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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3135 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 3135

 To amend title 18, United States Code, to provide a death penalty for 
                    the murder of foreign visitors.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           September 27, 1993

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

_______________________________________________________________________

                                 A BILL

 
 To amend title 18, United States Code, to provide a death penalty for 
                    the murder of foreign visitors.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Foreign Tourist Protection Act of 
1993''.

SEC. 2. DEATH PENALTY PROCEDURES.

    (a) In General.--Chapter 51 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 1118. Protection of foreign tourists and visitors
    ``(a) In General.--Whoever kills an individual who--
            ``(1) is not a national of the United States;
            ``(2) is legally in the United States, as a tourist or 
        otherwise; and
            ``(3) does not have the right permanently to reside in the 
        United States;
shall be punished as provided in sections 1111 and 1112 of this title, 
except that if the killing is a murder in the first degree, the 
defendant shall also be subject to the death penalty under this 
section. No person may be sentenced to death under this section who was 
less than 18 years of age at the time of the offense or who is mentally 
retarded.
    ``(b) Factors To Be Considered in Determining Whether a Sentence of 
Death is Justified.--
            ``(1) Mitigating factors.--In determining whether a 
        sentence of death is justified, the jury, or if there is no 
        jury, the court, shall consider each of the following 
        mitigating factors and determine which, if any, exist:
                    ``(A) 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.
                    ``(B) 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.
                    ``(C) Participation in offense minor.--The 
                defendant's participation in the offense, which was 
                committed by another, was relatively minor, regardless 
                of whether the participation was so minor as to 
                constitute a defense to the charge.
                    ``(D) No significant criminal history.--The 
                defendant did not have a significant history of other 
                criminal conduct.
                    ``(E) Disturbance.--The defendant committed the 
                offense under severe mental or emotional disturbance.
                    ``(F) Victim's consent.--The victim consented to 
                the criminal conduct that resulted in the victim's 
                death.
The jury, or if there is no jury, the court, shall consider whether any 
other aspect of the defendant's background, character or record or any 
other circumstance of the offense that the defendant may proffer as a 
mitigating factor exists.
            ``(2) Aggravating factors.--In determining whether a 
        sentence of death is justified, the jury, or if there is no 
        jury, the court, shall consider each of the following 
        aggravating factors and determine which, if any, exist:
                    ``(A) Conduct occurred during commission of 
                specified crimes.--The conduct resulting in death 
                occurred during the commission or attempted commission 
                of, or during the immediate flight from the commission 
                of, an offense under section 32 (destruction of 
                aircraft or aircraft facilities), section 33 
                (destruction of motor vehicles or motor vehicle 
                facilities), section 36 (violence at international 
                airports), section 751 (prisoners in custody of 
                institution or officer), 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 affecting interstate commerce by explosives), 
                section 1116 (killing or attempted killing of 
                diplomats), section 1201 (kidnapping), section 1203 
                (hostage taking), section 1992 (wrecking trains), 
                section 2332 (terrorism), or section 902 (i) or (n) of 
                the Federal Aviation Act of 1958, as amended (49 U.S.C. 
                App. 1472 (i) or (n) (aircraft piracy)).
                    ``(B) Involvement of firearm or previous conviction 
                of violent felony involving firearm.--The defendant--
                            ``(i) during and in relation to the 
                        commission of the offense or in escaping or 
                        attempting to escape apprehension used or 
                        possessed a firearm as defined in section 921 
                        of this title; or
                            ``(ii) has previously been convicted of a 
                        Federal or State offense punishable by a term 
                        of imprisonment of more than one year, 
                        involving the use of attempted or threatened 
                        use of a firearm, as defined in section 921 of 
                        this title, against another person.
                    ``(C) 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.
                    ``(D) Previous conviction of other serious 
                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)) or the 
                infliction of, or attempted infliction of, serious 
                bodily injury or death upon another person.
                    ``(E) Grave risk of death to additional persons.--
                The defendant, in the commission of the offense or in 
                escaping or attempting to escape apprehension, 
                knowingly created a grave risk of death to one or more 
                persons in addition to the victim of the offense.
                    ``(F) Heinous, cruel, or depraved manner of 
                commission.--The defendant committed the offense in an 
                especially heinous, cruel, or depraved manner in that 
                it involved torture or serious physical abuse to the 
                victim.
                    ``(G) Procurement of offense by payment.--The 
                defendant procured the commission of the offense by 
                payment, or promise of payment, of anything of 
                pecuniary value.
                    ``(H) Commission of the offense for pecuniary 
                gain.--The defendant committed the offense as 
                consideration for the receipt, or in the expectation of 
                the receipt, of anything of pecuniary value.
                    ``(I) Substantial planning and premeditation.--The 
                defendant committed the offense after substantial 
                planning and premeditation.
                    ``(J) Vulnerability of victim.--The victim was 
                particularly vulnerable due to old age, youth, 
                infirmity, or inability to communicate in or understand 
                English.
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor exists.
    ``(c) Special Hearing To Determine Whether a Sentence of Death is 
Justified.--
            ``(1) Notice by the government.--Whenever the Government 
        intends to seek the death penalty for an offense under this 
        section, 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 that the Government 
        in the event of conviction will seek the sentence of death. The 
        notice shall set forth the aggravating factor or factors 
        enumerated in this section, and any other aggravating factor 
        not specifically enumerated in this section, that the 
        Government, if the defendant is convicted, will seek to prove 
        as the basis for the death penalty. The factors for which 
        notice is provided under this subsection may include factors 
        concerning the effect of the offense on the victim and the 
        victim's family. The court may permit the attorney for the 
        Government to amend the notice upon a showing of good cause.
            ``(2) Hearing before a court or jury.--When the attorney 
        for the Government has filed a notice under paragraph (1) and 
        the defendant is found guilty of an offense under this section, 
        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. Before 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--
                    ``(A) before the jury that determined the 
                defendant's guilt;
                    ``(B) before a jury impaneled for the purpose of 
                the hearing if--
                            ``(i) the defendant was convicted upon a 
                        plea of guilty;
                            ``(ii) the defendant was convicted after a 
                        trial before the court sitting without a jury;
                            ``(iii) the jury that determined the 
                        defendant's guilt was discharged for good 
                        cause; or
                            ``(iv) after initial imposition of a 
                        sentence under this section, reconsideration of 
                        the sentence under the section is necessary; or
                    ``(C) before the court alone, upon motion of the 
                defendant and with the approval of the attorney for the 
                Government.
        A jury impaneled pursuant to subparagraph (B) shall consist of 
        12 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.
            ``(3) Proof of mitigating and aggravating factors.--At the 
        hearing, information may be presented as to--
                    ``(A) any matter relating to any mitigating factor 
                listed in this section and any other mitigating factor; 
                and
                    ``(B) any matter relating to any aggravating factor 
                listed in this section for which notice has been 
                provided under paragraph (1) and (if information is 
                presented relating to such a listed factor) any other 
                aggravating factor for which notice has been so 
                provided.
        The 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. The information presented by the Government 
        in support of factors concerning the effect of the offense on 
        the victim and the victim's family may include oral testimony, 
        a victim impact statement that identifies the victim of the 
        offense and the nature and extent of harm and loss suffered by 
        the victim and the victim's family, and other relevant 
        information. Information is admissible 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.
            ``(4) 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 this 
        section found to exist and any other aggravating factor, for 
        which notice has been provided under this section, 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 
        this section is found to exist, the court shall impose a 
        sentence other than death authorized by law.
            ``(5) Return of a finding concerning a sentence of death.--
        If an aggravating factor required to be considered under this 
        section 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.
            ``(6) Special precaution to assure against 
        discrimination.--In a hearing held before a jury, the court, 
        before the return of a finding under paragraph (5), shall 
        instruct the jury that, in considering whether a sentence of 
        death is justified, it shall not be influenced by prejudice or 
        bias relating to the race, color, religion, 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, religion, national 
        origin, or sex of the defendant or of any victim may be. The 
        jury, upon return of a finding under paragraph (5), shall also 
        return to the court a certificate, signed by each juror, that 
        prejudice or bias relating to the race, color, religion, 
        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, religion, national origin, or sex of the 
        defendant or any victim may be.
    ``(d) 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.
    ``(e) Review of a Sentence of Death.--
            ``(1) 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.
            ``(2) Review.--The court of appeals shall review the entire 
        record in the case, including--
                    ``(A) the evidence submitted during the trial;
                    ``(B) the information submitted during the 
                sentencing hearing;
                    ``(C) the procedures employed in the sentencing 
                hearing; and
                    ``(D) the special findings returned under this 
                section.
            ``(3) Decision and disposition.--
                    ``(A) If the court of appeals determines that--
                            ``(i) the sentence of death was not imposed 
                        under the influence of passion, prejudice, or 
                        any other arbitrary factor;
                            ``(ii) the evidence and information support 
                        the special findings of the existence of an 
                        aggravating factor or factors; and
                            ``(iii) the proceedings did not involve any 
                        other prejudicial error requiring reversal of 
                        the sentence that was properly preserved for 
                        and raised on appeal;
                it shall affirm the sentence.
                    ``(B) In any other case, the court of appeals shall 
                remand the case for reconsideration under this section 
                or for imposition of another authorized sentence as 
                appropriate, except that the court shall not reverse a 
                sentence of death on the ground that an aggravating 
                factor was invalid or was not supported by the evidence 
                and information if at least one aggravating factor 
                required to be considered under this section remains 
                which was found to exist and the court, on the basis of 
                the evidence submitted at trial and the information 
                submitted at the sentencing hearing, finds no 
                mitigating factor or finds that the remaining 
                aggravating factor or factors which were found to exist 
                outweigh any mitigating factors.
                    ``(C) The court of appeals shall state in writing 
                the reasons for its disposition of an appeal of a 
                sentence of death under this section.
    ``(f) Implementation of a Sentence of Death.--
            ``(1) In general.--A person who has been sentenced to death 
        under this section 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.
            ``(2) Special bars to execution.--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.
            ``(3) Employees may decline to participate.--No employee of 
        any State department of corrections, the Federal Bureau of 
        Prisons, or the United States Marshals Service, and no employee 
        providing services to that department, bureau, or service 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.
    ``(g) 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 
an official employs for the purpose, and shall pay the costs thereof in 
an amount approved by the Attorney General.
    ``(h) Appointment of Counsel.--
            ``(1) Representation of indigent defendants.--
        Notwithstanding any other provision of law, this section 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 
        subsection (h)(2) has occurred.
            ``(2) Representation before finality of judgment.--A 
        defendant within the scope of this section 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 section 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 subsection 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 section, 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 section, the provisions of section 
        3006A of this title shall apply to appointments under this 
        section.
            ``(6) Claims of ineffectiveness of counsel.--The 
        ineffectiveness or incompetence of counsel during proceedings 
        on a motion under section 2255 of title 28 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.
    ``(i) Collateral Attack on Judgment Imposing Sentence of Death.--
            ``(1) Time for making section 2255 motion.--In a case in 
        which sentence of death has been imposed, and the judgment has 
        become final as described in subsection (g)(3), 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 subsection (g)(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 60 days. A motion described in this section shall 
        have priority over all noncapital matters in the district 
        court, and in the court of appeals on review of the district 
        court's decision.
            ``(2) 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. The stay shall run 
        continuously following imposition of the sentence, and shall 
        expire if--
                    ``(A) the defendant fails to file a motion under 
                section 2255 of title 28, within the time specified in 
                subsection (a), or fails to make a timely application 
                for court of appeals review following the denial of 
                such motion by a district court;
                    ``(B) upon completion of district court and court 
                of appeals review under section 2255 of title 28, the 
                motion under that section is denied and (i) the time 
                for filing a petition for certiorari has expired and no 
                petition has been filed; (ii) a timely petition for 
                certiorari was filed and the Supreme Court denied the 
                petition; or (iii) 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
                    ``(C) 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.
            ``(3) 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--
                    ``(A) the basis for the stay and request for relief 
                is a claim not presented in earlier proceedings;
                    ``(B) the failure to raise the claim was (i) the 
                result of governmental action in violation of the 
                Constitution or laws of the United States; (ii) the 
                result of the Supreme Court recognition of a new 
                Federal right that is retroactively applicable; or 
                (iii) 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
                    ``(C) 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.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 51 of title 18, United States Code, is amended by adding at the 
end the following:

``1118. Protection of foreign tourists and visitors.''.

                                 <all>

HR 3135 IH----2
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