I

103D CONGRESS

1ST SESSION H. R. 3037

To provide the penalty of death for certain killings of Federal law enforcement

officers.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 9, 1993

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

Committee on the Judiciary

A BILL

To provide the penalty of death for certain killings of Federal

law enforcement officers.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Law Enforcement Offi5 cers Death Penalty Act of 1993’’.

6 SEC. 2. ESTABLISHMENT OF DEATH PENALTY FOR KILLING

7 FEDERAL LAW ENFORCEMENT OFFICERS.

8 Section 1114 of title 18, United States Code, is

9 amended—
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1 (1) by inserting after ‘‘except that any such

2 person’’ the following: ‘‘who is found guilty of first

3 degree murder shall also be subject to the penalty of

4 death in accordance with chapter 228 of this title

5 and any such person’’; and

6 (2) by adding at the end ‘‘Whoever kills a State

7 or local law enforcement officer, while such officer is

8 in the course of duty assisting a Federal law en9 forcement officer whose killing is a violation of this

10 section, shall be subject to the same punishment as

11 is provided under this section for the killing of such

12 Federal law enforcement officer in the same cir13 cumstances.’’.

14 SEC. 3. DEATH PENALTY PROCEDURES.

15 (a) IN GENERAL.—Title 18 of the United States

16 Code is amended by inserting after chapter 227 the follow17 ing:

18 ‘‘CHAPTER 228—DEATH PENALTY PROCEDURES

‘‘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 a sentence of death.

‘‘3597. Use of State facilities.

19 ‘‘§ 3591. Sentence of death

20 ‘‘A defendant who commits an offense under section

21 1114 of this title for which the death penalty may be im-
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1 posed shall be sentenced to death if, after consideration

2 of the factors set forth in section 3592 of this title in the

3 course of a hearing held pursuant to section 3593 of this

4 title, it is determined that imposition of a sentence of

5 death is justified. However, no person may be sentenced

6 to death who was less than 18 years of age at the time

7 of the offense.

8 ‘‘§ 3592. Factors to be considered in determining

9 whether a sentence of death is justified

10 ‘‘(a) MITIGATING FACTORS.—In determining wheth11 er a sentence of death is justified for any offense, the jury,

12 or if there is no jury, the court, shall consider each of

13 the following mitigating factors and determine which, if

14 any, exist:

15 ‘‘(1) MENTAL CAPACITY.—The defendant’s

16 mental capacity was significantly impaired, although

17 the impairment was not such as to constitute a de18 fense to prosecution.

19 ‘‘(2) DURESS.—The defendant was under un20 usual and substantial duress, although not such du21 ress as would constitute a defense to prosecution.

22 ‘‘(3) PARTICIPATION IN OFFENSE MINOR.—The

23 defendant was an accomplice whose participation in

24 the offense was relatively minor.
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1 The jury, or if there is no jury, the court, shall consider

2 whether any other mitigating factor exists.

3 ‘‘(b) AGGRAVATING FACTORS.—In determining

4 whether a sentence of death is justified the jury, or if there

5 is no jury, the court, shall consider each of the following

6 aggravating factors and determine which, if any, exist:

7 ‘‘(1) PREVIOUS CONVICTION OF OFFENSE FOR

8 WHICH A SENTENCE OF DEATH OR LIFE IMPRISON9 MENT WAS AUTHORIZED.—The defendant has pre10 viously been convicted of another Federal or State

11 offense resulting in the death of a person, for which

12 a sentence of life imprisonment or death was author13 ized by statute.

14 ‘‘(2) PREVIOUS CONVICTION OF OTHER SERI15 OUS OFFENSES.—The defendant has previously been

16 convicted of two or more Federal or State offenses,

17 each punishable by a term of imprisonment of more

18 than one year, committed on different occasions, in19 volving controlled substances or the infliction of, or

20 attempted infliction of, serious bodily injury or death

21 upon another person.

22 ‘‘(3) GRAVE RISK OF DEATH TO ADDITIONAL

23 PERSONS.—The defendant, in the commission of the

24 offense, knowingly created a grave risk of death to
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1 one or more persons in addition to the victim of the

2 offense.

3 ‘‘(4) HEINOUS, CRUEL, OR DEPRAVED MANNER

4 OF COMMISSION.—The defendant committed the of5 fense in an especially heinous, cruel, or depraved

6 manner.

7 ‘‘(5) PROCUREMENT OF THE OFFENSE BY PAY8 MENT.—The defendant procured the commission of

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

10 anything of pecuniary value.

11 ‘‘(6) COMMISSION OF THE OFFENSE FOR PAY12 MENT.—The defendant committed the offense as

13 consideration for the receipt, or in the expectation of

14 the receipt, of anything of pecuniary value.

15 ‘‘(7) SUBSTANTIAL PLANNING AND

16 PREMEDITATION.—The defendant committed the of17 fense after substantial planning and premeditation.

18 ‘‘(8) VULNERABILITY OF VICTIM.—The victim

19 was particularly vulnerable due to old age, youth, or

20 infirmity.

21 The jury, or if there is no jury, the court, may consider

22 whether any other aggravating factor exists.
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1 ‘‘§ 3593. Special hearing to determine whether a sen2 tence of death is justified

3 ‘‘(a) NOTICE BY THE GOVERNMENT.—If, in a case

4 involving an offense described in section 3591 of this title,

5 the attorney for the Government believes that the cir6 cumstances of the offense are such that a sentence of

7 death is justified under this chapter, such attorney shall,

8 a reasonable time before the trial, or before acceptance

9 by the court of a plea of guilty, or at such time thereafter

10 as the court may permit upon a showing of good cause,

11 sign and file with the court, and serve on the defendant,

12 a notice—

13 ‘‘(1) stating that the Government believes that

14 the circumstances of the offense are such that, if the

15 defendant is convicted, a sentence of death is justi16 fied under this chapter; and

17 ‘‘(2) setting forth the aggravating factor or fac18 tors, including a factor or factors not specifically

19 enumerated in section 3592, that the Government, if

20 the defendant is convicted, proposes to prove as jus21 tifying a sentence of death.

22 The court may permit the attorney for the Government

23 to amend the notice upon a showing of good cause.

24 ‘‘(b) HEARING BEFORE A COURT OR JURY.—If the

25 attorney for the Government has filed a notice as required

26 under subsection (a) of this section and the defendant is
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1 found guilty of an offense described in section 3591 of

2 this title, the judge who presided at the trial or before

3 whom the guilty plea was entered, or another judge if that

4 judge is unavailable, shall conduct a separate sentencing

5 hearing to determine the punishment to be imposed. Be6 fore such a hearing, no presentence report shall be pre7 pared by the United States Probation Service, notwith8 standing the provisions of the Federal Rules of Criminal

9 Procedure. The hearing shall be conducted—

10 ‘‘(1) before the jury that determined the de11 fendant’s guilt;

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

13 the hearing if—

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

15 plea of guilty;

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

17 trial before the court sitting without a jury;

18 ‘‘(C) the jury that determined the defend19 ant’s guilt was discharged for good cause; or

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

21 under this section, reconsideration of the sen22 tence under the section is necessary; or

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

24 defendant and with the approval of the attorney for

25 the Government.
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1 A jury impaneled pursuant to paragraph (2) shall consist

2 of 12 members, unless, at any time before the conclusion

3 of the hearing, the parties stipulate, with the approval of

4 the court, that it shall consist of a lesser number.

5 ‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC6 TORS.—At the hearing, information may be presented as

7 to any matter relevant to the sentence, including any miti8 gating or aggravating factor permitted or required to be

9 considered under section 3592 of this title. Information

10 presented may include the trial transcript and exhibits if

11 the hearing is held before a jury or judge not present dur12 ing the trial. Any other information relevant to a mitigat13 ing or aggravating factor may be presented by either the

14 attorney for the Government or the defendant, regardless

15 of its admissibility under the rules governing admission

16 of evidence at criminal trials, except that information may

17 be excluded if its probative value is outweighed by the dan18 ger of creating unfair prejudice, confusing the issues, or

19 misleading the jury. The attorney for the Government and

20 for the defendant shall be permitted to rebut any informa21 tion received at the hearing, and shall be given fair oppor22 tunity to present argument as to the adequacy of the in23 formation to establish the existence of any aggravating or

24 mitigating factor, and as to the appropriateness of impos25 ing a sentence of death in the case. The attorney for the
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1 Government shall open the argument. The defendant shall

2 be permitted to reply. The attorney for the Government

3 shall then be permitted to reply in rebuttal. The burden

4 of establishing the existence of an aggravating factor is

5 on the Government, and is not satisfied unless the exist6 ence of such a factor is established beyond a reasonable

7 doubt. The burden of establishing the existence of any

8 mitigating factor is on the defendant, and is not satisfied

9 unless the existence of such a factor is established by a

10 preponderance of the information.

11 ‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or

12 if there is no jury, the court, shall consider all the informa13 tion received during the hearing. It shall return special

14 findings with respect to the mitigating and aggravating

15 factors concerning which information is received at the

16 hearing, stating—

17 ‘‘(1) whether some mitigating factor required to

18 be considered under section 3592 exists;

19 ‘‘(2) whether some aggravating factor required

20 to be considered under section 3592 exists; and

21 ‘‘(3) which specific mitigating or aggravating

22 factor or factors exist.

23 A finding under paragraph (1) or (2) that some mitigating

24 or aggravating factor exists must be unanimous. A finding

25 under paragraph (3) that a specific mitigating or aggra-
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1 vating factor exists may be made by a majority of at least

2 nine members of the jury.

3 ‘‘(e) RETURN OF A FINDING CONCERNING A SEN4 TENCE OF DEATH.—If, in the case of an offense described

5 in section 3591, an aggravating factor required to be con6 sidered under section 3592 is found to exist, the jury, or

7 if there is no jury, the court, shall then consider whether

8 the aggravating factor or factors found to exist sufficiently

9 outweigh all the mitigating factors found to exist to justify

10 a sentence of death, or, in the absence of a mitigating fac11 tor, whether the aggravating factor or factors alone are

12 sufficient to justify a sentence of death. Based upon this

13 consideration, the jury by unanimous vote, or if there is

14 no jury, the court, shall return a finding as to whether

15 a sentence of death is justified. The jury or the court, re16 gardless of its findings with respect to aggravating and

17 mitigating factors, is never required to impose a death

18 sentence and the jury shall be so instructed.

19 ‘‘(f) SPECIAL PRECAUTION TO ASSURE AGAINST DIS20 CRIMINATION.—In a hearing held before a jury, the court,

21 before the return of a finding under subsection (e) of this

22 section, shall instruct the jury that, in considering whether

23 a sentence of death is justified, it shall not consider the

24 race, color, national origin, creed, or sex of the defendant

25 or of any victim. The jury, upon return of a finding under
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1 subsection (e) of this section, shall also return to the court

2 a certificate, signed by each juror, that consideration of

3 the race, color, national origin, creed, or sex of the defend4 ant or any victim was not involved in reaching the juror’s

5 individual decision.

6 ‘‘§ 3594. Imposition of a sentence of death

7 ‘‘Upon a finding under section 3593(e) of this title

8 that a sentence of death is justified, the court shall sen9 tence the defendant to death. Upon finding under section

10 3593(e) of this title that no aggravating factor required

11 to be found exists or that a sentence of death is not justi12 fied, the court shall impose any sentence other than death

13 that is authorized by law.

14 ‘‘§ 3595. Review of a sentence of death

15 ‘‘(a) APPEAL.—In a case in which a sentence of death

16 is imposed, the sentence shall be subject to review by the

17 court of appeals upon appeal by the defendant. Notice of

18 appeal must be filed within the time specified for the filing

19 of a notice of appeal. An appeal under this section may

20 be consolidated with an appeal of the judgment of convic21 tion and shall have priority over all other cases.

22 ‘‘(b) REVIEW.—The court of appeals shall review the

23 entire record in the case, including—

24 ‘‘(1) the evidence submitted during the trial;
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1 ‘‘(2) the information submitted during the sen2 tencing hearing;

3 ‘‘(3) the procedure employed in the sentencing

4 hearing; and

5 ‘‘(4) the special findings returned under section

6 3593(d) of this title.

7 ‘‘(c) DECISION AND DISPOSITION.—

8 ‘‘(1) If the court of appeals determines that—

9 ‘‘(A) the sentence of death was not im10 posed under the influence of passion, prejudice,

11 or any other arbitrary factor; and

12 ‘‘(B) the information supports the special

13 findings of the existence of an aggravating fac14 tor or factors;

15 it shall affirm the sentence.

16 ‘‘(2) In any other case, the court of appeals

17 shall remand the case for reconsideration under sec18 tion 3593 or for imposition of another authorized

19 sentence as appropriate.

20 ‘‘(3) The court of appeals shall state in writing

21 the reasons for its disposition of an appeal of sen22 tence of death under this section.

23 ‘‘§ 3596. Implementation of sentence of death

24 ‘‘A person who has been sentenced to death pursuant

25 to this chapter shall be committed to the custody of the
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1 Attorney General until exhaustion of the procedures for

2 appeal of the judgment of conviction and for review of the

3 sentence. When the sentence is to be implemented, the At4 torney General shall release the person sentenced to death

5 to the custody of a United States marshal, who shall su6 pervise implementation of the sentence in the manner pre7 scribed by law of the State in which the sentence is im8 posed. If the law of such State does not provide for imple9 mentation of a sentence of death, the court shall designate

10 another State, the law of which does so provide, and the

11 sentence shall be implemented in the manner prescribed

12 by such law. A sentence of death shall not be carried out

13 upon a person who lacks the mental capacity to under14 stand the death penalty and why it was imposed on that

15 person, or upon a woman while she is pregnant.

16 ‘‘§ 3597. Use of State facilities

17 ‘‘A United States marshal charged with supervising

18 the implementation of a sentence of death may use appro19 priate State or local facilities for the purpose, may use

20 the services of an appropriate State or local official or of

21 a person such as an official employed for the purpose, and

22 shall pay the costs thereof in the amount approved by the

23 Attorney General.’’.

24 (b) CLERICAL AMENDMENT TO CHAPTER ANALY25 SIS.—Title 18, United States Code, is amended in the
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1 chapter analysis of part II, by adding the following new

2 item after the item relating to chapter 227:

‘‘228. Death penalty procedures ................................................... 3591’’.

Æ