I

103D CONGRESS

1ST SESSION H. R. 3556

To provide for, and to provide constitutional procedures for the imposition

of, the death penalty for causing death through the use of a bomb

or other destructive device.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 19, 1993

Mr. FRANKS of Connecticut introduced the following bill; which was referred

to the Committee on the Judiciary

A BILL

To provide for, and to provide constitutional procedures for

the imposition of, the death penalty for causing death

through the use of a bomb or other destructive device.

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 ‘‘Bombing Homicide

5 Death Penalty Act’’.
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1 SEC. 2. DEATH PENALTY AUTHORIZATIONS AND PROCE2 DURES.

3 Section 924 of title 18, United States Code, is

4 amended by adding at the end the following new sub5 section:

6 ‘‘(i) CAUSING DEATH THROUGH THE USE OF A

7 BOMB OR OTHER DESTRUCTIVE DEVICE.—

8 ‘‘(1) PENALTY.—

9 ‘‘(A) IN GENERAL.—Subject to subpara10 graph (B), a person who intentionally or with

11 reckless disregard for human life causes the

12 death of a person through the use of a bomb or

13 other destructive device shall be sentenced to

14 life imprisonment without release or to death if,

15 after consideration of the factors listed in para16 graph (2) in the course of a hearing held pursu17 ant to paragraph (3), it is determined that im18 position of a sentence of death is justified.

19 ‘‘(B) LIMITATION.—No person may be

20 sentenced to the death penalty who was less

21 than 18 years of age at the time of the offense.

22 ‘‘(2) FACTORS TO BE CONSIDERED IN DETER23 MINING WHETHER A SENTENCE OF DEATH IS JUSTI24 FIED.—

25 ‘‘(A) MITIGATING FACTORS.—In determin26 ing whether a sentence of death is justified for
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1 an offense described in paragraph (1), the jury,

2 or if there is no jury, the court, shall consider

3 each of the following mitigating factors and de4 termine which, if any exists:

5 ‘‘(i) MENTAL CAPACITY.—The defend6 ant’s mental capacity to appreciate the

7 wrongfulness of his or her conduct or to

8 conform his or her conduct to the require9 ments of law was significantly impaired,

10 regardless of whether the capacity was so

11 impaired as to constitute a defense to the

12 charge.

13 ‘‘(ii) DURESS.—The defendant was

14 under unusual and substantial duress, re15 gardless of whether the duress was of such

16 a degree as to constitute a defense to the

17 charge.

18 ‘‘(iii) PARTICIPATION IN OFFENSE

19 MINOR.—The defendant’s participation in

20 the offense, which was committed by an21 other, was relatively minor, although not

22 so minor as to constitute a defense to the

23 charge.

24 The jury, or if there is no jury, the court, shall

25 consider whether any other aspect of the de-
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1 fendant’s character or record or any other cir2 cumstance of the offense that the defendant

3 may proffer as a mitigating factor exists.

4 ‘‘(B) AGGRAVATING FACTORS.—In deter5 mining whether a sentence of death is justified

6 for an offense described in paragraph (1), the

7 jury, or if there is no jury, the court, shall con8 sider each of the following aggravating factors

9 and determine which, if any, exist—

10 ‘‘(i) PREVIOUS CONVICTION OF OF11 FENSE FOR WHICH A SENTENCE OF DEATH

12 OR LIFE IMPRISONMENT WAS AUTHOR13 IZED.—The defendant has previously been

14 convicted of another Federal or State of15 fense resulting in the death of a person,

16 for which a sentence of life imprisonment

17 or death was authorized by statute.

18 ‘‘(ii) PREVIOUS CONVICTIONS OF VIO19 LENT OFFENSES.—The defendant has pre20 viously been convicted of 2 or more Fed21 eral or State offenses, each punishable by

22 a term of imprisonment of more than 1

23 year, committed on different occasions, in24 volving the infliction or attempted inflic-
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1 tion of serious bodily injury or death upon

2 another person.

3 ‘‘(iii) PREVIOUS CONVICTIONS OF

4 DRUG OFFENSES.—The defendant has pre5 viously been convicted of 2 or more Fed6 eral or State offenses, each punishable by

7 a term of imprisonment of more than 1

8 year, committed on different occasions, in9 volving the importation, manufacture, or

10 distribution of a controlled substance (as

11 defined in section 102 of the Controlled

12 Substances Act (21 U.S.C. 802)).

13 ‘‘(iv) PREVIOUS CONVICTIONS OF VIO14 LENT DRUG OFFENSES.—The defendant

15 has previously been convicted of a Federal

16 or State offense, punishable by a term of

17 imprisonment of more than 1 year, involv18 ing the infliction of, or attempted infliction

19 of, serious bodily injury or death upon an20 other person, and has previously been con21 victed of a Federal or State offense,

22 committed on a different occasion and

23 punishable by a term of imprisonment of

24 more than 1 year, involving the importa25 tion, manufacture, or distribution of a con-
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1 trolled substance (as defined in section 102

2 of the Controlled Substances Act (21

3 U.S.C. 802)).

4 ‘‘(v) SERIOUS DRUG FELONY CONVIC5 TION.—The defendant has previously been

6 convicted of another Federal or State of7 fense involving the manufacture, distribu8 tion, importation, or possession of a con9 trolled substance (as defined in section 102

10 of the Controlled Substances Act (21

11 U.S.C. 802)) for which a sentence of 5 or

12 more years of imprisonment was author13 ized by statute.

14 ‘‘(vi) PREVIOUS CONVICTION OF A

15 VIOLENT FELONY INVOLVING A FIRE16 ARM.—The defendant has previously been

17 convicted of a Federal or State offense

18 punishable by a term of imprisonment of

19 more than 1 year involving the use or at20 tempted use of a firearm to threaten, in21 timidate, assault or injure a person.

22 ‘‘(3) SPECIAL HEARING TO DETERMINE

23 WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—

24 ‘‘(A) NOTICE BY THE GOVERNMENT.—

25 When the Government intends to seek the death
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1 penalty for an offense described in paragraph

2 (1), the attorney for the Government, a reason3 able time before the trial, or before acceptance

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

5 thereafter as the court may permit upon a

6 showing of good cause, shall sign and file with

7 the court, and serve on the defendant, a no8 tice—

9 ‘‘(i) stating that the Government in

10 the event of conviction will seek the sen11 tence of death; and

12 ‘‘(ii) setting forth the aggravating fac13 tor or factors listed in paragraph (2)(B)

14 and any other aggravating factor not listed

15 in paragraph (2)(B) that the Government,

16 if the defendant is convicted, will seek to

17 prove as the basis for the death penalty.

18 The court may permit the attorney for the Gov19 ernment to amend the notice upon a showing of

20 good cause.

21 ‘‘(B) HEARING BEFORE A COURT OR

22 JURY.—When the attorney for the Government

23 has filed a notice as required under subpara24 graph (A) and the defendant is found guilty of

25 an offense described in paragraph (1), the
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1 judge who presided at the trial or before whom

2 the guilty plea was entered, or another judge if

3 that judge is unavailable, shall conduct a sepa4 rate sentencing hearing to determine the pun5 ishment to be imposed. Prior to such a hearing,

6 no presentence report shall be prepared by the

7 United States Probation Service, notwithstand8 ing the provisions of the Federal Rules of

9 Criminal Procedure. The hearing shall be con10 ducted—

11 ‘‘(i) before the jury that determined

12 the defendant’s guilt;

13 ‘‘(ii) before a jury impaneled for the

14 purpose of the hearing if—

15 ‘‘(I) the defendant was convicted

16 upon a plea of guilty;

17 ‘‘(II) the defendant was convicted

18 after a trial before the court sitting

19 without a jury;

20 ‘‘(III) the jury that determined

21 the defendant’s guilt was discharged

22 for good cause; or

23 ‘‘(IV) after initial imposition of a

24 sentence under this section, reconsid-
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1 eration of the sentence under the sec2 tion is necessary; or

3 ‘‘(iii) before the court alone, upon mo4 tion of the defendant and with the ap5 proval of the attorney for the Government.

6 A jury impaneled pursuant to clause (ii) shall

7 consist of 12 members unless, at any time be8 fore the conclusion of the hearing, the parties

9 stipulate, with the approval of the court, that it

10 shall consist of a lesser number.

11 ‘‘(C) PROOF OF MITIGATING AND AGGRA12 VATING FACTORS.—At the hearing, information

13 may be presented concerning—

14 ‘‘(i) any matter relating to any miti15 gating factor listed in paragraph (2)(A)

16 and any other mitigating factor; and

17 ‘‘(ii) any matter relating to any ag18 gravating factor listed in paragraph (2)(B)

19 for which notice has been provided under

20 paragraph ( 3)(A) and (if information is

21 presented relating to such a listed factor)

22 any other aggravating factor for which no23 tice has been so provided.

24 Information presented may include the trial

25 transcript and exhibits. Any other information
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1 relevant to such mitigating or aggravating fac2 tors may be presented by the Government or

3 the defendant, regardless of its admissibility

4 under the rules governing admission of evidence

5 at criminal trials, except that information may

6 be excluded if its probative value is outweighed

7 by the danger of creating unfair prejudice, con8 fusing the issues, or misleading the jury. The

9 attorney for the Government and the attorney

10 for the defendant shall be permitted to rebut

11 any information received at the hearing, and

12 shall be given fair opportunity to present argu13 ment as to the adequacy of the information to

14 establish the existence of any aggravating or

15 mitigating factor and as to the appropriateness

16 in that case of imposing a sentence of death.

17 The attorney for the Government shall open the

18 argument. The defendant shall be permitted to

19 reply. The Government shall then be permitted

20 to reply in rebuttal. The burden of establishing

21 the existence of an aggravating factor is on the

22 Government, and is not satisfied unless the ex23 istence of such a factor is established beyond a

24 reasonable doubt. The burden of establishing

25 the existence of any mitigating factor is on the
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1 defendant, and is not satisfied unless the exist2 ence of such a factor is established by a prepon3 derance of the evidence.

4 ‘‘(D) RETURN OF SPECIAL FINDINGS.—

5 The jury, or if there is no jury, the court, shall

6 consider all the information received during the

7 hearing. It shall return special findings identify8 ing any aggravating factor or factors set forth

9 in paragraph (2)(B) found to exist and any

10 other aggravating factor for which notice has

11 been provided under paragraph (3)(A) found to

12 exist. A finding with respect to a mitigating

13 factor may be made by 1 or more members of

14 the jury, and any member of the jury who finds

15 the existence of a mitigating factor may con16 sider such factor established for purposes of

17 this section regardless of the number of jurors

18 who concur that the factor has been estab19 lished. A finding with respect to any aggravat20 ing factor must be unanimous. If no aggravat21 ing factor listed in paragraph (2)(B) is found to

22 exist, the court shall impose a sentence other

23 than death authorized by law.

24 ‘‘(E) RETURN OF A FINDING CONCERNING

25 A SENTENCE OF DEATH.—If an aggravating
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1 factor required to be considered under para2 graph (2)(B) is found to exist, the jury, or if

3 there is no jury, the court, shall consider wheth4 er the aggravating factor or factors found to

5 exist outweigh any mitigating factor or factors.

6 The jury, or if there is no jury, the court, shall

7 recommend a sentence of death if it unani8 mously finds at least 1 aggravating factor and

9 no mitigating factor or if it finds 1 or more ag10 gravating factors that outweigh any mitigating

11 factors. In any other case, it shall not rec12 ommend a sentence of death. The jury shall be

13 instructed that it must avoid any influence of

14 sympathy, sentiment, passion, prejudice, or

15 other arbitrary factors in its decision, and

16 should make such a recommendation as the in17 formation warrants.

18 ‘‘(F) SPECIAL PRECAUTION TO ENSURE

19 AGAINST DISCRIMINATION.—In a hearing held

20 before a jury, the court, prior to the return of

21 a finding under subparagraph (E), shall in22 struct the jury that, in considering whether a

23 sentence of death is justified, it shall not con24 sider the race, color, religious beliefs, national

25 origin, or sex of the defendant or of any victim
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1 and that the jury is not to recommend a sen2 tence of death unless it has concluded that it

3 would recommend a sentence of death for the

4 crime in question no matter what the race,

5 color, religious beliefs, national origin, or sex of

6 the defendant or of any victim may be. The

7 jury, upon return of a finding under subpara8 graph (E), shall also return to the court a cer9 tificate, signed by each juror, that consideration

10 of the race, color, religious beliefs, national ori11 gin, or sex of the defendant or any victim was

12 not involved in reaching his or her individual

13 decision and that the individual juror would

14 have made the same recommendation regarding

15 a sentence for the crime in question no matter

16 what the race, color, religious beliefs, national

17 origin, or sex of the defendant or any victim

18 may be.

19 ‘‘(4) IMPOSITION OF A SENTENCE OF DEATH.—

20 Upon the recommendation under paragraph (3)(E)

21 that a sentence of death be imposed, the court shall

22 sentence the defendant to death. Otherwise the court

23 shall impose a sentence, other than death, author24 ized by law.

25 ‘‘(5) REVIEW OF A SENTENCE OF DEATH.—
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1 ‘‘(A) APPEAL.—In a case in which a sen2 tence of death is imposed, the sentence shall be

3 subject to review by the court of appeals upon

4 appeal by the defendant. Notice of appeal of the

5 sentence shall be filed within the time specified

6 for the filing of a notice of appeal of the judg7 ment of conviction. An appeal of the sentence

8 under this subsection may be consolidated with

9 an appeal of the judgment of conviction and

10 shall have priority over all other cases.

11 ‘‘(B) REVIEW.—The court of appeals shall

12 review the entire record in the case, including—

13 ‘‘(i) the evidence submitted during the

14 trial;

15 ‘‘(ii) the information submitted during

16 the sentencing hearing;

17 ‘‘(iii) the procedures employed in the

18 sentencing hearing; and

19 ‘‘(iv) the special findings returned

20 under paragraph (3)(D).

21 ‘‘(C) DECISION AND DISPOSITION.—

22 ‘‘(i) If the court of appeals determines

23 that—

24 ‘‘(I) the sentence of death was

25 not imposed under the influence of
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1 passion, prejudice, or any other arbi2 trary factor;

3 ‘‘(II) the evidence and informa4 tion support the special findings of

5 the existence of an aggravating factor

6 or factors; and

7 ‘‘(III) the proceedings did not in8 volve any other prejudicial error re9 quiring reversal of the sentence that

10 was properly preserved for and raised

11 on appeal,

12 the court it shall affirm the sentence.

13 ‘‘(ii) In any other case, the court of

14 appeals shall remand the case for reconsid15 eration or for imposition of another au16 thorized sentence as appropriate.

17 ‘‘(iii) The court of appeals shall state

18 in writing the reasons for its disposition of

19 an appeal of sentence of death under this

20 subsection.

21 ‘‘(6) IMPLEMENTATION OF SENTENCE OF

22 DEATH.—

23 ‘‘(A) PROCEDURE.— A person who has

24 been sentenced to death pursuant to this sub25 section shall be committed to the custody of the
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1 Attorney General until exhaustion of the proce2 dures for appeal of the judgment of conviction

3 and for review of the sentence. When the sen4 tence is to be implemented, the Attorney Gen5 eral shall release the person sentenced to death

6 to the custody of a United States marshal, who

7 shall supervise implementation of the sentence

8 in the manner prescribed by the law of the

9 State in which the sentence is imposed. If the

10 law of that State does not provide for imple11 mentation of a sentence of death, the court

12 shall designate another State, the law of which

13 does so provide, and the sentence shall be im14 plemented in the manner prescribed by such

15 law.

16 ‘‘(B) LIMITATION.—A sentence of death

17 shall not be carried out upon a person who

18 lacks the mental capacity to understand the

19 death penalty and why it was imposed on that

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

21 ‘‘(C) PARTICIPATION BY EMPLOYEES.—No

22 employee of any State department of correc23 tions or the Federal Bureau of Prisons, or the

24 United States Marshals Service, and no em25 ployee providing services to that department,
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1 bureau, or service under contract shall be re2 quired, as a condition of that employment or

3 contractual obligation, to be in attendance at or

4 to participate in any execution carried out

5 under this subsection if such participation is

6 contrary to the moral or religious convictions of

7 the employee. For purposes of this subsection,

8 the term ‘participate in any execution’ includes

9 personal preparation of the condemned person

10 and the apparatus used for the execution, and

11 supervision of the activities of other personnel

12 in carrying out such activities.

13 ‘‘(7) USE OF STATE FACILITIES.—A United

14 States marshal charged with supervising the imple15 mentation of a sentence of death may use appro16 priate State or local facilities for the purpose, may

17 use the services of an appropriate State or local offi18 cial or of a person such as an official employed for

19 the purpose, and shall pay the costs thereof in an

20 amount approved by the Attorney General.

21 ‘‘(8) APPOINTMENT OF COUNSEL.—

22 ‘‘(A) REPRESENTATION OF INDIGENT DE23 FENDANTS.—Notwithstanding any other law,

24 this paragraph shall govern the appointment of

25 counsel for any defendant against whom a sen-
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1 tence of death is sought or on whom a sentence

2 of death has been imposed for an offense de3 scribed in paragraph (1) when the defendant is

4 or becomes financially unable to obtain ade5 quate representation. Such a defendant shall be

6 entitled to appointment of counsel from the

7 commencement of trial proceedings until 1 of

8 the conditions specified in paragraph (9)(B)

9 has occurred.

10 ‘‘(B) REPRESENTATION BEFORE FINALITY

11 OF JUDGMENT.—A defendant within the scope

12 of this paragraph shall have counsel appointed

13 for trial representation as provided in section

14 3005. At least 1 counsel so appointed shall con15 tinue to represent the defendant until the con16 clusion of direct review of the judgment, un17 less replaced by the court with other qualified

18 counsel.

19 ‘‘(C) REPRESENTATION AFTER FINALITY

20 OF JUDGMENT.—When a judgment imposing a

21 sentence of death has become final through af22 firmance by the Supreme Court on direct re23 view, denial of certiorari by the Supreme Court

24 on direct review, or expiration of the time for

25 seeking direct review in the court of appeals or
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1 the Supreme Court, the Government shall

2 promptly notify the district court that imposed

3 the sentence. Within 10 days after receipt of

4 such a notice, the district court shall proceed to

5 make a determination whether the defendant is

6 eligible under this paragraph for appointment

7 of counsel for subsequent proceedings. On the

8 basis of the determination, the court shall issue

9 an order—

10 ‘‘(i) appointing 1 or more counsel to

11 represent the defendant upon a finding

12 that the defendant is financially unable to

13 obtain adequate representation and wishes

14 to have counsel appointed or is unable

15 competently to decide whether to accept or

16 reject appointment of counsel;

17 ‘‘(ii) finding, after a hearing if nec18 essary, that the defendant rejected ap19 pointment of counsel and made the deci20 sion with an understanding of its legal con21 sequences; or

22 ‘‘(iii) denying the appointment of

23 counsel upon a finding that the defendant

24 is financially able to obtain adequate rep25 resentation. Counsel appointed pursuant to
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1 this paragraph shall be different from the

2 counsel who represented the defendant at

3 trial and on direct review unless the de4 fendant and counsel request a continuation

5 or renewal of the earlier representation.

6 ‘‘(D) STANDARDS FOR COMPETENCE OF

7 COUNSEL.—In relation to a defendant who is

8 entitled to appointment of counsel under this

9 subsection, at least 1 counsel appointed for trial

10 representation shall have been admitted to the

11 bar for at least 5 years and have at least 3

12 years of experience in the trial of felony cases

13 in the Federal district courts. If new counsel is

14 appointed after judgment, at least 1 counsel so

15 appointed shall have been admitted to the bar

16 for at least 5 years and have at least 3 years

17 of experience in the litigation of felony cases in

18 the Federal courts of appeals or the Supreme

19 Court. The court, for good cause, may appoint

20 counsel who does not meet these standards, but

21 whose background, knowledge, or experience

22 would otherwise enable him or her to properly

23 represent the defendant, with due consideration

24 of the seriousness of the penalty and the nature

25 of the litigation.
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1 ‘‘(E) APPLICABILITY OF CRIMINAL JUS2 TICE ACT.—Except as otherwise provided in

3 this paragraph, section 3006A shall apply to

4 appointments under this paragraph.

5 ‘‘(F) CLAIMS OF INEFFECTIVENESS OF

6 COUNSEL.—The ineffectiveness or incompetence

7 of counsel during proceedings on a motion

8 under section 2255 of title 28 in a capital case

9 shall not be a ground for relief from the judg10 ment or sentence in any proceeding. The limita11 tion stated in the preceding sentence shall not

12 preclude the appointment of different counsel at

13 any stage of the proceedings.

14 ‘‘(9) COLLATERAL ATTACK ON JUDGMENT IM15 POSING SENTENCE OF DEATH.—

16 ‘‘(A) TIME FOR MAKING SECTION 2255 MO17 TION.—In any case in which a sentence of

18 death has been imposed for an offense against

19 the United States and the judgment has become

20 final under section 3598(a)(3), a motion in the

21 case under section 2255 of title 28 shall be filed

22 within 90 days after the issuance of the order

23 relating to appointment of counsel under sec24 tion 3598(a)(3). The court in which the motion

25 is filed for good cause may extend the time for
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1 filing for a period not exceeding 60 days. A mo2 tion under this subparagraph shall have priority

3 over all noncapital matters in the district court,

4 and in the court of appeals on review of the dis5 trict court’s decision.

6 ‘‘(B) STAY OF EXECUTION.—The execution

7 of a sentence of death shall be stayed in the

8 course of direct review of the judgment and

9 during the litigation of an initial motion in the

10 case under section 2255 of title 28. The stay

11 shall run continuously following imposition of

12 the sentence, and shall expire if—

13 ‘‘(i) the defendant fails to file a mo14 tion under section 2255 of title 28 within

15 the time specified in subparagraph (A) or

16 fails to make a timely application for court

17 of appeals review following the denial of

18 such a motion by a district court;

19 ‘‘(ii) upon completion of district court

20 and court of appeals review under section

21 2255 of title 28, the motion under that

22 section is denied and—

23 ‘‘(I) the time for filing a petition

24 for certiorari has expired and no peti25 tion has been filed;
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1 ‘‘(II) a timely petition of certio2 rari was filed and the Supreme Court

3 denied the petition; or

4 ‘‘(III) a timely petition for certio5 rari was filed and upon consideration

6 of the case,

7 the Supreme Court disposed of it in a

8 manner that left the capital sentence un9 disturbed; or

10 ‘‘(iii) before a district court, in the

11 presence of counsel and after having been

12 advised of the consequences of his decision,

13 the defendant waives the right to file a mo14 tion under section 2255 of title 28 .

15 ‘‘(C) FINALITY OF THE DECISION ON RE16 VIEW.—If 1 of the conditions specified in sub17 paragraph (B) has occurred, no court there18 after shall have the authority to enter a stay of

19 execution or grant relief in the case unless—

20 ‘‘(i) the basis for the stay and request

21 for relief is a claim not presented in earlier

22 proceedings;

23 ‘‘(ii) the failure to raise the claim is—
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1 ‘‘(I) the result of governmental

2 action in violation of the Constitution

3 or laws of the United States;

4 ‘‘(II) the result of the Supreme

5 Court recognition of a new Federal

6 right that is retroactively applicable;

7 or

8 ‘‘(III) based on a factual predi9 cate that could not have been discov10 ered through the exercise of reason11 able diligence in time to present the

12 claim in earlier proceedings; and

13 ‘‘(iii) the facts underlying the claim

14 would be sufficient, if proven, to under15 mine the court’s confidence in the deter16 mination of guilt on the offense or offenses

17 for which the death penalty was imposed.

18 ‘‘(10) JURISDICTION.—There is Federal juris19 diction over an offense under this subsection if—

20 ‘‘(A) the conduct of the offender occurred

21 in the course of an offense against the United

22 States; or

23 ‘‘(B) a destructive device or part thereof

24 involved in the offense has moved at any time

25 in interstate or foreign commerce.’’.
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