```

[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 638 Introduced in House (IH)]

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.

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

SECTION 1. PROCEDURE IN CAPITAL CASES.

    Part II of title 18 of the United States Code is amended by 
inserting after chapter 227 the following new chapter:

             ``CHAPTER 228--SENTENCING FOR CAPITAL OFFENSES

``Sec.
``3591. Hearing required.
``3592. Notice by the Government.
``3593. Hearing before court or jury.
``3594. Proof of aggravating and mitigating factors.
``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.
``Sec. 3591. Hearing required
    ``A person shall be subjected to the penalty of death for any 
offense against the United States only if a hearing is held in 
accordance with this chapter.
``Sec. 3592. Notice by the Government
    ``Whenever the Government intends to seek the death penalty for an 
offense for which one of the sentences provided is death, the attorney 
for the Government, a reasonable time before trial or acceptance by the 
court of a plea of guilty, shall sign and file with the court, and 
serve upon 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 which the Government will seek to 
prove as the basis for the death penalty. The court may permit the 
attorney for the Government to amend this notice for good cause shown.
``Sec. 3593. Hearing before court or jury
    ``When the attorney for the Government has filed a notice as 
required under section 3592 and the defendant is found guilty of or 
pleads guilty to an offense for which one of the sentences provided is 
death, the judge who presided at the trial or before whom the guilty 
plea was entered, or any other judge if the judge who presided at the 
trial or before whom the guilty plea was entered is unavailable, shall 
conduct a separate sentencing hearing to determine the punishment to be 
imposed. The hearing shall be conducted--
            ``(1) before the jury which 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 which determined the defendant's 
                guilt has been discharged for good cause; or
                    ``(D) after initial imposition of a sentence under 
                this chapter, redetermination of the sentence under 
                this chapter is necessary; or
            ``(3) before the court alone, upon the motion of the 
        defendant and with the approval of the Government.
A jury impaneled pursuant to paragraph (2) of this section 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 any number less than twelve.
``Sec. 3594. Proof of aggravating and mitigating factors
    ``Notwithstanding rule 32(c) of the Federal Rules of Criminal 
Procedure, when a defendant is found guilty of or pleads guilty to an 
offense for which one of the sentences provided is death, no 
presentence report shall be prepared. In the sentencing hearing, 
information may be presented as to any matter relevant to the sentence 
and shall include matters relating to any of the aggravating or 
mitigating factors set forth in sections 3597, 3598, and 3599, or any 
other mitigating factor. Where information is presented relating to any 
of the aggravating factors set forth in section 3598 or 3599, 
information may be presented relating to any other aggravating factor. 
Information presented may include the trial transcript and exhibits if 
the hearing is held before a jury or judge not present during the 
trial. 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 substantially outweighed by the danger of unfair 
prejudice, confusion of the issues, or misleading the jury. The 
Government and 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 of the aggravating or mitigating factors, and as 
to the appropriateness in that case of imposing a sentence of death. 
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 any aggravating 
factor is on the Government, and is not satisfied unless established 
beyond a reasonable doubt. The burden of establishing the existence of 
any mitigating factor is on the defendant, and is not satisfied unless 
established by a preponderance of the information.
``Sec. 3595. Return of 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 mitigating factors, and any aggravating 
factors set forth in section 3598 or 3599, found to exist. If, in the 
case of an offense of treason or espionage, one of the aggravating 
factors set forth in section 3598 is found to exist, or in the case of 
any other offense one of the aggravating factors set forth in section 
3599(1) and another of the aggravating factors set forth in section 
3599 (2) through (10) is found to exist, a special finding identifying 
any other aggravating factor may be returned. A finding of such a 
factor by a jury shall be made by unanimous vote. If, in the case of an 
offense of treason or espionage, no aggravating factor set forth in 
section 3598 is found to exist, or, in the case of any other offense, 
an aggravating factor set forth in section 3599(1) is not found to 
exist or an aggravating factor set forth in section 3599(1) is found to 
exist but no other aggravating factor set forth in section 3599 is 
found to exist, the court shall impose a sentence, other than death, 
authorized by law. If, in the case of an offense of espionage or 
treason, one or more of the aggravating factors set forth in section 
3598 is found to exist, or, in the case of any other offense, an 
aggravating factor set forth in section 3599(1) and one or more of the 
other aggravating factors set forth in section 3599 are 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 sufficiently 
outweigh any mitigating factor or factors found to exist, or in the 
absence of mitigating factors, whether the aggravating factors are 
themselves sufficient to justify a sentence of death. Based upon this 
consideration, the jury by unanimous vote, or if there is no jury, the 
court shall return a finding as to whether a sentence of death is 
justified.
``Sec. 3596. Imposition of sentence
    ``Upon a finding that a sentence of death is justified, the court 
shall sentence the defendant to death. Otherwise the court shall impose 
a sentence, other than death, authorized by law. In no event shall a 
sentence of death be carried out on a pregnant woman.
``Sec. 3597. Mitigating factors
    ``In determining whether a sentence of death is to be imposed on a 
defendant, the following mitigating factors shall be considered but are 
not exclusive:
            ``(1) the defendant was less than eighteen years of age at 
        the time of the crime;
            ``(2) the defendant's capacity to appreciate the 
        wrongfulness of his conduct or to conform his conduct to the 
        requirements of law was significantly impaired, but not so 
        impaired as to constitute a defense to the charge;
            ``(3) the defendant was under unusual and substantial 
        duress, although not such duress as constitutes a defense to 
        the charge;
            ``(4) the defendant is punishable as a principal (as 
        defined in section 2(a) of this title) in the offense, which 
        was committed by another, but his participation was relatively 
        minor, although not so minor as to constitute a defense to the 
        charge;
            ``(5) the defendant could not reasonably have foreseen that 
        his conduct in the course of the commission of murder, or other 
        offense resulting in death for which he was convicted, would 
        cause, or would create a grave risk of causing, death to any 
        person.
``Sec. 3598. Aggravating factors for treason and espionage
    ``If the defendant is found guilty of or pleads guilty to an 
offense under section 794 or section 2381 of this title, the following 
aggravating factors shall be considered but are not exclusive:
            ``(1) the defendant has been convicted of another offense 
        involving espionage or treason for which either a sentence of 
        life imprisonment or death was authorized by statute;
            ``(2) in the commission of the offense the defendant 
        knowingly created a grave risk of substantial danger to the 
        national security;
            ``(3) in the commission of the offense the defendant 
        knowingly created a grave risk of death to another person.
``Sec. 3599. Aggravating factors for homicide
    ``If the defendant is found guilty of or pleads guilty to any other 
offense for which one of the sentences provided is death, the following 
aggravating factors shall be considered but are not exclusive:
            ``(1) the defendant--
                    ``(A) intentionally killed the victim;
                    ``(B) intentionally inflicted serious bodily injury 
                which resulted in the death of the victim;
                    ``(C) intentionally participated in an act which he 
                knew or reasonably should have known would create a 
                grave risk of death to a person, other than one of the 
                participants in the offense, and the victim did die as 
                a direct result of the act; or
                    ``(D) attempted to kill the President of the United 
                States under the circumstances provided in section 
                1751(c) of this title;
            ``(2) the death or injury resulting in death occurred 
        during the commission or attempted commission of, or during the 
        immediate flight from the commission or attempted commission 
        of, an offense under section 751 (prisoners in custody of 
        institution or officer), section 794 (gathering or delivering 
        defense information to aid foreign government), section 844(d) 
        (transportation of explosives in interstate commerce for 
        certain purposes), section 844(f) (destruction of Government 
        property by explosives), section 844(i) (destruction of 
        property in interstate commerce by explosives), section 1201 
        (kidnaping), or section 2381 (treason) of this title, or 
        section 902 (i) or (n) of the Federal Aviation Act of 1958, as 
        amended (49 U.S.C. 1472 (i), (n)) (aircraft piracy);
            ``(3) the defendant has been convicted of another Federal 
        offense, or a State offense resulting in the death of a person, 
        for which a sentence of life imprisonment or a sentence of 
        death was authorized by statute;
            ``(4) the defendant has previously been convicted of two or 
        more State or Federal offenses punishable by a term of 
        imprisonment of more than one year, committed on different 
        occasions, involving the infliction of, or attempted infliction 
        of, serious bodily injury upon another person;
            ``(5) in the commission of the offense the defendant 
        knowingly created a grave risk of death to one or more persons 
        in addition to the victim of the offense;
            ``(6) the defendant committed the offense in an especially 
        heinous, cruel, or depraved manner;
            ``(7) the defendant procured the commission of the offense 
        by payment, or promise of payment, of anything of pecuniary 
        value;
            ``(8) the defendant committed the offense as consideration 
        for the receipt, or in the expectation of the receipt, of 
        anything of pecuniary value;
            ``(9) the defendant committed the offense after substantial 
        planning and premeditation to cause the death of a person or 
        commit an act of terrorism;
            ``(10) the defendant committed the offense against--
                    ``(A) the President of the United States, the 
                President-elect, the Vice President, the Vice 
                President-elect, the Vice President-designate, or, if 
                there is no Vice President, the officer next in order 
                of succession to the office of the President of the 
                United States, or any person who is acting as President 
                under the Constitution and laws of the United States;
                    ``(B) a chief of state, head of government, or the 
                political equivalent, of a foreign nation;
                    ``(C) a foreign official listed in section 
                1116(b)(3)(A) of this title, if he is in the United 
                States because of his official duties; or
                    ``(D) a Federal judge, a Federal law-enforcement 
                officer, or an employee of a United States penal or 
                correctional institution, while performing his official 
                duties or because of his status as a public servant. 
                For purposes of this subsection, a `law-enforcement 
                officer' is a public servant authorized by law or by a 
                Government agency or Congress to conduct or engage in 
                the prevention, investigation, or prosecution of an 
                offense.
``Sec. 3600. Instruction to jury on right of the defendant to justice 
              without discrimination
    ``In any hearing held before a jury under this chapter, the court 
shall instruct the jury that in its consideration of whether the 
sentence of death is justified it shall not consider the race, color, 
national origin, creed, or sex of the defendant. The jury shall return 
to the court a certificate signed by each juror that consideration of 
race, color, national origin, creed, or sex of the defendant was not 
involved in reaching his or her individual decision.
``Sec. 3600A. Sentencing in capital cases in which death penalty is not 
              sought or imposed
    ``Notwithstanding the provisions of chapter 311 of this title, upon 
conviction of a person for an offense for which one of the sentences 
provided is death, the court may impose a sentence of life imprisonment 
without the possibility of parole.''.

SEC. 2. CONFORMING AMENDMENTS.

    (a) Death Resulting From Certain Aircraft Destruction Offenses.--
Section 34 of title 18 of the United States Code is amended by changing 
the comma after the words ``imprisonment for life'' to a period and 
deleting the remainder of the section.
    (b) Espionage.--Section 794(a) of title 18 of the United States 
Code is amended by striking out the period at the end of the section 
and inserting in lieu thereof the following: ``, except that the 
sentence of death shall not be imposed unless the jury or, if there is 
no jury, the court, further finds that the offense directly concerned 
nuclear weaponry, military spacecraft or satellites, early warning 
systems, or other means of defense or retaliation against large-scale 
attack; war plans; communications intelligence or cryptographic 
information; or any other major weapons system or major element of 
defense strategy.''.
    (c) Explosives.--(1) Section 844(d) of title 18 of the United 
States Code is amended by striking out ``as provided in section 34 of 
this title''.
    (2) Section 844(f) of title 18 of the United States Code is amended 
by striking out ``as provided in section 34 of this title''.
    (3) Section 844(i) of title 18 of the United States Code is amended 
by striking out ``as provided in section 34 of this title''.
    (d) Homicide.--(1) The second paragraph of section 1111(b) of title 
18 of the United States Code is amended to read as follows: ``Whoever 
is guilty of murder in the first degree shall be punished by death or 
by imprisonment for life.''.
    (2) Section 1116(a) of title 18 of the United States Code is 
amended by striking the words ``any such person who is found guilty of 
murder in the first degree shall be sentenced to imprisonment for life, 
and''.
    (3) Chapter 51 of title 18 of the United States Code is amended--
            (A) by adding at the end the following:
``Sec. 1118. Murder by a Federal prisoner
    ``(a) Whoever, while under a sentence for a term of life 
imprisonment with respect to which time remains to be served in prison 
under applicable law, commits murder in the first degree (as defined in 
section 1111 of this title) shall be punished by death or by life 
imprisonment without the possibility of parole.
    ``(b) As used in the section, the term `term of life imprisonment' 
means a sentence for a term of natural life, a sentence commuted to 
natural life, an indeterminate term of a minimum of at least fifteen 
years and a maximum of life, or an unexecuted sentence of death.''; and
            (B) in the table of sections at the beginning of such 
        chapter, by adding at the end the following new item:

``1118. Murder by a Federal prisoner.''.
    (e) Kidnappings.--Section 1201(a) of title 18 of the United States 
Code is amended by inserting after ``or for life'' the following: 
``and, if the death of any person results, shall be punished by death 
or life imprisonment''.
    (f) Death Resulting From Nonmailable Articles.--The last paragraph 
of section 1716 of title 18 of the United States Code is amended by 
striking out ``, if the jury shall in its discretion'' and all that 
follows through the end of such section.
    (g) Attempted Presidential Killing or Kidnapping.--Subsection (c) 
of section 1751 of title 18 of the United States Code is amended to 
read as follows:
    ``(c) Whoever attempts to kill or kidnap any individual designated 
in subsection (a) of this section shall be punished (1) by imprisonment 
for any term of years or for life, or (2) by death or imprisonment for 
any term of years or for life, if the conduct constitutes an attempt to 
kill the President of the United States and results in bodily injury to 
the President or otherwise comes dangerously close to causing the death 
of the President.''.
    (h) Wrecking Trains.--The second to the last paragraph of section 
1992 of title 18 of the United States Code is amended by striking out 
``, if the jury in its discretion'' and all that follows through the 
end of such paragraph.
    (i) Bank Robbery and Incidental Crimes.--Section 2113(e) of title 
18 of the United States Code is amended by striking out ``or punished 
by death if the verdict of the jury shall so direct'' and inserting in 
lieu thereof the words ``or if death results shall be punished by death 
or life imprisonment''.
    (j) Aircraft Hijackings.--Section 903 of the Federal Aviation Act 
of 1958, as amended (49 U.S.C. 1473), is amended by striking out 
subsection (c).
    (k) Table of Chapters.--The table of chapters at the beginning of 
part II of title 18 of the United States Code is amended by inserting 
after the item relating to chapter 227 the following new item:

``228. Sentencing for capital offenses......................    3591''.

SEC. 3. APPEAL FROM SENTENCE OF DEATH.

    (a) In General.--Chapter 235 of title 18 of the United States Code 
is amended by adding at the end the following new section:
``Sec. 3743. Appeal from sentence of death
    ``In any case in which the sentence of death is imposed under 
chapter 228 of this title, the sentence of death shall be subject to 
review by the court of appeals upon appeal by the defendant. Notice of 
appeal must be filed within the time prescribed for appeal of judgment 
in section 2107 of title 28. An appeal under this section may be 
consolidated with an appeal of the judgment of conviction. Such review 
shall have priority over all other cases.
    ``On review of the sentence, the court of appeals shall consider 
the record, the evidence submitted during the trial, the information 
submitted during the sentencing hearing, the procedures employed in the 
sentencing hearing, and the special findings returned under section 
3596 of this title.
    ``The court shall affirm the sentence if it determines that, (1) 
the sentence of death was not imposed under the influence of passion, 
prejudice, or any other arbitrary factor; and (2) the information 
supports the special finding of the existence of any aggravating 
factor, or the failure to find any mitigating factors as set forth or 
allowed in chapter 228 of this title. In all other cases the court 
shall remand the case for reconsideration under chapter 228 of this 
title. The court of appeals shall state in writing the reasons for its 
disposition of the review of the sentence.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 235 of title 18 of the United States Code is amended by adding 
at the end thereof the following new item:

``3743. Appeal from sentence of death.''.

SEC. 4. APPLICABILITY IN MILITARY CASES.

    Chapter 228 and section 3743 of title 18 of the United States Code, 
as added by this Act, shall not apply to prosecutions under the Uniform 
Code of Military Justice (10 U.S.C. 801).

                                 <all>

HR 638 IH----2
```