I

103D CONGRESS

1ST SESSION H. R. 638

To amend title 18, United States Code, regarding sentencing for capital

offenses.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 26, 1993

Mr. SUNDQUIST introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To amend title 18, United States Code, regarding sentencing

for capital offenses.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. PROCEDURE IN CAPITAL CASES.

4 Part II of title 18 of the United States Code is

5 amended by inserting after chapter 227 the following new

6 chapter:

7 ‘‘CHAPTER 228—SENTENCING FOR CAPITAL

8 OFFENSES

‘‘Sec.

‘‘3591. Hearing required.

‘‘3592. Notice by the Government.

‘‘3593. Hearing before court or jury.

‘‘3594. Proof of aggravating and mitigating factors.
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‘‘3595. Return of findings.

‘‘3596. Imposition of sentence.

‘‘3597. Mitigating factors.

‘‘3598. Aggravating factors for treason and espionage.

‘‘3599. Aggravating factors for homicide.

‘‘3600. Instruction to jury on right of the defendant to justice without discrimination.

‘‘3600A. Sentencing in capital cases in which death penalty is not sought or imposed.

1 ‘‘§ 3591. Hearing required

2 ‘‘A person shall be subjected to the penalty of death

3 for any offense against the United States only if a hearing

4 is held in accordance with this chapter.

5 ‘‘§ 3592. Notice by the Government

6 ‘‘Whenever the Government intends to seek the death

7 penalty for an offense for which one of the sentences pro8 vided is death, the attorney for the Government, a reason9 able time before trial or acceptance by the court of a plea

10 of guilty, shall sign and file with the court, and serve upon

11 the defendant, a notice (1) that the Government in the

12 event of conviction will seek the sentence of death, and

13 (2) setting forth the aggravating factor or factors which

14 the Government will seek to prove as the basis for the

15 death penalty. The court may permit the attorney for the

16 Government to amend this notice for good cause shown.

17 ‘‘§ 3593. Hearing before court or jury

18 ‘‘When the attorney for the Government has filed a

19 notice as required under section 3592 and the defendant

20 is found guilty of or pleads guilty to an offense for which

21 one of the sentences provided is death, the judge who pre-
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1 sided at the trial or before whom the guilty plea was en2 tered, or any other judge if the judge who presided at the

3 trial or before whom the guilty plea was entered is unavail4 able, shall conduct a separate sentencing hearing to deter5 mine the punishment to be imposed. The hearing shall be

6 conducted—

7 ‘‘(1) before the jury which determined the de8 fendant’s guilt;

9 ‘‘(2) before a jury impaneled for the purpose of

10 the hearing if—

11 ‘‘(A) the defendant was convicted upon a

12 plea of guilty;

13 ‘‘(B) the defendant was convicted after a

14 trial before the court sitting without a jury;

15 ‘‘(C) the jury which determined the de16 fendant’s guilt has been discharged for good

17 cause; or

18 ‘‘(D) after initial imposition of a sentence

19 under this chapter, redetermination of the sen20 tence under this chapter is necessary; or

21 ‘‘(3) before the court alone, upon the motion of

22 the defendant and with the approval of the Govern23 ment.

24 A jury impaneled pursuant to paragraph (2) of this sec25 tion shall consist of twelve members, unless, at any time
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1 before the conclusion of the hearing, the parties stipulate

2 with the approval of the court that it shall consist of any

3 number less than twelve.

4 ‘‘§ 3594. Proof of aggravating and mitigating factors

5 ‘‘Notwithstanding rule 32(c) of the Federal Rules of

6 Criminal Procedure, when a defendant is found guilty of

7 or pleads guilty to an offense for which one of the sen8 tences provided is death, no presentence report shall be

9 prepared. In the sentencing hearing, information may be

10 presented as to any matter relevant to the sentence and

11 shall include matters relating to any of the aggravating

12 or mitigating factors set forth in sections 3597, 3598, and

13 3599, or any other mitigating factor. Where information

14 is presented relating to any of the aggravating factors set

15 forth in section 3598 or 3599, information may be pre16 sented relating to any other aggravating factor. Informa17 tion presented may include the trial transcript and exhib18 its if the hearing is held before a jury or judge not present

19 during the trial. Any other information relevant to such

20 mitigating or aggravating factors may be presented by ei21 ther the Government or the defendant, regardless of its

22 admissibility under the rules governing admission of evi23 dence at criminal trials, except that information may be

24 excluded if its probative value is substantially outweighed

25 by the danger of unfair prejudice, confusion of the issues,
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1 or misleading the jury. The Government and the defend2 ant shall be permitted to rebut any information received

3 at the hearing and shall be given fair opportunity to

4 present argument as to the adequacy of the information

5 to establish the existence of any of the aggravating or miti6 gating factors, and as to the appropriateness in that case

7 of imposing a sentence of death. The Government shall

8 open the argument. The defendant shall be permitted to

9 reply. The Government shall then be permitted to reply

10 in rebuttal. The burden of establishing the existence of

11 any aggravating factor is on the Government, and is not

12 satisfied unless established beyond a reasonable doubt.

13 The burden of establishing the existence of any mitigating

14 factor is on the defendant, and is not satisfied unless es15 tablished by a preponderance of the information.

16 ‘‘§ 3595. Return of findings

17 ‘‘The jury, or if there is no jury, the court shall con18 sider all the information received during the hearing. It

19 shall return special findings identifying any mitigating

20 factors, and any aggravating factors set forth in section

21 3598 or 3599, found to exist. If, in the case of an offense

22 of treason or espionage, one of the aggravating factors set

23 forth in section 3598 is found to exist, or in the case of

24 any other offense one of the aggravating factors set forth

25 in section 3599(1) and another of the aggravating factors
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1 set forth in section 3599 (2) through (10) is found to

2 exist, a special finding identifying any other aggravating

3 factor may be returned. A finding of such a factor by a

4 jury shall be made by unanimous vote. If, in the case of

5 an offense of treason or espionage, no aggravating factor

6 set forth in section 3598 is found to exist, or, in the case

7 of any other offense, an aggravating factor set forth in

8 section 3599(1) is not found to exist or an aggravating

9 factor set forth in section 3599(1) is found to exist but

10 no other aggravating factor set forth in section 3599 is

11 found to exist, the court shall impose a sentence, other

12 than death, authorized by law. If, in the case of an offense

13 of espionage or treason, one or more of the aggravating

14 factors set forth in section 3598 is found to exist, or, in

15 the case of any other offense, an aggravating factor set

16 forth in section 3599(1) and one or more of the other ag17 gravating factors set forth in section 3599 are found to

18 exist, the jury, or if there is no jury, the court, shall then

19 consider whether the aggravating factor or factors found

20 to exist sufficiently outweigh any mitigating factor or fac21 tors found to exist, or in the absence of mitigating factors,

22 whether the aggravating factors are themselves sufficient

23 to justify a sentence of death. Based upon this consider24 ation, the jury by unanimous vote, or if there is no jury,
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1 the court shall return a finding as to whether a sentence

2 of death is justified.

3 ‘‘§ 3596. Imposition of sentence

4 ‘‘Upon a finding that a sentence of death is justified,

5 the court shall sentence the defendant to death. Otherwise

6 the court shall impose a sentence, other than death, au7 thorized by law. In no event shall a sentence of death be

8 carried out on a pregnant woman.

9 ‘‘§ 3597. Mitigating factors

10 ‘‘In determining whether a sentence of death is to be

11 imposed on a defendant, the following mitigating factors

12 shall be considered but are not exclusive:

13 ‘‘(1) the defendant was less than eighteen years

14 of age at the time of the crime;

15 ‘‘(2) the defendant’s capacity to appreciate the

16 wrongfulness of his conduct or to conform his con17 duct to the requirements of law was significantly im18 paired, but not so impaired as to constitute a de19 fense to the charge;

20 ‘‘(3) the defendant was under unusual and sub21 stantial duress, although not such duress as con22 stitutes a defense to the charge;

23 ‘‘(4) the defendant is punishable as a principal

24 (as defined in section 2(a) of this title) in the of25 fense, which was committed by another, but his par-
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1 ticipation was relatively minor, although not so

2 minor as to constitute a defense to the charge;

3 ‘‘(5) the defendant could not reasonably have

4 foreseen that his conduct in the course of the com5 mission of murder, or other offense resulting in

6 death for which he was convicted, would cause, or

7 would create a grave risk of causing, death to any

8 person.

9 ‘‘§ 3598. Aggravating factors for treason and espio10 nage

11 ‘‘If the defendant is found guilty of or pleads guilty

12 to an offense under section 794 or section 2381 of this

13 title, the following aggravating factors shall be considered

14 but are not exclusive:

15 ‘‘(1) the defendant has been convicted of an16 other offense involving espionage or treason for

17 which either a sentence of life imprisonment or

18 death was authorized by statute;

19 ‘‘(2) in the commission of the offense the de20 fendant knowingly created a grave risk of substan21 tial danger to the national security;

22 ‘‘(3) in the commission of the offense the de23 fendant knowingly created a grave risk of death to

24 another person.
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1 ‘‘§ 3599. Aggravating factors for homicide

2 ‘‘If the defendant is found guilty of or pleads guilty

3 to any other offense for which one of the sentences pro4 vided is death, the following aggravating factors shall be

5 considered but are not exclusive:

6 ‘‘(1) the defendant—

7 ‘‘(A) intentionally killed the victim;

8 ‘‘(B) intentionally inflicted serious bodily

9 injury which resulted in the death of the victim;

10 ‘‘(C) intentionally participated in an act

11 which he knew or reasonably should have

12 known would create a grave risk of death to a

13 person, other than one of the participants in

14 the offense, and the victim did die as a direct

15 result of the act; or

16 ‘‘(D) attempted to kill the President of the

17 United States under the circumstances provided

18 in section 1751(c) of this title;

19 ‘‘(2) the death or injury resulting in death oc20 curred during the commission or attempted commis21 sion of, or during the immediate flight from the

22 commission or attempted commission of, an offense

23 under section 751 (prisoners in custody of institu24 tion or officer), section 794 (gathering or delivering

25 defense information to aid foreign government), sec26 tion 844(d) (transportation of explosives in inter-
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1 state commerce for certain purposes), section 844(f)

2 (destruction of Government property by explosives),

3 section 844(i) (destruction of property in interstate

4 commerce by explosives), section 1201 (kidnaping),

5 or section 2381 (treason) of this title, or section 902

6 (i) or (n) of the Federal Aviation Act of 1958, as

7 amended (49 U.S.C. 1472 (i), (n)) (aircraft piracy);

8 ‘‘(3) the defendant has been convicted of an9 other Federal offense, or a State offense resulting in

10 the death of a person, for which a sentence of life

11 imprisonment or a sentence of death was authorized

12 by statute;

13 ‘‘(4) the defendant has previously been con14 victed of two or more State or Federal offenses pun15 ishable by a term of imprisonment of more than one

16 year, committed on different occasions, involving the

17 infliction of, or attempted infliction of, serious bodily

18 injury upon another person;

19 ‘‘(5) in the commission of the offense the de20 fendant knowingly created a grave risk of death to

21 one or more persons in addition to the victim of the

22 offense;

23 ‘‘(6) the defendant committed the offense in an

24 especially heinous, cruel, or depraved manner;
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1 ‘‘(7) the defendant procured the commission of

2 the offense by payment, or promise of payment, of

3 anything of pecuniary value;

4 ‘‘(8) the defendant committed the offense as

5 consideration for the receipt, or in the expectation of

6 the receipt, of anything of pecuniary value;

7 ‘‘(9) the defendant committed the offense after

8 substantial planning and premeditation to cause the

9 death of a person or commit an act of terrorism;

10 ‘‘(10) the defendant committed the offense

11 against—

12 ‘‘(A) the President of the United States,

13 the President-elect, the Vice President, the Vice

14 President-elect, the Vice President-designate,

15 or, if there is no Vice President, the officer next

16 in order of succession to the office of the Presi17 dent of the United States, or any person who

18 is acting as President under the Constitution

19 and laws of the United States;

20 ‘‘(B) a chief of state, head of government,

21 or the political equivalent, of a foreign nation;

22 ‘‘(C) a foreign official listed in section

23 1116(b)(3)(A) of this title, if he is in the Unit24 ed States because of his official duties; or
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1 ‘‘(D) a Federal judge, a Federal law-en2 forcement officer, or an employee of a United

3 States penal or correctional institution, while

4 performing his official duties or because of his

5 status as a public servant. For purposes of this

6 subsection, a ‘law-enforcement officer’ is a pub7 lic servant authorized by law or by a Govern8 ment agency or Congress to conduct or engage

9 in the prevention, investigation, or prosecution

10 of an offense.

11 ‘‘§ 3600. Instruction to jury on right of the defendant

12 to justice without discrimination

13 ‘‘In any hearing held before a jury under this chapter,

14 the court shall instruct the jury that in its consideration

15 of whether the sentence of death is justified it shall not

16 consider the race, color, national origin, creed, or sex of

17 the defendant. The jury shall return to the court a certifi18 cate signed by each juror that consideration of race, color,

19 national origin, creed, or sex of the defendant was not in20 volved in reaching his or her individual decision.

21 ‘‘§ 3600A. Sentencing in capital cases in which death

22 penalty is not sought or imposed

23 ‘‘Notwithstanding the provisions of chapter 311 of

24 this title, upon conviction of a person for an offense for

25 which one of the sentences provided is death, the court
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1 may impose a sentence of life imprisonment without the

2 possibility of parole.’’.

3 SEC. 2. CONFORMING AMENDMENTS.

4 (a) DEATH RESULTING FROM CERTAIN AIRCRAFT

5 DESTRUCTION OFFENSES.—Section 34 of title 18 of the

6 United States Code is amended by changing the comma

7 after the words ‘‘imprisonment for life’’ to a period and

8 deleting the remainder of the section.

9 (b) ESPIONAGE.—Section 794(a) of title 18 of the

10 United States Code is amended by striking out the period

11 at the end of the section and inserting in lieu thereof the

12 following: ‘‘, except that the sentence of death shall not

13 be imposed unless the jury or, if there is no jury, the

14 court, further finds that the offense directly concerned nu15 clear weaponry, military spacecraft or satellites, early

16 warning systems, or other means of defense or retaliation

17 against large-scale attack; war plans; communications in18 telligence or cryptographic information; or any other

19 major weapons system or major element of defense strat20 egy.’’.

21 (c) EXPLOSIVES.—(1) Section 844(d) of title 18 of

22 the United States Code is amended by striking out ‘‘as

23 provided in section 34 of this title’’.
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1 (2) Section 844(f) of title 18 of the United States

2 Code is amended by striking out ‘‘as provided in section

3 34 of this title’’.

4 (3) Section 844(i) of title 18 of the United States

5 Code is amended by striking out ‘‘as provided in section

6 34 of this title’’.

7 (d) HOMICIDE.—(1) The second paragraph of section

8 1111(b) of title 18 of the United States Code is amended

9 to read as follows: ‘‘Whoever is guilty of murder in the

10 first degree shall be punished by death or by imprisonment

11 for life.’’.

12 (2) Section 1116(a) of title 18 of the United States

13 Code is amended by striking the words ‘‘any such person

14 who is found guilty of murder in the first degree shall be

15 sentenced to imprisonment for life, and’’.

16 (3) Chapter 51 of title 18 of the United States Code

17 is amended—

18 (A) by adding at the end the following:

19 ‘‘§ 1118. Murder by a Federal prisoner

20 ‘‘(a) Whoever, while under a sentence for a term of

21 life imprisonment with respect to which time remains to

22 be served in prison under applicable law, commits murder

23 in the first degree (as defined in section 1111 of this title)

24 shall be punished by death or by life imprisonment without

25 the possibility of parole.
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1 ‘‘(b) As used in the section, the term ‘term of life

2 imprisonment’ means a sentence for a term of natural life,

3 a sentence commuted to natural life, an indeterminate

4 term of a minimum of at least fifteen years and a maxi5 mum of life, or an unexecuted sentence of death.’’; and

6 (B) in the table of sections at the beginning of

7 such chapter, by adding at the end the following new

8 item:

‘‘1118. Murder by a Federal prisoner.’’.

9 (e) KIDNAPPINGS.—Section 1201(a) of title 18 of the

10 United States Code is amended by inserting after ‘‘or for

11 life’’ the following: ‘‘and, if the death of any person re12 sults, shall be punished by death or life imprisonment’’.

13 (f) DEATH RESULTING FROM NONMAILABLE ARTI14 CLES.—The last paragraph of section 1716 of title 18 of

15 the United States Code is amended by striking out ‘‘, if

16 the jury shall in its discretion’’ and all that follows

17 through the end of such section.

18 (g) ATTEMPTED PRESIDENTIAL KILLING OR KID19 NAPPING.—Subsection (c) of section 1751 of title 18 of

20 the United States Code is amended to read as follows:

21 ‘‘(c) Whoever attempts to kill or kidnap any individ22 ual designated in subsection (a) of this section shall be

23 punished (1) by imprisonment for any term of years or

24 for life, or (2) by death or imprisonment for any term of

25 years or for life, if the conduct constitutes an attempt to
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1 kill the President of the United States and results in bod2 ily injury to the President or otherwise comes dangerously

3 close to causing the death of the President.’’.

4 (h) WRECKING TRAINS.—The second to the last

5 paragraph of section 1992 of title 18 of the United States

6 Code is amended by striking out ‘‘, if the jury in its discre7 tion’’ and all that follows through the end of such para8 graph.

9 (i) BANK ROBBERY AND INCIDENTAL CRIMES.—Sec10 tion 2113(e) of title 18 of the United States Code is

11 amended by striking out ‘‘or punished by death if the ver12 dict of the jury shall so direct’’ and inserting in lieu there13 of the words ‘‘or if death results shall be punished by

14 death or life imprisonment’’.

15 (j) AIRCRAFT HIJACKINGS.—Section 903 of the Fed16 eral Aviation Act of 1958, as amended (49 U.S.C. 1473),

17 is amended by striking out subsection (c).

18 (k) TABLE OF CHAPTERS.—The table of chapters at

19 the beginning of part II of title 18 of the United States

20 Code is amended by inserting after the item relating to

21 chapter 227 the following new item:

‘‘228. Sentencing for capital offenses ......................................... 3591’’.

22 SEC. 3. APPEAL FROM SENTENCE OF DEATH.

23 (a) IN GENERAL.—Chapter 235 of title 18 of the

24 United States Code is amended by adding at the end the

25 following new section:
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1 ‘‘§ 3743. Appeal from sentence of death

2 ‘‘In any case in which the sentence of death is im3 posed under chapter 228 of this title, the sentence of death

4 shall be subject to review by the court of appeals upon

5 appeal by the defendant. Notice of appeal must be filed

6 within the time prescribed for appeal of judgment in sec7 tion 2107 of title 28. An appeal under this section may

8 be consolidated with an appeal of the judgment of convic9 tion. Such review shall have priority over all other cases.

10 ‘‘On review of the sentence, the court of appeals shall

11 consider the record, the evidence submitted during the

12 trial, the information submitted during the sentencing

13 hearing, the procedures employed in the sentencing hear14 ing, and the special findings returned under section 3596

15 of this title.

16 ‘‘The court shall affirm the sentence if it determines

17 that, (1) the sentence of death was not imposed under the

18 influence of passion, prejudice, or any other arbitrary fac19 tor; and (2) the information supports the special finding

20 of the existence of any aggravating factor, or the failure

21 to find any mitigating factors as set forth or allowed in

22 chapter 228 of this title. In all other cases the court shall

23 remand the case for reconsideration under chapter 228 of

24 this title. The court of appeals shall state in writing the

25 reasons for its disposition of the review of the sentence.’’.
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1 (b) CLERICAL AMENDMENT.—The table of sections

2 at the beginning of chapter 235 of title 18 of the United

3 States Code is amended by adding at the end thereof the

4 following new item:

‘‘3743. Appeal from sentence of death.’’.

5 SEC. 4. APPLICABILITY IN MILITARY CASES.

6 Chapter 228 and section 3743 of title 18 of the Unit7 ed States Code, as added by this Act, shall not apply to

8 prosecutions under the Uniform Code of Military Justice

9 (10 U.S.C. 801).

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