital murder 

is such a serious matter, it does require continually tweaking. Unfortunately, we have a Supreme Court that not only can’t observe 

precedent, they can’t even observe their own precedent and often 

subject their opinions to the fleeting whims that appear more like 

something a child’s daydream would happen. 

And that makes it tough for those of us trying to follow the law 

when we were judges, prosecutors, defense attorneys, when you 

haven’t got any consistency on the Supreme Court. And you did 

rightfully mention about the threat provision. And you had said 

you understood that may be corrected in the future. I did want to 

let you know the original draft did not have that in there, and that 

I’d worked on and that the wonderful Judiciary staff had worked 

on. 

And apparently, DOJ made that submission without my approval. And as soon as I caught it, that was yanked out of there. 

So that has already been changed and corrected. Whereas, I don’t 

want something in the bill that I felt like going in is just not going 

to work. So you obviously noticed the same thing. 

But anyway, fortunately, with the scrutiny of staff and Committee and colleagues, I think we have come to a fairly good bill 

that will assist in this death penalty tweaking to satisfy the ongoing, evolving will of our wonderful, illustrious Supreme Court. 

53

So with that, I yield back—well, actually, my time is up. But Mr. 

Chairman, thank you for the hearing. Thank you for this opportunity. 

Mr. COBLE. You’re indeed welcome. And I say to you, Mr. 

Gohmert, we’ll be glad for you to hang around. We’re going to have 

a—we seem to have a pretty good handle on time. So I’m going to 

commence a second round. And Mr. Gohmert, I’ll be glad for you 

to remain for that if your time permits. 

Mr. Scott and I—I only have one more question, and I’m going 

to give Ms. Griffey a chance to respond and also the other two witnesses, if you feel so obliged, to Mr. Bruck’s—Professor Bruck’s 

comment regarding the fifth amendment. 

Ms. GRIFFEY. Yes. Thank you for that opportunity. 

The fifth amendment would not, under any circumstances, be 

violated by the requirement that they identified, the mitigating factors that the defendant will rely on. The fifth amendment is not 

violated unless a compelled incriminating statement is used 

against a defendant in a criminal case. 

It’s not violated. You—that’s—if you would like, I saw a frown up 

there. The Supreme Court case is Chavez v. Martinez. It’s a 2003 

case. Chavez v. Martinez, 538 U.S. 760. 

And of course, it’s been well established the requirement that 

you give a variety—notice of a variety of defenses doesn’t violate 

the fifth amendment. So just the fact that you have to provide notice does not violate the fifth amendment. 

Mr. COBLE. Gentlemen, either of you wanted to weigh in on this? 

Mr. STEINBUCH. Mr. Chairman, uncharacteristically, I have no 

comment on this issue. [Laughter.] 

Mr. COBLE. Mr. Scheidegger? 

Mr. SCHEIDEGGER. No, I think Ms. Griffey covered it. Thank you. 

Mr. COBLE. And Ms. Griffey, the Professor continues to smile. So 

I’ll—do you want to have a rebuttal on this, Professor? 

Mr. BRUCK. Well, I would note that—I mean, I’ve expressed my 

view generally. I would note that the statute as drafted actually requires that the defendant sign—sign his name to the mitigating 

factors which, on their face, admit to having committed the crime. 

I don’t—there are many ways to violate the fifth amendment, including allowing the Government to make derivative use, and then 

there would be all sorts of hearings about whether the Government 

benefitted unfairly pre-trial by having a written, signed notice from 

the defendant detailing the circumstances of the offense. 

There is a reason why none of the other 38 States have anything 

like this, and I would suggest that——

Mr. COBLE. Well, and I’ll give the distinguished gentlemen from 

Virginia and Texas, respectfully, a chance to respond as we go 

along. Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Just to follow up on that, Ms. Griffey, would sometimes to get 

the mitigating circumstances, factors, you have to essentially admit 

to the crime. Can that admission be used against the defendant in 

the prima facie case? 

Ms. GRIFFEY. No. 

Mr. SCOTT. No? 

Ms. GRIFFEY. No. 

54

Mr. SCOTT. Can the information—investigatory information that 

you glean from the fact that he’s admitted to it be used to help the 

investigation? 

Ms. GRIFFEY. The situation is no different than if the defendant 

filed a notice of an insanity defense. It, you know, nobody is going 

to stand—no prosecutor is going to stand up in the courtroom and 

say that defendant admitted that he was insane at the time, so he 

must be admitting that he did it. That’s just not something that’s 

going to happen. 

It would be a fifth amendment violation for sure to do that. But 

it is the fifth amendment that protects against such actions. It’s 

not—just merely requiring notice is not a fifth amendment violation. 

Mr. SCOTT. So the prosecution doesn’t get undue advantage by 

extorting an admission of guilt from the defendant? 

Ms. GRIFFEY. They’re not extorting an admission of guilt. They 

are requiring notice that they intend—that the defendant intends 

to rely on a factor such as duress or other factor. This is no different from insanity or any other sort of defense that the defendant 

raises. 

And what it does is it creates a level playing field. These cases 

are too important to be—to have the outcome be determined by 

surprise or hiding the ball. What we need to do is to have each side 

know what is going to be at issue and for each side to be able to 

test the evidence that is being put into—into the case. 

Mr. SCOTT. Well, a level playing field is inconsistent with the 

presumption of innocence. Is it not? 

Ms. GRIFFEY. Well, I don’t see that as being inconsistent at all. 

I don’t understand your question, I guess. 

Mr. SCOTT. Well, you go in a civil trial with a level playing field. 

All you’ve got to prove is preponderance of evidence. There’s no presumption one way or the other. 

In a criminal trial, you’re supposed to go in with an unlevel playing field. The prosecution has to prove the case. Not only prove it, 

but prove it beyond reasonable doubt. That’s not a level playing 

field. 

Ms. GRIFFEY. I think we’re talking apples and oranges here. 

There’s the—the burden of proof is one thing, and the due process 

and ability to establish the facts are another. 

Mr. SCOTT. Let me ask you a couple of background questions, if 

I can, Ms. Griffey? What is the present law, and what would the 

bill do for co-defendant—the penalty given to a co-defendant? 

What is the present law on the admissibility of that information, 

and what would this bill do to that present law? 

Ms. GRIFFEY. It would change it so that the only way in which 

you could have—the only way in which you could claim entitlement 

to the statutory mitigating factor would be if there was a defendant 

against whom the Government could have sought the death penalty, but declined to do it. 

You would not be entitled to a—the benefit of the statutory mitigating factor if, for example, a co-defendant was ineligible for the 

death penalty either because they had to be extradited from a foreign country or because he was underage and such. 

55

And I did see Mr. Bruck claimed that that would create a disparate situation in terms of the outcome. But, of course, the focus 

of the sentencing phase is on a defendant’s culpability. 

Mr. SCOTT. Well, just simply the present law and how this would 

change the present law? 

Ms. GRIFFEY. It would restrict the defendant’s ability to claim 

the benefit of statutory mitigation. I don’t think it would foreclose 

him claiming mitigation based on an ineligible co-defendant is nonstatutory mitigation. And there’s very little difference between the 

two. 

Mr. SCOTT. Another kind of background question. What is the 

law now, and what would the law be, if this bill were to pass, on 

people—on the felony murder, where the person—where the defendant is not the triggerman? Can a person who is not the 

triggerman be given the death penalty under Federal law, and 

would that change that? 

Ms. GRIFFEY. Yes, they can be given the death penalty under 

Federal law. The Federal law provides for at least four different 

threshold intent factors. And for example, in carrying out a robbery 

in which everybody goes in carrying a gun, only one person is the 

trigger person. Nonetheless, that person engaged in a dangerous 

act, knowing that it could create a risk of death to the victim. 

So, yes, a non-triggerman can—or you know, somebody can commission a murder and order it and not be the triggerman. 

Mr. SCOTT. What about the driver in the case? You drive the four 

or five people. One’s a driver. Four go in with guns. Can the driver 

get the death penalty along with the rest of them? 

Ms. GRIFFEY. That depends on what the driver knew. 

Mr. SCOTT. Mr. Bruck, do you have any other comments on that, 

on either question? 

Mr. BRUCK. On the last, second to last issue you put to Ms. 

Griffey about the equally culpable co-defendant. I was very struck 

that Ms. Griffey just now said it really doesn’t change anything 

that much because the jury can still consider other kinds of unfairness between co-defendants other than prosecutorial decision-making. 

And I was very surprised to hear her say that because it’s obvious that if this passes, Federal prosecutors will be arguing to 

judges not only that juries cannot consider anything that is not 

here because Congress ruled that out as a mitigating—as a mitigating factor, but also that the Government is entitled to a jury instruction. 

And that saying you may not consider the fact that there are 

three people equally guilty of this, but only this man is on trial for 

his life, and the others are going to get a lesser sentence. And 

moreover, I bet they’re going to move, and judges will say that lawyers for the defense can’t even argue that to the jury. 

Because when Congress speaks, judges listen. This is a very mischievous provision, and——

Mr. SCOTT. I don’t know if that’s good or bad. But go ahead. 

[Laughter.] 

Mr. BRUCK. I’m not going to respond to that, Mr. Scott. I just 

think that I was very surprised to hear the Justice Department say 

56

that it really won’t change the way these cases are tried, when I 

think we all know perfectly well that it will. 

Mr. COBLE. Professor, I’m not thoroughly convinced that they always listen to us, but that’s for another day. 

We’ve been joined by the distinguished gentleman from Ohio, Mr. 

Chabot. 

And the Chair recognizes the gentleman from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Just a couple of other things. Mr. Bruck raised a good issue 

about mitigation being signed by the defendant because if that 

were to go before the jury that, gee, he signed in advance basically 

tantamount to an admission, that would be a problem. And the 

fifth amendment protects that. 

To me, it’s a bit like in non-capital cases in Texas, a defendant 

has to make an election in writing before the case ever starts as 

to who will do the sentencing, either the judge or the jury. Well, 

that is not an admission of guilt. It’s just—and it’s never to be 

taken that way or anything of that nature. The fifth amendment 

protects that. 

But it’s just the procedure. You’ve got to sign that in advance, 

and if you don’t make a choice, then your choice is made for you. 

But that has to be done in advance, and the fifth amendment protects that being taken or used as somehow an admission against 

interest. 

So I see that in the same way, and I would certainly want to protect the fifth amendment rights. They work pretty well for us so 

far, and I want to see that continue. So I would expect that not to 

ever be an issue. 

As far as good questions, my friend Mr. Scott regarding whether 

someone not the triggerman might ever get the death penalty, and 

it’s a good issue, good question about whether a driver might ever 

get that. 

Of course, Ms. Griffey pointed out appropriately, it depends on 

what he knew. And if the evidence isn’t there to establish basically 

that he reasonably knew somebody was probably going to get 

killed, then the death penalty will not be appropriate there. 

You can’t just hail somebody off the street, and they don’t know 

you’re going to go in and probably kill somebody in robbing a place. 

There has to be much more evidence than that. 

And again, sympathy for the victims in the case is just not 

enough to ever give somebody the death penalty. So either sympathy for victims or the defendant or the defendant’s family is just 

not to be the issue, but whether there is evidence to support those 

things. 

I really do wish that when Congress spoke that all the judges listened because that’s—I think we need some people with hearing 

aides maybe on the court so that they do hear better. 

But I do appreciate the testimony of the witnesses. I appreciate 

your input. I appreciate what each of you do in order to protect the 

integrity of our system. That’s the only way we plod on forward. 

And thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman from Texas. 

And we need to vacate this room before too long, but I want to 

recognize the gentleman from Ohio, Mr. Chabot. 

57

Mr. CHABOT. Thank you, Mr. Chairman. 

I apologize for being somewhat late for this hearing, having had 

some conflicts. And I’ll be brief in my questions since we do have 

to vacate the room. 

It’s my understanding, if I could start with you, Mr. Bruck, that 

in your testimony you said that—I believe I’m correct in this—that 

there is no place in a trial for victims’ impact statements or victims’ testifying relative to the—to the situation, and you shouldn’t 

risk tainting the jury. Was that your testimony in general? 

Mr. BRUCK. No. No, it was a question of what should happen in 

what order. There’s no doubt that victims have—surviving members of victims’ families have a statutory right to testify and have 

the jury hear the grief that they have suffered and the impact of 

the crime on their lives. 

The question is whether the jury’s decision about mental retardation as a bar should happen before or after the jury has been subjected to what is undeniably, whichever side of the aisle you sit on, 

very, very emotionally wrenching and powerful testimony that 

hasn’t a thing in the world to do with whether the defendant is eligible for the death penalty by reason of mental retardation. 

It’s a question—there are many things that we do in a certain 

order in a criminal trial in order to protect the rights of the accused. And this is an example of something where the order, I 

think, is backwards in this legislation. 

And it’s the reason why most States implement Atkins v. Virginia by having the judge decide before trial and before millions of 

dollars or thousands and thousands of dollars are spent on a capital trial whether there’s any point going through all this or whether this man is ineligible because of mental retardation. That’s the 

proper order. 

And if you’re going to have the jury make the decision, which is 

not the better way to do it, at least have the jury do it when they 

can focus on that issue and not after they’ve heard all of the reasons why this guy ought to get the death penalty, mental retardation or no mental retardation, which is a very human reaction. 

Mr. CHABOT. Because I—it’s my belief that the role of the victim 

or the victim’s family is really critical and one of the things that 

too often does get short shrift. And it’s one of the reasons that I 

proposed a victims’ rights constitutional amendment. Our Chairman, former Chairman Henry Hyde had originally proposed it, and 

we took up the mantle when Henry left the Committee. 

And it’s always been my view that when you consider that the 

defendant’s rights are protected in our Constitution, and the victim’s rights, on the other hand, are sometimes statutorily protected, sometimes not. But if the two come into conflict, the Constitution’s going to trump the statute every time. And there are a 

number of instances where this has happened. 

We haven’t had the votes, quite frankly, to pass that constitutional amendment. We’ve only amended the Constitution 27 times 

in our Nation’s history, and the first 10 times, of course, were the 

Bill of Rights. So that leaves 17. 

And of those 17, 2 of those were—canceled each other out, Prohibition and then doing away with that. So it’s only 15 times. So we 

really don’t do that very often. 

58

That being the case, in order to protect victims, we did pass 

some, I think, helpful legislation which did emphasize more victims’ rights about a year or two ago. It didn’t go quite as far as 

a lot of us would have liked it to, but I think it’s a step in the right 

direction. 

So anything that we can do to elevate the rights of victims, 

whether it’s a death penalty case or not, I would certainly like to 

take the opportunity to do that. 

Would any of the other members of the panel like to comment 

relative to victims’ rights and the issue that Mr. Bruck just discussed? Have any input they’d like to give us on that? 

Mr. Scheidegger? 

Mr. SCHEIDEGGER. Yes, I’d like to address that, as far as the 

sympathy instruction goes. Because of the decision of Lockett v. 

Ohio, where the Supreme Court read into the Constitution a requirement to introduce practically anything the defendant wants, 

death penalty proceedings have become more emotional than necessary, and the victim impact statements are brought in, in part, 

to rebalance the scale. 

I would like to see less emotional testimony on both sides, but 

we’re kind of stuck with what we have. But I do think it is appropriate to instruct the jurors to make their decisions based on objective circumstances and not on sympathy, even though they are inclined to be sympathetic. 

The victim impact testimony is about the impact of the crime on 

not only the direct victim of the homicide, but on other people, and 

that is a circumstance for them to consider rationally. And I think 

an instruction to consider that not based on sympathy is an appropriate one for both sides of the aisle. 

Mr. CHABOT. Thank you very much, Mr. Chairman. I see that my 

time has expired here. 

Mr. COBLE. I thank the gentleman from Ohio. 

And folks, as I did not exhaust my full time, I want to put two 

brief questions. We’re going to have a vote here before long. 

Ms. Griffey, you mentioned in your testimony that the bill places 

the burden of proof—strike that. That the bill places the burden of 

proof for mental retardation determination upon the defendant. Is 

this type of burden shifting present in other areas of prosecution? 

Your mike’s not on. 

Ms. GRIFFEY. Yes, it is. In terms of a variety of defenses. We took 

a very, very careful look at all of the remotely applicable Supreme 

Court precedent, and we concluded that it was best to put the burden on the defendant by a preponderance of the evidence. 

Mr. COBLE. What would be some other instances where that occurs, the shifting? 

Ms. GRIFFEY. Well, the burden is on the defendant to prove insanity. The burden is on the defendant to prove a variety of defenses such as that. The burden—what is a constitutionally permissible burden depends on a variety of factors in terms of the analysis. 

Mr. COBLE. Right. I got you. 

Mr. Steinbuch, very briefly. In your testimony, you stressed the 

importance of pre-qualifying jurors for both the trial and sentencing phase. Why is this important, A? And B, do these types of 

59

questions on prospective jurors have the potential to create a bias 

toward guilt? 

Mr. STEINBUCH. Thank you, Mr. Chairman. 

This is important for our system to work efficiently, simply. We 

need to have juries that are willing to impose the law. If the law 

is the possibility of a death sentence, it makes no sense to have a 

jury that says ahead of time, we won’t follow the law. 

And as for the bias issue, as my co-panelist has said, there has 

been demonstrated some statistical difference between juries that 

are death qualified and juries that are not death qualified, although I would not characterize the latter as ‘‘normal juries.’’

And as I said previously, I suspect that the bias or, indeed, the 

statistical aberration is not a bias, but a reflection of the fact that 

the jurors are willing to follow the law, both in the sentencing 

phase and in the guilt phase. 

Mr. COBLE. Well, Professor, is pre-qualification used in other 

States? And if so, how many? Or do you know? 

Mr. STEINBUCH. You know, I’m probably not the best—the practitioners are probably the best to answer that question. I’m confident 

it is done, but I don’t know——

Mr. COBLE. You can get that to us. We’re going to leave the 

record open for 7 days anyway. 

Mr. Scott, any more questions? 

Mr. SCOTT. Yes. Mr. Steinbuch, as you death qualify the jury, 

just demographically, isn’t that also a nice way to reduce the number of African Americans on the jury? 

Mr. STEINBUCH. I have seen no statistics that demonstrate that 

one way or the other. So I can’t comment on that. 

Mr. SCOTT. Statistics show that death penalty is about 50 percent in the African-American community and about 80 percent everywhere else. Doesn’t that give you a better shot at back-door 

striking African Americans from the jury? 

Mr. STEINBUCH. Well, I mean, I think it gives you a better shot 

at back-door subverting the sentencing procedures enacted by Congress. So if those two factors coincide statistically, that may be the 

case, yes. 

Mr. SCOTT. Just another point, Mr. Chairman. 

When you do insanity and some of these other things that you 

have to kind of give notice on, you get in your case-in-chief with 

the burden beyond a reasonable doubt on the prosecution before 

you have to kind of help them out. This is a mitigating factor, 

which you ought to be able to wait until the end of the case after 

the conviction—after the conviction. Then you come up with the 

sentencing as a mitigating factor for the death penalty. There’s 

really no reason to require the defendant to put this in prior to the 

guilty verdict. 

And so, I think it is slightly different from some of the others because you actually get to argue about whether they’re insane or 

not. You don’t—and it’s part of the case-in-chief, which I think is 

different than what we’re talking about here. 

Mr. COBLE. Well, folks, we thank you all for your testimony 

today, and the Subcommittee appreciates your contribution. 

In order to ensure a full record and adequate consideration of 

this important issue—and it is, indeed, an important issue—the 

60

record will remain open for 7 days for additional submissions. Also, 

any written questions that a Member of the Subcommittee wants 

to submit should be submitted to you all within that 7-day timeframe. 

This concludes the legislative hearing on H.R. 5040, the ‘‘Death 

Penalty Reform Act of 2006.’’ Thank you all for your cooperation, 

and the Subcommittee stands adjourned. 

[Whereupon, at 1:12 p.m., the Subcommittee was adjourned.] 

(61)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman. And I want to thank you for holding this hearing on 

H.R. 5040, ‘‘The Death Penalty Reform Act of 2006.’’ I am disappointed, however, 

that we are considering yet another bill this Congress that expands opportunities 

to seek the federal death penalty. We recently expanded federal death penalty applications in the USA PATRIOT Act renewal, in the ‘‘Gangbusters’’ bill, the Court Security bill, the sex offender bill, and others. And here we go again, in a bill touted 

as a death penalty procedures bill, expanding further instances in which the death 

penalty can be sought. 

There is still no credible evidence that the death penalty, particularly the federal 

death penalty, deters murder or other crimes, or otherwise promotes the general interest of the U.S. Indeed, every time we expand the situations in which the federal 

death penalty can be applied, we restrict further our ability to extradite from other 

countries to this country terrorists and other killers of Americans. 

Moreover, there is clear evidence that the federal death penalty is disproportionately applied to African Americans and other minorities. And despite former Attorney General Reno’s departing decision to have the Department of Justice (DOJ) examine the ‘‘disturbing’’ prevalence of minorities among those selected for death penalty prosecutions and sentenced to death, no comprehensive and scientific examination has been made. 

And although we passed last Congress the Innocence Protection Act, which enacted a set of standards to protect and support innocence in death penalty cases, 

we still have not provided the funding necessary to fully implement the law. While 

the impact of the law on the federal death penalty is limited, federal death penalty 

practice does and should serve as a model for the states. Thus, we should not be 

expanding application of any death penalty provisions before we provide the funding 

necessary to fully protect and support innocence. 

This bill is problematic in its proposed procedural reforms as well. One cynical 

evaluation of the bill suggested that it represents DOJ’s attempt to legislate victory 

on every point on which it has lost in court in recent years. By adding more aggravating factors to the long list already in the statute, and removing one of the few 

existing mitigating factors, DOJ further stacks the deck in favor of finding something on which to hinge an argument for the death penalty. Adding the obstruction 

of justice aggravating factor in the way it is now worded would allow particularly 

broad application of an easily charged factor. We see from the current Moussaoui

death penalty case over in Alexandria that DOJ is willing to go to great lengths to 

argue for a death penalty where it wishes to. One reason for expanding opportunities to pursue the death penalty is simply to ensure the impaneling of more deatheligible juries. A death-eligible jury is necessarily more focused on, and inclined toward, more severe penalties than would a regular jury. 

I am also concerned with the bill’s proposal to structure procedures for determination of whether a defendant is mentally retarded and, therefore, not subject to the 

death penalty pursuant to the Atkins case. First, the bill narrowly structures the 

definition of mental retardation, requiring that all of several factors must be shown, 

or you can be put to death. And rather than have a pre-trial determination of 

whether the defendant is mentally retarded, the bill requires that the defendant be 

first tried by a death-eligible jury and when found guilty and otherwise eligible for 

death, then they could determine whether he is mentally retarded. This virtually 

assures that a defendant’s mental illness is not a factor until the jury has made 

up its mind that the defendant should die! 

62

Further, I cannot believe that ,on the basis of fairness to the prosecution, we 

would consider a provision that turns the traditional burden of proof on its head. 

That’s what we would do if we require a defendant to admit upfront that he committed the crime under duress or extreme emotional distress in order to submit this 

as mitigation during sentencing. 

Yet another difficulty with the bill is its proposal to impanel less than 12 jurors 

to re-sentence an offender where the first jury deadlocks. There can be no purpose 

for such a drastic change in time-honored criminal procedures other than to ensure 

that it is easier to obtain a verdict of death. Proponents of this approach would certainly not be promoting it if they thought it would make death a less likely verdict. 

While I can understand DOJ’s desire to win in its efforts to acquire more death penalties, I don’t understand why the Congress should want to further stack the deck 

in favor of the prosecution in this manner.. 

There are other significant problems with this bill, Mr. Chairman, but I will leave 

discussions of those problems to our witnesses and our questioning. Thank you.

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LETTER FROM KENT SCHEIDEGGER, LEGAL DIRECTOR AND GENERAL COUNSEL, 

CRIMINAL JUSTICE LEGAL FOUNDATION TO THE SUBCOMMITTEE


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‘‘SMOKE AND MIRRORS ON RACE AND THE DEATH PENALTY,’’ SUBMITTED BY KENT

SCHEIDEGGER, LEGAL DIRECTOR AND GENERAL COUNSEL, CRIMINAL JUSTICE LEGAL

FOUNDATION


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Æ


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