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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 696 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 696

            Entitled the ``Drug Kingpin Death Penalty Act''.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            January 27, 1993

 Mr. Solomon introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
            Entitled the ``Drug Kingpin Death Penalty Act''.

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

SEC   . SHORT TITLE.

    This Act may be cited as the ``Drug Kingpin Death Penalty Act''.

SEC.   . DEATH PENALTY AUTHORIZATIONS AND PROCEDURES.

    Title 18 of the United States Code is amended--
            (1) by adding the following new chapter after chapter 227:

                      ``CHAPTER 228--DEATH PENALTY

``Sec. 
``3591. Sentence of death.
``3592. Factors to be considered in determining whether a sentence of 
                            death is justified.
``3593. Special hearing to determine whether a sentence of death is 
                            justified.
``3594. Imposition of a sentence of death.
``3595. Review of a sentence of death.
``3596. Implementation of sentence of death.
``3597. Use of State facilities.
``3598. Appointment of counsel.
``3599. Collateral Attack on Judgment Imposing Sentence of Death.
``Sec. 3591. Sentence of death
    ``A defendant who has been found guilty of--
            ``(1) an offense referred to in section 408(c)(1) of the 
        Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as 
        part of a continuing criminal enterprise offense under the 
        conditions described in subsection (b) of that section;
            ``(2) an offense referred to in section 408(c)(1) of the 
        Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as 
        part of a continuing criminal enterprise offense under that 
        section, where the defendant is a principal administrator, 
        organizer or leader of such an enterprise, and the defendant, 
        in order to obstruct the investigation or prosecution of the 
        enterprise or an offense involved in the enterprise, attempts 
        to kill or knowingly directs, advises, authorizes, or assists 
        another to attempt to kill any public officer, juror, witness, 
        or member of the family or household of such a person; or
            ``(3) an offense constituting a felony violation of the 
        Controlled Substances Act (21 U.S.C. 801 et seq.), the 
        Controlled Substances Import and Export Act (21 U.S.C. 951 et 
        seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 
        1901 et seq.), where the defendant, intending to cause death or 
        acting with reckless disregard for human life, engages in such 
        a violation, and the death of another person results in the 
        course of the violation or from the use of the controlled 
        substance involved in the violation;
shall be sentenced to death if, after consideration of the factors set 
forth in section 3592 in the course of a hearing held pursuant to 
section 3593, it is determined that imposition of a sentence of death 
is justified: Provided, That no person may be sentenced to death who 
was less than eighteen years of age at the time of the offense: And 
provided further, That if a defendant described in section 3591 (b) or 
(c), is not sentenced to death, said defendant shall be sentenced to 
life in prison.
``Sec. 3592. Factors to be considered in determining whether a sentence 
              of death is justified
    ``(a) Mitigating Factors.--In determining whether a sentence of 
death is justified for an offense described in section 3591, the jury, 
or if there is no jury, the court, shall consider each of the following 
mitigating factors and determine which, if any, exist:
            ``(1) Mental capacity.--The defendant's mental capacity to 
        appreciate the wrongfulness of his conduct or to conform his 
        conduct to the requirements of law was significantly impaired, 
        regardless of whether the capacity was so impaired as to 
        constitute a defense to the charge.
            ``(2) Duress.--The defendant was under unusual and 
        substantial duress, regardless of whether the duress was of 
        such a degree as to constitute a defense to the charge.
            ``(3) Participation in offense minor.--The defendant is 
        punishable as a principal (as defined in section 2 of title 18 
        of the United States Code) in the offense, which was committed 
        by another, but the defendant's participation was relatively 
        minor, regardless of whether the participation was so minor as 
        to constitute a defense to the charge.
The jury, or if there is no jury, the court, shall consider whether any 
other aspect of the defendant's character or record or any other 
circumstance of the offense that the defendant may proffer as a 
mitigating factor exists.
    ``(b) Aggravating Factors.--In determining whether a sentence of 
death is justified for an offense described in section 3591, the jury, 
or if there is no jury, the court, shall consider each of the following 
aggravating factors and determine which, if any, exist--
            ``(1) Previous conviction of offense for which a sentence 
        of death or life imprisonment was authorized.--The defendant 
        has previously been convicted of another Federal or State 
        offense resulting in the death of a person, for which a 
        sentence of life imprisonment or death was authorized by 
        statute.
            ``(2) Previous convictions of violent offenses.--The 
        defendant has previously been convicted of two or more Federal 
        or State offenses, each punishable by a term of imprisonment of 
        more than one year, committed on different occasions, involving 
        the infliction of, or attempted infliction, serious bodily 
        injury or death upon another person.
            ``(3) Previous convictions of drug offenses.--The defendant 
        has previously been convicted of two or more Federal or State 
        offenses, each punishable by a term of imprisonment of more 
        than one year, committed on different occasions, involving the 
        importation, manufacture, or distribution of a controlled 
        substance (as defined in section 102 of the Controlled 
        Substances Act (21 U.S.C. 802)).
            ``(4) Previous convictions of violent drug offenses.--The 
        defendant has previously been convicted of a Federal or State 
        offense, punishable by a term of imprisonment of more than one 
        year, involving the infliction of, or attempted infliction of, 
        serious bodily injury or death upon another person, and has 
        previously been convicted of a Federal or State offense, 
        committed on a different occasion and punishable by a term of 
        imprisonment of more than one year, involving the importation, 
        manufacture, or distribution of a controlled substance (as 
        defined in section 102 of the Controlled Substances Act (21 
        U.S.C. 802)).
            ``(5) Serious drug felony conviction.--The defendant has 
        previously been convicted of another Federal or State offense 
        involving the manufacture, distribution, importation, or 
        possession of a controlled substance (as defined in section 102 
        of the Controlled Substances Act (21 U.S.C. 802)) for which a 
        sentence of five or more years of imprisonment was authorized 
        by statute.
            ``(6) Use of firearm.--In committing the offense, or in 
        furtherance of a continuing criminal enterprise of which the 
        offense was a part, the defendant used a firearm or knowingly 
        directed, advised, authorized, or assisted another to use a 
        firearm, as defined in section 921 of this title, to threaten, 
        intimidate, assault, or injure a person.
            ``(7) Distribution to persons under twenty-one.--The 
        offense, or a continuing criminal enterprise of which the 
        offense was a part, involved a violation of section 405 of the 
        Controlled Substances Act (21 U.S.C. 845) which was committed 
        directly by the defendant or for which the defendant would be 
        liable under section 2 of this title.
            ``(8) Distribution near schools.--The offense, or a 
        continuing criminal enterprise of which the offense was a part, 
        involved a violation of section 405A of the Controlled 
        Substances Act (21 U.S.C. 845a) which was committed directly by 
        the defendant or for which the defendant would be liable under 
        section 2 of this title.
            ``(9) Using minors in trafficking.--The offense, or a 
        continuing criminal enterprise of which the offense was a part, 
        involved a violation of section 405B of the Controlled 
        Substances Act (21 U.S.C. 845b) which was committed directly by 
        the defendant or for which the defendant would be liable under 
        section 2 of this title.
            ``(10) Lethal adulterant.--The offense involved the 
        importation, manufacture, or distribution, of a controlled 
        substance (as defined in section 102 of the Controlled 
        Substances Act (21 U.S.C. 802)) mixed with a potentially lethal 
        adulterant, and the defendant was aware of the presence of the 
        adulterant.
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factors exist.
Sec. 3593. Special hearing to determine whether a sentence of death is 
              justified
    ``(a) Notice by the Government.--Whenever the Government intends to 
seek the death penalty for an offense described in section 3591, the 
attorney for the Government, a reasonable time before the trial, or 
before acceptance by the court of a plea of guilty, or at such time 
thereafter as the court may permit upon a showing of good cause, shall 
sign and file with the court, and serve on the defendant, a notice--
            ``(1) that the Government in the event of conviction will 
        seek the sentence of death; and
            ``(2) setting forth the aggravating factor or factors 
        enumerated in section 3592 and any other aggravating factor not 
        specifically enumerated in section 3592, that the Government, 
        if the defendant is convicted, will seek to prove as the basis 
        for the death penalty.
The court may permit the attorney for the government to amend the 
notice upon a showing of good cause.
    ``(b) Hearing Before a Court or Jury.--When the attorney for the 
Government has filed a notice as required under subsection (a) and the 
defendant is found guilty of an offense described in section 3591, the 
judge who presided at the trial or before whom the guilty plea was 
entered, or another judge if that judge is unavailable, shall conduct a 
separate sentencing hearing to determine the punishment to be imposed. 
Prior to such a hearing, no presentence report shall be prepared by the 
United States Probation Service, notwithstanding the provisions of the 
Federal Rules of Criminal Procedure. The hearing shall be conducted--
            ``(1) before the jury that determined the defendant's 
        guilt;
            ``(2) before a jury impaneled for the purpose of the 
        hearing if--
                    ``(A) the defendant was convicted upon a plea of 
                guilty;
                    ``(B) the defendant was convicted after a trial 
                before the court sitting without a jury;
                    ``(C) the jury that determined the defendant's 
                guilt was discharged for good cause; or
                    ``(D) after initial imposition of a sentence under 
                this section, reconsideration of the sentence under the 
                section is necessary; or
            ``(3) before the court alone, upon motion of the defendant 
        and with the approval of the attorney for the Government.
A jury impaneled pursuant to paragraph (2) shall consist of twelve 
members, unless, at any time before the conclusion of the hearing, the 
parties stipulate, with the approval of the court, that it shall 
consist of a lesser number.
    ``(c) Proof of Mitigating and Aggravating Factors.--At the hearing, 
information may be presented as to--
            ``(1) any matter relating to any mitigating factor listed 
        in section 3592 and any other mitigating factor; and
            ``(2) any matter relating to any aggravating factor listed 
        in section 3592 for which notice has been provided under 
        subsection (a)(2) and (if information is presented relating to 
        such a listed factor) any other aggravating factor for which 
        notice has been so provided.
Information presented may include the trial transcript and exhibits. 
Any other information relevant to such mitigating or aggravating 
factors may be presented by either the Government or the defendant, 
regardless of its admissibility under the rules governing admission of 
evidence at criminal trials, except that information may be excluded if 
its probative value is outweighed by the danger of creating unfair 
prejudice, confusing the issues, or misleading the jury. The attorney 
for the Government and for the defendant shall be permitted to rebut 
any information received at the hearing, and shall be given fair 
opportunity to present argument as to the adequacy of the information 
to establish the existence of any aggravating or mitigating factor, and 
as to the appropriateness in that case of imposing a sentence of death. 
The attorney for the Government shall open the argument. The defendant 
shall be permitted to reply. The Government shall then be permitted to 
reply in rebuttal. The burden of establishing the existence of an 
aggravating factor is on the Government, and is not satisfied unless 
the existence of such a factor is established beyond a reasonable 
doubt. The burden of establishing the existence of any mitigating 
factor is on the defendant, and is not satisfied unless the existence 
of such a factor is established by a preponderance of the evidence.
    ``(d) Return of Special Findings.--The jury, or if there is no 
jury, the court, shall consider all the information received during the 
hearing. It shall return special findings identifying any aggravating 
factor or factors set forth in section 3592 found to exist and any 
other aggravating factor for which notice has been provided under 
subsection (a) found to exist. A finding with respect to a mitigating 
factor may be made by one or more members of the jury, and any member 
of the jury who finds the existence of a mitigating factor may consider 
such factor established for purposes of this section regardless of the 
number of jurors who concur that the factor has been established. A 
finding with respect to any aggravating factor must be unanimous. If no 
aggravating factor set forth in section 3592 is found to exist, the 
court shall impose a sentence other than death authorized by law.
    ``(e) Return of a Finding Concerning a Sentence of Death.--If an 
aggravating factor required to be considered under section 3592(b) is 
found to exist, the jury, or if there is no jury, the court, shall then 
consider whether the aggravating factor or factors found to exist 
outweigh any mitigating factor or factors. The jury, or if there is no 
jury, the court, shall recommend a sentence of death if it unanimously 
finds at least one aggravating factor and no mitigating factor or if it 
finds one or more aggravating factors which outweigh any mitigating 
factors. In any other case, it shall not recommend a sentence of death. 
The jury shall be instructed that it must avoid any influence of 
sympathy, sentiment, passion, prejudice, or other arbitrary factors in 
its decision, and should make such a recommendation as the information 
warrants.
    ``(f) Special Precaution To Assure Against Discrimination.--In a 
hearing held before a jury, the court, prior to the return of a finding 
under subsection (e), shall instruct the jury that, in considering 
whether a sentence of death is justified, it shall not consider the 
race, color, religious beliefs, national origin, or sex of the 
defendant or of any victim and that the jury is not to recommend a 
sentence of death unless it has concluded that it would recommend a 
sentence of death for the crime in question no matter what the race, 
color, religious beliefs, national origin, or sex of the defendant or 
of any victim may be. The jury, upon return of a finding under 
subsection (e), shall also return to the court a certificate, signed by 
each juror, that consideration of the race, color, religious beliefs, 
national origin, or sex of the defendant or any victim was not involved 
in reaching his or her individual decision and that the individual 
juror would have made the same recommendation regarding a sentence for 
the crime in question no matter what the race, color, religious 
beliefs, national origin, or sex of the defendant or any victim may be.
``Sec. 3594. Imposition of a sentence of death
    ``Upon the recommendation under section 3593(e) that a sentence of 
death be imposed, the court shall sentence the defendant to death. 
Otherwise the court shall impose a sentence, other than death, 
authorized by law. Notwithstanding any other provision of law, if the 
maximum term of imprisonment for the offense is life imprisonment, the 
court may impose a sentence of life imprisonment without the 
possibility of release or furlough.
``Sec. 3595. Review of a sentence of death
    ``(a) Appeal.--In a case in which a sentence of death is imposed, 
the sentence shall be subject to review by the court of appeals upon 
appeal by the defendant. Notice of appeal of the sentence must be filed 
within the time specified for the filing of a notice of appeal of the 
judgment of conviction. An appeal of the sentence under this section 
may be consolidated with an appeal of the judgment of conviction and 
shall have priority over all other cases.
    ``(b) Review.--The court of appeals shall review the entire record 
in the case, including--
            ``(1) the evidence submitted during the trial;
            ``(2) the information submitted during the sentencing 
        hearing;
            ``(3) the procedures employed in the sentencing hearing; 
        and
            ``(4) the special findings returned under section 3593(d).
    ``(c) Decision and Disposition.--
            ``(1) If the court of appeals determines that--
                    ``(A) the sentence of death was not imposed under 
                the influence of passion, prejudice, or any other 
                arbitrary factor; and
                    ``(B) the evidence and information support the 
                special findings of the existence of an aggravating 
                factor or factors;
        it shall affirm the sentence.
            ``(2) In any other case, the court of appeals shall remand 
        the case for reconsideration under section 3593 or for 
        imposition of another authorized sentence as appropriate.
            ``(3) The court of appeals shall state in writing the 
        reasons for its disposition of an appeal of sentence of death 
        under this section.
``Sec. 3596. Implementation of sentence of death
    ``(a) A person who has been sentenced to death pursuant to the 
provisions of this chapter shall be committed to the custody of the 
Attorney General until exhaustion of the procedures for appeal of the 
judgment of conviction and for review of the sentence. When the 
sentence is to be implemented, the Attorney General shall release the 
person sentenced to death to the custody of a United States Marshal, 
who shall supervise implementation of the sentence in the manner 
prescribed by the law of the State in which the sentence is imposed. If 
the law of such State does not provide for implementation of a sentence 
of death, the court shall designate another State, the law of which 
does so provide, and the sentence shall be implemented in the manner 
prescribed by such law.
    ``(b) A sentence of death shall not be carried out upon a person 
who lacks the mental capacity to understand the death penalty and why 
it was imposed on that person, or upon a woman while she is pregnant.
    ``(c) No employee of any State department of corrections or the 
Federal Bureau of Prisons and no employee providing services to that 
department or bureau under contract shall be required, as a condition 
of that employment or contractual obligation, to be in attendance at or 
to participate in any execution carried out under this section if such 
participation is contrary to the moral or religious convictions of the 
employee. For purposes of this subsection, the term `participate in any 
execution' includes personal preparation of the condemned individual 
and the apparatus used for the execution, and supervision of the 
activities of other personnel in carrying out such activities.
``Sec. 3597. Use of State facilities
    ``A United States Marshal charged with supervising the 
implementation of a sentence of death may use appropriate State or 
local facilities for the purpose, may use the services of an 
appropriate State or local official or of a person such as an official 
employed for the purpose, and shall pay the costs thereof in an amount 
approved by the Attorney General.
``Sec. 3598. Appointment of counsel
    ``(a) Federal Capital Cases.--
            ``(1) Representation of indigent defendants.--
        Notwithstanding any other provision of law, this subsection 
        shall govern the appointment of counsel for any defendant 
        against whom a sentence of death is sought, or on whom a 
        sentence of death has been imposed, for an offense against the 
        United States, where the defendant is or becomes financially 
        unable to obtain adequate representation. Such a defendant 
        shall be entitled to appointment of counsel from the 
        commencement of trial proceedings until one of the conditions 
        specified in section 3599(b) of this title has occurred.
            ``(2) Representation before finality of judgment.--A 
        defendant within the scope of this subsection shall have 
        counsel appointed for trial representation as provided in 
        section 3005 of this title. At least one counsel so appointed 
        shall continue to represent the defendant until the conclusion 
        of direct review of the judgment, unless replaced by the court 
        with other qualified counsel.
            ``(3) Representation after finality of judgment.--When a 
        judgment imposing a sentence of death has become final through 
        affirmance by the Supreme Court on direct review, denial of 
        certiorari by the Supreme Court on direct review, or expiration 
        of the time for seeking direct review in the court of appeals 
        or the Supreme Court, the Government shall promptly notify the 
        district court that imposed the sentence. Within ten days of 
        receipt of such notice, the district court shall proceed to 
        make a determination whether the defendant is eligible under 
        this subsection for appointment of counsel for subsequent 
        proceedings. On the basis of the determination, the court shall 
        issue an order: (A) appointing one or more counsel to represent 
        the defendant upon a finding that the defendant is financially 
        unable to obtain adequate representation and wishes to have 
        counsel appointed or is unable competently to decide whether to 
        accept or reject appointment of counsel; (B) finding, after a 
        hearing if necessary, that the defendant rejected appointment 
        of counsel and made the decision with an understanding of its 
        legal consequences; or (C) denying the appointment of counsel 
        upon a finding that the defendant is financially able to obtain 
        adequate representation. Counsel appointed pursuant to this 
        paragraph shall be different from the counsel who represented 
        the defendant at trial and on direct review unless the 
        defendant and counsel request a continuation or renewal of the 
        earlier representation.
            ``(4) Standards for competence of counsel.--In relation to 
        a defendant who is entitled to appointment of counsel under 
        this subsection, at least one counsel appointed for trial 
        representation must have been admitted to the bar for at least 
        five years and have at least three years of experience in the 
        trial of felony cases in the Federal district courts. If new 
        counsel is appointed after judgment, at least one counsel so 
        appointed must have been admitted to the bar for at least five 
        years and have at least three years of experience in the 
        litigation of felony cases in the Federal courts of appeals or 
        the Supreme Court. The court, for good cause, may appoint 
        counsel who does not meet these standards, but whose 
        background, knowledge, or experience would otherwise enable him 
        or her to properly represent the defendant, with due 
        consideration of the seriousness of the penalty and the nature 
        of the litigation.
            ``(5) Applicability of criminal justice act.--Except as 
        otherwise provided in this subsection, the provisions of 
        section 3006A of this title shall apply to appointments under 
        this subsection.
            ``(6) Claims of ineffectiveness of counsel.--The 
        ineffectiveness or incompetence of counsel during proceedings 
        on a motion under section 2255 of title 28, United States Code, 
        in a capital case shall not be a ground for relief from the 
        judgment or sentence in any proceeding. This limitation shall 
        not preclude the appointment of different counsel at any stage 
        of the proceedings.
    ``(b) State capital cases.--The laws of the United States shall not 
be construed to impose any requirement with respect to the appointment 
of counsel in any proceeding in a State court or other State proceeding 
in a capital case, other than any requirement imposed by the 
Constitution of the United States. In a proceeding under section 2254 
of title 28, United States Code, relating to a State capital case, or 
any subsequent proceeding on review, appointment of counsel for a 
petitioner who is or becomes financially unable to afford counsel shall 
be in the discretion of the court, except as provided by a rule 
promulgated by the Supreme Court pursuant to statutory authority. Such 
appointment of counsel shall be governed by the provisions of section 
3006A of this title.
``Sec. 3599. Collateral Attack on Judgment Imposing Sentence of Death
    ``(a) Time for making section 2255 motion.--In any case in which a 
sentence of death has been imposed for an offense against the United 
States and the judgment has become final as described in section 
3598(a)(3) of this title, a motion in the case under section 2255 of 
title 28, United States Code, must be filed within 90 days of the 
issuance of the order relating to appointment of counsel under section 
3598(a)(3) of this title. The court in which the motion is filed, for 
good cause shown, may extend the time for filing for a period not 
exceeding sixty days. A motion described in this section shall have 
priority over all non-capital matters in the district court, and in the 
court of appeals on review of the district court's decision.
    ``(b) Stay of execution.--The execution of a sentence of death 
shall be stayed in the course of direct review of the judgment and 
during the litigation of an initial motion in the case under section 
2255 of title 28, United States Code. The stay shall run continuously 
following imposition of the sentence, and shall expire if--
            ``(1) the defendant fails to file a motion under section 
        2255 of title 28, United States Code, within the time specified 
        in subsection (a), or fails to make a timely application for 
        court of appeals review following the denial of such a motion 
        by a district court; or
            ``(2) upon completion of district court and court of 
        appeals review under section 2255 of title 28, United States 
        Code, the motion under that section is denied and (A) the time 
        for filing a petition for certiorari has expired and no 
        petition has been filed; (B) a timely petition of certiorari 
        was filed and the Supreme Court denied the petition; or (C) a 
        timely petition for certiorari was filed and upon consideration 
        of the case, the Supreme Court disposed of it in a manner that 
        left the capital sentence undisturbed; or
            ``(3) before a district court, in the presence of counsel 
        and after having been advised of the consequences of his 
        decision, the defendant waives the right to file a motion under 
        section 2255 of title 28, United States Code.
    ``(c) Finality of the Decision on Review.--If one of the conditions 
specified in subsection (b) has occurred, no court thereafter shall 
have the authority to enter a stay of execution or grant relief in the 
case unless--
            ``(1) the basis for the stay and request for relief is a 
        claim not presented in earlier proceedings; and
            ``(2) the failure to raise the claim is (A) the result of 
        governmental action in violation of the Constitution or laws of 
        the United States: (B) the result of the Supreme Court 
        recognition of a new Federal right that is retroactively 
        applicable; or (C) based on a factual predicate that could not 
        have been discovered through the exercise of reasonable 
        diligence in time to present the claim in earlier proceedings; 
        and
            ``(3) the facts underlying the claim would be sufficient, 
        if proven, to undermine the court's confidence in the 
        determination of guilt on the offense or offenses for which the 
        death penalty was imposed.''; and
            (2) in the chapter analysis of part II, by adding the 
        following new item after the item relating to chapter 227:

``228. Death penalty........................................    3591''.

                                 <all>

HR 696 IH----2
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