I

103D CONGRESS

2D SESSION H. R. 4055

To combat crime.

IN THE HOUSE OF REPRESENTATIVES

MARCH 16, 1994

Mr. BURTON of Indiana introduced the following bill; which was referred jointly to the Committees on the Judiciary, Energy and Commerce, Foreign

Affairs, Banking, Finance and Urban Affairs, and Armed Services

A BILL

To combat crime.

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

3 SECTION 1. TABLE OF CONTENTS.

4 The table of contents for this Act is as follows:

Sec. 1. Table of contents.

TITLE I—BOOT CAMP

Sec. 101. Conversion of property and facilities at closed or realigned military

installations into youthful offender boot camps.

Sec. 102. Grants for boot camps.

TITLE II—STRONGER PENALTIES FOR DRUG OFFENDERS

Sec. 201. Life imprisonment or death penalty for certain drug trafficking offenses.

Sec. 202. Conforming amendments.

TITLE III—VIOLENCE AGAINST WOMEN AND CHILDREN

Sec. 301. Pretrial detention in sex offense cases.
2

•HR 4055 IH

Sec. 302. Death penalty for murders committed by sex offenders.

Sec. 303. Increased penalties for recidivist sex offenders.

Sec. 304. Increased penalties for sex offenses against victims below the age of

16.

Sec. 305. Sentencing guidelines increase for sex offenses.

Sec. 306. HIV testing and penalty enhancement in sexual offense cases.

Sec. 307. Admissibility of evidence of similar crimes in sex offense cases.

Sec. 308. Interstate travel to commit spouse abuse or to violate protective

order; interstate stalking.

Sec. 309. Full faith and credit for protective orders.

Sec. 310. Presumption against child custody for spouse abusers.

TITLE IV—IMMIGRATION AND ASYLUM REFORM

Sec. 401. Inspection and exclusion by immigration officers.

Sec. 402. Enhanced penalties for alien smuggling.

Sec. 403. Expanded forfeiture for smuggling or harboring illegal aliens.

Sec. 404. Including alien smuggling as a racketeering activity for purposes of

racketeering influenced and corrupt organizations (RICO) enforcement authority.

Sec. 405. Effective dates.

Sec. 406. Asylum.

Sec. 407. Failure to appear for provisional asylum hearing; judicial review.

Sec. 408. Effective dates.

Sec. 409. Issuance of new identification cards for aliens.

Sec. 410. Implementation.

Sec. 411. No national identity card.

Sec. 412. Employer education program.

Sec. 413. Authorization of appropriations.

Sec. 414. Employment eligibility verification demonstration project.

TITLE V—CHILD-RELATED SEX OFFENDERS

Sec. 501. Sense of Congress.

TITLE VI—TRUTH IN SENTENCING

Sec. 601. Short title.

Sec. 602. Findings and purpose.

Sec. 603. Definition.

Sec. 604. State sentencing reviews.

Sec. 605. State sentencing systems.

Sec. 606. Funding and compliance.

TITLE VII—THREE STRIKES AND YOU’RE OUT

Sec. 701. Life imprisonment or death penalty for third Federal violent felony

conviction.

TITLE VIII—HABEAS CORPUS REFORM

Subtitle A—Post Conviction Petitions: General Habeas Corpus Reform

Sec. 801. Period of limitation for filing writ of habeas corpus following final

judgment of a State court.

Sec. 802. Authority of appellate judges to issue certificates of probable cause

for appeal in habeas corpus and Federal collateral relief proceedings.
3

•HR 4055 IH

Sec. 803. Conforming amendment to the rules of appellate procedure.

Sec. 804. Discretion to deny habeas corpus application despite failure to exhaust State remedies.

Sec. 805. Period of limitation for Federal prisoners filing for collateral remedy.

Subtitle B—Special Procedures for Collateral Proceedings in Capital Cases

Sec. 811. Death penalty litigation procedures.

Subtitle C—Funding for Litigation of Federal Habeas Corpus Petitions in

Capital Cases

Sec. 821. Funding for death penalty prosecutions.

TITLE IX—INCREASE PENALTIES FOR JUVENILES

Sec. 901. Prosecution as adults of violent juvenile offenders.

1 TITLE I—BOOT CAMP

2 SEC. 101. CONVERSION OF PROPERTY AND FACILITIES AT

3 CLOSED OR REALIGNED MILITARY INSTALLA4 TIONS INTO YOUTHFUL OFFENDER BOOT

5 CAMPS.

6 (a) BASES CLOSED OR REALIGNED UNDER 1990

7 BASE CLOSURE LAW.—Section 2905 of the Defense Base

8 Closure and Realignment Act of 1990 (part A of title

9 XXIX of Public Law 101–510; 10 U.S.C. 2687 note) is

10 amended by adding at the end the following:

11 ‘‘(f) PRIORITY FOR CONVERSION TO YOUTHFUL OF12 FENDER BOOT CAMPS.—(1) Notwithstanding subsection

13 (b), before any action is taken with respect to the disposal

14 or transfer of any real property or facility located at a

15 military installation to be closed or realigned under this

16 part, the Secretary of Defense shall notify the State and

17 each local government in which the installation is located

18 and other interested persons of the suitability of the prop-
4

•HR 4055 IH

1 erty or facility for conversion and use as a youthful

2 offender boot camp.

3 ‘‘(2) Subject to paragraph (3), the Secretary shall

4 transfer (without reimbursement) the property or facilities

5 described in the notification to the State, local govern6 ment, or interested person if the State, local government,

7 or person certifies that the property or facilities will be

8 promptly converted to and used as a youthful offender

9 boot camp.

10 ‘‘(3) Any certification submitted under paragraph (2)

11 must be received by the Secretary not later than 180 days

12 after the Secretary provides the notification required by

13 paragraph (1) and must include a conversion and operat14 ing plan for the youthful offender boot camp. If the Sec15 retary receives more than one certification, the Secretary

16 shall select the recipient of the property or facility based

17 upon the quality and feasibility of the competing conver18 sion and operating plans. In the case of a certification sub19 mitted by a private person, the Secretary may reject the

20 certification and refuse to transfer the property or facility

21 concerned if—

22 ‘‘(A) the Secretary determines on the basis of

23 the conversion and operating plan that the person

24 will likely be unable to successfully convert or oper25 ate the proposed youthful offender boot camp; or
5

•HR 4055 IH

1 ‘‘(B) the State or any local government in

2 which the installation is located opposes the transfer.

3 ‘‘(4) As used in this subsection, the term ‘youthful

4 offender boot camp’ means a correctional facility operated

5 as a military-style boot camp to provide discipline, treat6 ment, and work for adjudicated non-violent offenders who

7 are between the ages of 14 and 25, inclusive.’’.

8 (b) BASES CLOSED OR REALIGNED UNDER 1988

9 BASE CLOSURE LAW.—Section 204 of the Defense Au10 thorization Amendments and Base Closure and Realign11 ment Act (title II of Public Law 100–526; 10 U.S.C. 2687

12 note) is amended by adding at the end the following new

13 subsection:

14 ‘‘(e) PRIORITY FOR CONVERSION TO YOUTHFUL OF15 FENDER BOOT CAMPS.—(1) Notwithstanding subsection

16 (b), before any action is taken with respect to the disposal

17 or transfer of any real property or facility located at a

18 military installation to be closed or realigned under this

19 title, the Secretary of Defense shall notify the State and

20 each local government in which the installation is located

21 and other interested persons of the suitability of the prop22 erty or facility for conversion and use as a youthful of23 fender boot camp.

24 ‘‘(2) Subject to paragraph (3), the Secretary shall

25 transfer (without reimbursement) the property or facilities
6

•HR 4055 IH

1 described in the notification to the State, local govern2 ment, or interested person if the State, local government,

3 or person certifies that the property or facilities will be

4 promptly converted to and used as a youthful offender

5 boot camp.

6 ‘‘(3) Any certification submitted under paragraph (2)

7 must be received by the Secretary not later than 180 days

8 after the Secretary provides the notification required by

9 paragraph (1) and must include a conversion and operat10 ing plan for the youthful offender boot camp. If the Sec11 retary receives more than one certification, the Secretary

12 shall select the recipient of the property or facility based

13 upon the quality and feasibility of the competing conver14 sion and operating plans. In the case of a certification sub15 mitted by a private person, the Secretary may reject the

16 certification and refuse to transfer the property or facility

17 concerned if—

18 ‘‘(A) the Secretary determines on the basis of

19 the conversion and operating plan that the person

20 will likely be unable to successfully convert or oper21 ate the proposed youthful offender boot camp; or

22 ‘‘(B) the State or any local government in

23 which the installation is located opposes the transfer.

24 ‘‘(4) As used in this subsection, the term ‘youthful

25 offender boot camp’ means a correctional facility operated
7

•HR 4055 IH

1 as a military-style boot camp to provide discipline, treat2 ment, and work for adjudicated non-violent offenders who

3 are between the ages of 14 and 25, inclusive.’’.

4 (c) MODEL YOUTHFUL OFFENDER BOOT CAMP.—

5 (1) DEVELOPMENT.—The Secretary of Defense,

6 in consultation with the Federal Bureau of Prisons

7 and State and local correctional agencies, shall de8 velop a model program intended to incorporate mili9 tary basic training and other military instruction

10 and disciplinary procedures into the design and op11 eration of youthful offender boot camps at the Fed12 eral, State, and local levels.

13 (2) DEFINITION.—For purposes of this sub14 section, the term ‘‘youthful offender boot camp’’

15 means a correctional facility operated as a military16 style boot camp to provide discipline, treatment, and

17 work for adjudicated non-violent offenders who are

18 between the ages of 14 and 25, inclusive.

19 SEC. 102. GRANTS FOR BOOT CAMPS.

20 Subsection (a) of section 516 of the Omnibus Crime

21 Control and Safe Streets Act of 1968 (42 U.S.C. 3762b)

22 is amended—

23 (1) by striking ‘‘80’’ and inserting ‘‘40’’; and

24 (2) by striking ‘‘10’’ the second place it appears

25 and inserting ‘‘50’’.
8

•HR 4055 IH

1 TITLE II—STRONGER PENALTIES

2 FOR DRUG OFFENDERS

3 SEC. 201. LIFE IMPRISONMENT OR DEATH PENALTY FOR

4 CERTAIN DRUG TRAFFICKING OFFENSES.

5 (a) IN GENERAL.—Part D of the Controlled Sub6 stances Act (21 U.S.C. 841 et seq.) is amended by adding

7 at the end the following:

8 ‘‘LIFE IMPRISONMENT OR DEATH PENALTY FOR CERTAIN

9 DRUG TRAFFICKING OFFENSES

10 ‘‘SEC. 423. (a) Whoever commits a violation of this

11 title or title III involving—

12 ‘‘(1) 4 or more kilograms of cocaine (including

13 cocaine freebase);

14 ‘‘(2) 2 or more kilograms of heroin;

15 ‘‘(3) 200,000 or more dosage units of lysergic

16 acid diethylamide; or

17 ‘‘(4) 200,000 or more dosage units of

18 phencyclidine;

19 shall be sentenced to death or to life imprisonment without

20 the benefit of parole, probation, or suspension.

21 ‘‘(b) The procedures applicable to the death penalty

22 for an offense under section 902(i) of the Federal Aviation

23 Act of 1958 shall, to the greatest extent practicable, apply

24 to the death penalty for an offense under this section.’’.
9

•HR 4055 IH

1 (b) CLERICAL AMENDMENT.—The table of contents

2 of the Comprehensive Drug Abuse Prevention and Control

3 Act of 1970 is amended by adding at the end of the items

4 relating to part D of title II the following new item:

‘‘Sec. 423. Life imprisonment or death penalty for certain drug trafficking offenses.’’.

5 SEC. 202. CONFORMING AMENDMENTS.

6 (a) SECTION 401.—Section 401(b) of the Controlled

7 Substances Act (21 U.S.C. 841(b)) is amended in the mat8 ter before paragraph (1) by striking out ‘‘418’’ and insert9 ing ‘‘417, 418’’.

10 (b) SECTION 1010.—Paragraph (1) of section

11 1010(b) of the Controlled Substances Import and Export

12 Act (21 U.S.C. 960(b)(1)) is amended in the matter before

13 subparagraph (A) by striking out ‘‘In’’ and inserting in

14 lieu thereof ‘‘Except as otherwise provided in this title or

15 title II, in’’.

16 TITLE III—VIOLENCE AGAINST

17 WOMEN AND CHILDREN

18 SEC. 301. PRETRIAL DETENTION IN SEX OFFENSE CASES.

19 Section 3156(a)(4) of title 18, United States Code,

20 is amended by striking ‘‘, or’’ at the end of subparagraph

21 (A) and inserting a semicolon, by striking the period at

22 the end of subparagraph (B) and inserting ‘‘; or’’, and

23 by adding after subparagraph (B) the following new sub24 paragraph:
10

•HR 4055 IH

1 ‘‘(C) any felony under chapter 109A or

2 chapter 110 of this title.’’.

3 SEC. 302. DEATH PENALTY FOR MURDERS COMMITTED BY

4 SEX OFFENDERS.

5 Title 18 of the United States Code is amended—

6 (1) by adding the following new section at the

7 end of chapter 51:

8 ‘‘§ 1118. Capital Punishment for Murders Committed

9 by Sex Offenders

10 ‘‘(a) OFFENSE.—(1) Whoever, in a circumstance de11 scribed in subsection (b) of this section—

12 ‘‘(A) causes the death of a person intentionally,

13 knowingly, or through recklessness manifesting ex14 treme indifference to human life; or

15 ‘‘(B) causes the death of a person through the

16 intentional infliction of serious bodily injury;

17 shall be punished as provided in subsection (c) of this

18 section.

19 ‘‘(2) For the purposes of this section, conduct that

20 results in the transfer of the human immunodeficiency

21 virus to a person shall be deemed conduct that causes the

22 death of that person, whether or not that person has died

23 before the prosecution for the offense under this section

24 takes place.
11

•HR 4055 IH

1 ‘‘(b) REQUIRED CIRCUMSTANCES.—The cir2 cumstance referred to in subsection (a) of this is that the

3 conduct resulting in death occurs in the course of another

4 offense against the United States.

5 ‘‘(c) PENALTY.—The penalty for an offense under

6 this section is a fine under this title or imprisonment for

7 life or any term of years, or both. A sentence of death

8 may also be imposed for an offense under this section as

9 provided in subsections (d)–(l), except that a sentence of

10 death may not be imposed on a defendant who was below

11 the age of 18 years at the time of the commission of the

12 crime.

13 ‘‘(d) MITIGATING FACTORS.—In determining wheth14 er to recommend a sentence of death, the jury shall con15 sider whether any aspect of the defendant’s character,

16 background, or record or any circumstance of the offense

17 that the defendant may proffer as a mitigating factor ex18 ists, including the following factors:

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

20 mental capacity to appreciate the wrongfulness of

21 his conduct or to conform his conduct to the require22 ments of law was significantly impaired.

23 ‘‘(2) DURESS.—The defendant was under un24 usual and substantial duress.
12

•HR 4055 IH

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

2 defendant is punishable as a principal (pursuant to

3 section 2 of this title) in the offense, which was com4 mitted by another, but the defendant’s participation

5 was relatively minor.

6 ‘‘(e) AGGRAVATING FACTORS.—In determining

7 whether to recommend a sentence of death, the jury shall

8 consider any aggravating factor for which notice has been

9 provided under subsection (f), including the following

10 factors:

11 ‘‘(1) KILLING IN COURSE OF DESIGNATED SEX

12 CRIMES.—The conduct resulting in death occurred

13 in the course of an offense defined in chapter 109A,

14 110, or 117 of this title.

15 ‘‘(2) KILLING IN CONNECTION WITH SEXUAL

16 ASSAULT OR CHILD MOLESTATION.—The defendant

17 committed a crime of sexual assault or crime of

18 child molestation, as defined in subsection (x), in the

19 course of an offense on which federal jurisdiction is

20 based under subsection (b).

21 ‘‘(3) PRIOR CONVICTION OF SEXUAL ASSAULT

22 OR CHILD MOLESTATION.—The defendant has pre23 viously been convicted of a crime of sexual assault

24 or crime of child molestation as defined in sub25 section (x).
13

•HR 4055 IH

1 ‘‘(f) NOTICE OF INTENT TO SEEK DEATH PEN2 ALTY.—If the government intends to seek the death pen3 alty for an offense under this section, the attorney for the

4 government shall file with the court and serve on the de5 fendant a notice of such intent. The notice shall be pro6 vided a reasonable time before the trial or acceptance of

7 a guilty plea, or at such later time before trial as the court

8 may permit for good cause. If the court permits a late

9 filing of the notice upon a showing of good cause, the court

10 shall ensure that the defendant has adequate time to pre11 pare for trial. The notice shall set forth the aggravating

12 factor or factors set forth in subsection (e) and any other

13 aggravating factor or factors that the government will seek

14 to prove as the basis for the death penalty. The factors

15 for which notice is provided under this subsection may in16 clude factors concerning the effect of the offense on the

17 victim and the victim’s family. The court may permit the

18 attorney for the government to amend the notice upon a

19 showing of good cause.

20 ‘‘(g) JUDGE AND JURY AT CAPITAL SENTENCING

21 HEARING.—A hearing to determine whether the death

22 penalty will be imposed for an offense under this section

23 shall be conducted by the judge who presided at trial or

24 accepted a guilty plea, or by another judge if that judge

25 is not available. The hearing shall be conducted before the
14

•HR 4055 IH

1 jury that determined the defendant’s guilt if that jury is

2 available. A new jury shall be impaneled for the purpose

3 of the hearing if the defendant pleaded guilty, the trial

4 of guilt was conducted without a jury, the jury that deter5 mined the defendant’s guilt was discharged for good

6 cause, or reconsideration of the sentence is necessary after

7 the initial imposition of a sentence of death. A jury

8 impaneled under this subsection shall have twelve mem9 bers unless the parties stipulate to a lesser number at any

10 time before the conclusion of the hearing with the approval

11 of the judge. Upon motion of the defendant, with the ap12 proval of the attorney for the government, the hearing

13 shall be carried out before the judge without a jury. If

14 there is no jury, references to ‘the jury’ in this section,

15 where applicable, shall be understood as referring to the

16 judge.

17 ‘‘(h) PROOF OF MITIGATING AND AGGRAVATING

18 FACTORS.—No presentence report shall be prepared if a

19 capital sentencing hearing is held under this section. Any

20 information relevant to the existence of mitigating factors,

21 or to the existence of aggravating factors for which notice

22 has been provided under subsection (f), may be presented

23 by either the government or the defendant. The informa24 tion presented may include trial transcripts and exhibits.

25 Information presented by the government in support of
15

•HR 4055 IH

1 factors concerning the effect of the offense on the victim

2 and the victim’s family may include oral testimony, a vic3 tim impact statement that identifies the victim of the of4 fense and the nature and extent of harm and loss suffered

5 by the victim and the victim’s family, and other relevant

6 information. Information is admissible regardless of its

7 admissibility under the rules governing the admission of

8 evidence at criminal trials, except that information may

9 be excluded if its probative value is outweighed by the dan10 ger of creating unfair prejudice, confusing the issues, or

11 misleading the jury. The attorney for the government and

12 for the defendant shall be permitted to rebut any informa13 tion received at the hearing, and shall be given fair oppor14 tunity to present argument as to the adequacy of the in15 formation to establish the existence of any aggravating or

16 mitigating factor, and as to the appropriateness in that

17 case of imposing a sentence of death. The attorney for

18 the government shall open the argument, the defendant

19 shall be permitted to reply, and the government shall then

20 be permitted to reply in rebuttal.

21 ‘‘(i) FINDINGS OF AGGRAVATING AND MITIGATING

22 FACTORS.—The jury shall return special findings identify23 ing any aggravating factor or factors for which notice has

24 been provided under subsection (f) and which the jury

25 unanimously determines have been established by the gov-
16

•HR 4055 IH

1 ernment beyond a reasonable doubt. A mitigating factor

2 is established if the defendant has proven its existence by

3 a preponderance of the evidence, and any member of the

4 jury who finds the existence of such a factor may regard

5 it as established for purposes of this section regardless of

6 the number of jurors who concur that the factor has been

7 established.

8 ‘‘(j) FINDING CONCERNING A SENTENCE OF

9 DEATH.—If the jury specially finds under subsection (i)

10 that one or more aggravating factors set forth in sub11 section (e) exist, and the jury further finds unanimously

12 that there are no mitigating factors or that the aggravat13 ing factor or factors specially found under subsection (i)

14 outweigh any mitigating factors, then the jury shall rec15 ommend a sentence of death. In any other case, the jury

16 shall not recommend a sentence of death. The jury shall

17 be instructed that it must avoid any influence of sym18 pathy, sentiment, passion, prejudice, or other arbitrary

19 factors in its decision, and should make such a rec20 ommendation as the information warrants.

21 ‘‘(k) SPECIAL PRECAUTION TO ASSURE AGAINST

22 DISCRIMINATION.—In a hearing held before a jury, the

23 court, before the return of a finding under subsection (j),

24 shall instruct the jury that, in considering whether to rec25 ommend a sentence of death, it shall not be influenced
17

•HR 4055 IH

1 by prejudice or bias relating to the race, color, religion,

2 national origin, or sex of the defendant or any victim, and

3 that the jury is not to recommend a sentence of death

4 unless it has concluded that it would recommend a sen5 tence of death for such a crime regardless of the race,

6 color, religion, national origin, or sex of the defendant or

7 any victim. The jury, upon the return of a finding under

8 subsection (j), shall also return to the court a certificate,

9 signed by each juror, that the race, color, religion, national

10 origin, or sex of the defendant or any victim did not affect

11 the juror’s individual decision and that the individual juror

12 would have recommended the same sentence for such a

13 crime regardless of the race, color, religion, national ori14 gin, or sex of the defendant or any victim.

15 ‘‘(l) IMPOSITION OF A SENTENCE OF DEATH.—Upon

16 a recommendation under subsection (j) that a sentence of

17 death be imposed, the court shall sentence the defendant

18 to death. Otherwise the court shall impose a sentence,

19 other than death, that is authorized by law.

20 ‘‘(m) REVIEW OF A SENTENCE OF DEATH.—The de21 fendant may appeal a sentence of death under this section

22 by filing a notice of appeal of the sentence within the time

23 provided for filing a notice of appeal of the judgment of

24 conviction. An appeal of a sentence under this subsection

25 may be consolidated with an appeal of the judgment of
18

•HR 4055 IH

1 conviction and shall have priority over all noncapital mat2 ters in the court of appeals. The court of appeals shall

3 review the entire record in the case including the evidence

4 submitted at trial and information submitted during the

5 sentencing hearing, the procedures employed in the sen6 tencing hearing, and the special findings returned under

7 subsection (i). The court of appeals shall uphold the sen8 tence if it determines that the sentence of death was not

9 imposed under the influence of passion, prejudice, or any

10 other arbitrary factor, that the evidence and information

11 support the special findings under subsection (i), and that

12 the proceedings were otherwise free of prejudicial error

13 that was properly preserved for and raised on appeal. In

14 any other case, the court of appeals shall remand the case

15 for reconsideration of the sentence or imposition of an16 other authorized sentence as appropriate, except that the

17 court shall not reverse a sentence of death on the ground

18 that an aggravating factor was not supported by the evi19 dence and information if at least one aggravating factor

20 set forth in subsection (e) which was found to exist re21 mains and the court, on the basis of the evidence submit22 ted at trial and the information submitted at the sentenc23 ing hearing, finds no mitigating factor or finds that the

24 remaining aggravating factor or factors which were found

25 to exist outweigh any mitigating factors. The court of ap-
19

•HR 4055 IH

1 peals shall state in writing the reasons for its disposition

2 of an appeal of a sentence of death under this section.

3 ‘‘(n) IMPLEMENTATION OF SENTENCE OF DEATH.—

4 A person sentenced to death under this section shall be

5 committed to the custody of the Attorney General until

6 exhaustion of the procedures for appeal of the judgment

7 of conviction and review of the sentence. When the sen8 tence is to be implemented, the Attorney General shall re9 lease the person sentenced to death to the custody of a

10 United States Marshal. The Marshal shall supervise im11 plementation of the sentence in the manner prescribed by

12 the law of the State in which the sentence is imposed, or

13 in the manner prescribed by the law of another State des14 ignated by the court if the law of the State in which the

15 sentence was imposed does not provide for implementation

16 of a sentence of death. The Marshal may use State or local

17 facilities, may use the services of an appropriate State or

18 local official or of a person such an official employs, and

19 shall pay the costs thereof in an amount approved by the

20 Attorney General.

21 ‘‘(o) SPECIAL BAR TO EXECUTION.—A sentence of

22 death shall not be carried out upon a woman while she

23 is pregnant.

24 ‘‘(p) CONSCIENTIOUS OBJECTION TO PARTICIPATION

25 IN EXECUTION.—No employee of any State department
20

•HR 4055 IH

1 of corrections, the Federal Bureau of Prisons, or the Unit2 ed States Marshals Service, and no person providing serv3 ices to that department, bureau, or service under contract

4 shall be required, as a condition of that employment or

5 contractual obligation, to be in attendance at or to partici6 pate in any execution carried out under this section if such

7 participation is contrary to the moral or religious convic8 tions of the employee. For purposes of this subsection, the

9 term ‘participate in any execution’ includes personal prep10 aration of the condemned individual and the apparatus

11 used for the execution, and supervision of the activities

12 of other personnel in carrying out such activities.

13 ‘‘(q) APPOINTMENT OF COUNSEL FOR INDIGENT

14 CAPITAL DEFENDANTS.—A defendant against whom a

15 sentence of death is sought, or on whom a sentence of

16 death has been imposed, under this section, shall be enti17 tled to appointment of counsel from the commencement

18 of trial proceedings until one of the conditions specified

19 in subsection (v) has occurred, if the defendant is or be20 comes financially unable to obtain adequate representa21 tion. Counsel shall be appointed for trial representation

22 as provided in section 3005 of this title, and at least one

23 counsel so appointed shall continue to represent the de24 fendant until the conclusion of direct review of the judg25 ment, unless replaced by the court with other qualified
21

•HR 4055 IH

1 counsel. Except as otherwise provided in this section, the

2 provisions of section 3006A of this title shall apply to ap3 pointments under this section.

4 ‘‘(r) REPRESENTATION AFTER FINALITY OF JUDG5 MENT.—When a judgment imposing a sentence of death

6 under this section has become final through affirmance by

7 the Supreme Court on direct review, denial of certiorari

8 by the Supreme Court on direct review, or expiration of

9 the time for seeking direct review in the court of appeals

10 or the Supreme Court, the government shall promptly no11 tify the court that imposed the sentence. The court, within

12 10 days of receipt of such notice, shall proceed to make

13 a determination whether the defendant is eligible for ap14 pointment of counsel for subsequent proceedings. The

15 court shall issue an order appointing one or more counsel

16 to represent the defendant upon a finding that the defend17 ant is financially unable to obtain adequate representation

18 and wishes to have counsel appointed or is unable com19 petently to decide whether to accept or reject appointment

20 of counsel. The court shall issue an order denying appoint21 ment of counsel upon a finding that the defendant is fi22 nancially able to obtain adequate representation or that

23 the defendant rejected appointment of counsel with an un24 derstanding of the consequences of that decision. Counsel

25 appointed pursuant to this subsection shall be different
22

•HR 4055 IH

1 from the counsel who represented the defendant at trial

2 and on direct review unless the defendant and counsel re3 quest a continuation or renewal of the earlier representa4 tion.

5 ‘‘(s) STANDARDS FOR COMPETENCE OF COUNSEL.—

6 In relation to a defendant who is entitled to appointment

7 of counsel under subsections (q)–(r), at least one counsel

8 appointed for trial representation must have been admit9 ted to the bar for at least 5 years and have at least three

10 years of experience in the trial of felony cases in the Fed11 eral district courts. If new counsel is appointed after judg12 ment, at least one counsel so appointed must have been

13 admitted to the bar for at least 5 years and have at least

14 3 years of experience in the litigation of felony cases in

15 the Federal courts of appeals or the Supreme Court. The

16 court, for good cause, may appoint counsel who does not

17 meet these standards, but whose background, knowledge,

18 or experience would otherwise enable him or her to prop19 erly represent the defendant, with due consideration of the

20 seriousness of the penalty and the nature of the litigation.

21 ‘‘(t) CLAIMS OF INEFFECTIVENESS OF COUNSEL IN

22 COLLATERAL PROCEEDINGS.—The ineffectiveness or in23 competence of counsel during proceedings on a motion

24 under section 2255 of title 28, United States Code, shall

25 not be a ground for relief from the judgment or sentence
23

•HR 4055 IH

1 in any proceeding. This limitation shall not preclude the

2 appointment of different counsel at any stage of the

3 proceedings.

4 ‘‘(u) TIME FOR COLLATERAL ATTACK ON DEATH

5 SENTENCE.—A motion under section 2255 of title 28,

6 United States Code, attacking a sentence of death under

7 this section, or the conviction on which it is predicated,

8 must be filed within 90 days of the issuance of the order

9 under subsection (r) appointing or denying the appoint10 ment of counsel for such proceedings. The court in which

11 the motion is filed, for good cause shown, may extend the

12 time for filing for a period not exceeding 60 days. Such

13 a motion shall have priority over all non-capital matters

14 in the district court, and in the court of appeals on review

15 of the district court’s decision.

16 ‘‘(v) STAY OF EXECUTION.—The execution of a sen17 tence of death under this section shall be stayed in the

18 course of direct review of the judgment and during the

19 litigation of an initial motion in the case under section

20 2255 of title 28, United States Code. The stay shall run

21 continuously following imposition of the sentence and shall

22 expire if—

23 ‘‘(1) the defendant fails to file a motion under

24 section 2255 of title 28, United States Code, within

25 the time specified in subsection (u), or fails to make
24

•HR 4055 IH

1 a timely application for court of appeals review fol2 lowing the denial of such a motion by a district

3 court;

4 ‘‘(2) upon completion of district court and court

5 of appeals review under section 2255 of title 28,

6 United States Code, the Supreme Court disposes of

7 a petition for certiorari in a manner that leaves the

8 capital sentence undisturbed, or the defendant fails

9 to file a timely petition for certiorari; or

10 ‘‘(3) before a district court, in the presence of

11 counsel and after having been advised of the con12 sequences of such a decision, the defendant waives

13 the right to file a motion under section 2255 of title

14 28, United States Code.

15 ‘‘(w) FINALITY OF THE DECISION ON REVIEW.—If

16 one of the conditions specified in subsection (v) has oc17 curred, no court thereafter shall have the authority to

18 enter a stay of execution or grant relief in the case un19 less—

20 ‘‘(1) the basis for the stay and request for relief

21 is a claim not presented in earlier proceedings;

22 ‘‘(2) the failure to raise the claim is the result

23 of governmental action in violation of the Constitu24 tion or laws of the United States, the result of the

25 Supreme Court’s recognition of a new Federal right
25

•HR 4055 IH

1 that is retroactively applicable, or the result of the

2 fact that the factual predicate of the claim could not

3 have been discovered through the exercise of reason4 able diligence in time to present the claim in earlier

5 proceedings; and

6 ‘‘(3) the facts underlying the claim would be

7 sufficient, if proven, to undermine the court’s con8 fidence in the determination of guilt on the offense

9 or offenses for which the death penalty was imposed.

10 ‘‘(x) DEFINITIONS.—For purposes of this section—

11 ‘‘(1) ‘crime of sexual assault’ means a crime

12 under Federal or State law that involved—

13 ‘‘(A) contact, without consent, between any

14 part of the defendant’s body or an object and

15 the genitals or anus of another person;

16 ‘‘(B) contact, without consent, between the

17 genitals or anus of the defendant and any part

18 of the body of another person;

19 ‘‘(C) deriving sexual pleasure or gratifi20 cation from the infliction of death, bodily in21 jury, or physical pain on another person; or

22 ‘‘(D) an attempt or conspiracy to engage

23 in any conduct described in paragraphs (A)–

24 (C);
26

•HR 4055 IH

1 ‘‘(2) ‘crime of child molestation’ means a crime

2 under Federal or State law that involved—

3 ‘‘(A) contact between any part of the de4 fendant’s body or an object and the genitals or

5 anus of a child;

6 ‘‘(B) contact between the genitals or anus

7 of the defendant and any part of the body of

8 a child;

9 ‘‘(C) deriving sexual pleasure or gratifi10 cation from the infliction of death, bodily in11 jury, or physical pain on a child; or

12 ‘‘(D) an attempt or conspiracy to engage

13 in any conduct described in paragraphs (A)–

14 (C); and

15 ‘‘(3) ‘child’ means a person below the age of

16 14.’’; and

17 (2) by adding the following at the end of the

18 table of sections for chapter 51:

‘‘1118. Capital punishment for murders committed by sex offenders.’’.

19 SEC. 303. INCREASED PENALTIES FOR RECIDIVIST SEX OF20 FENDERS.

21 (a) REDESIGNATION.—Section 2245 of title 18,

22 United States Code, is redesignated section 2246.

23 (b) PENALTIES.—Chapter 109A of title 18, United

24 States Code, is amended by inserting the following new

25 section after section 2244:
27

•HR 4055 IH

1 ‘‘§ 2245. Penalties for subsequent offenses

2 ‘‘Any person who violates this chapter after a prior

3 conviction under this chapter or the law of a State (as

4 defined in section 513 of this title) for conduct proscribed

5 by this chapter has become final is punishable by a term

6 of imprisonment up to twice that otherwise authorized.’’.

7 (c) CLERICAL AMENDMENT.—The table of sections

8 at the beginning of chapter 109A of title 18, United States

9 Code, is amended—

10 (1) by striking ‘‘2245’’ and inserting in lieu

11 thereof ‘‘2246’’; and

12 (2) by inserting after the item relating to sec13 tion 2244 the following:

‘‘2245. Penalties for subsequent offenses.’’.

14 SEC. 304. INCREASED PENALTIES FOR SEX OFFENSES

15 AGAINST VICTIMS BELOW THE AGE OF 16.

16 Paragraph (2) of section 2246 of title 18, United

17 States Code, as so redesignated by this Act, is amended—

18 (1) in subparagraph (B) by striking ‘‘or’’ after

19 the semicolon;

20 (2) in subparagraph (C) by striking ‘‘; and’’

21 and inserting in lieu thereof ‘‘; or’’; and

22 (3) by inserting a new subparagraph (D) as fol23 lows:

24 ‘‘(D) the intentional touching, not through

25 the clothing, of the genitalia of another person
28

•HR 4055 IH

1 who has not attained the age of 16 years with

2 an intent to abuse, humiliate, harass, degrade,

3 or arouse or gratify the sexual desire of any

4 person;’’.

5 SEC. 305. SENTENCING GUIDELINES INCREASE FOR SEX OF6 FENSES.

7 The United States Sentencing Commission shall

8 amend the sentencing guidelines to increase by at least

9 four levels the base offense level for an offense under sec10 tion 2241 (aggravated sexual abuse) or section 2242 (sex11 ual abuse) of title 18, United States Code, and shall con12 sider whether any other changes are warranted in the

13 guidelines provisions applicable to such offenses to ensure

14 realization of the objectives of sentencing. In amending the

15 guidelines in conformity with this section, the Sentencing

16 Commission shall review the appropriateness and ade17 quacy of existing offense characteristics and adjustments

18 applicable to such offenses, taking into account the hei19 nousness of sexual abuse offenses, the severity and dura20 tion of the harm caused to victims, and any other relevant

21 factors. In any subsequent amendment to the sentencing

22 guidelines, the Sentencing Commission shall maintain

23 minimum guidelines sentences for the offenses referenced

24 in this section which are at least equal to those required

25 by this section.
29

•HR 4055 IH

1 SEC. 306. HIV TESTING AND PENALTY ENHANCEMENT IN

2 SEXUAL OFFENSE CASES.

3 (a) IN GENERAL.—Chapter 109A of title 18, United

4 States Code, is amended by inserting at the end the follow5 ing new section:

6 ‘‘§ 2247. Testing for human immunodeficiency virus;

7 disclosure of test results to victim; effect

8 on penalty

9 ‘‘(a) TESTING AT TIME OF PRE-TRIAL RELEASE DE10 TERMINATION.—In a case in which a person is charged

11 with an offense under this chapter, a judicial officer issu12 ing an order pursuant to section 3142(a) of this title shall

13 include in the order a requirement that a test for the

14 human immunodeficiency virus be performed upon the

15 person, and that follow-up tests for the virus be performed

16 6 months and 12 months following the date of the initial

17 test, unless the judicial officer determines that the conduct

18 of the person created no risk of transmission of the virus

19 to the victim, and so states in the order. The order shall

20 direct that the initial test be performed within 24 hours,

21 or as soon thereafter as feasible. The person shall not be

22 released from custody until the test is performed.

23 ‘‘(b) TESTING AT LATER TIME.—If a person charged

24 with an offense under this chapter was not tested for the

25 human immunodeficiency virus pursuant to subsection (a),

26 the court may at a later time direct that such a test be
30

•HR 4055 IH

1 performed upon the person, and that follow-up tests be

2 performed 6 months and 12 months following the date of

3 the initial test, if it appears to the court that the conduct

4 of the person may have risked transmission of the virus

5 to the victim. A testing requirement under this subsection

6 may be imposed at any time while the charge is pending,

7 or following conviction at any time prior to the person’s

8 completion of service of the sentence.

9 ‘‘(c) TERMINATION OF TESTING REQUIREMENT.—A

10 requirement of follow-up testing imposed under this sec11 tion shall be canceled if any test is positive for the virus

12 or the person obtains an acquittal on, or dismissal of, all

13 charges under this chapter.

14 ‘‘(d) DISCLOSURE OF TEST RESULTS.—The results

15 of any test for the human immunodeficiency virus per16 formed pursuant to an order under this section shall be

17 provided to the judicial officer or court. The judicial offi18 cer or court shall ensure that the results are disclosed to

19 the victim (or to the victim’s parent or legal guardian, as

20 appropriate), the attorney for the government, and the

21 person tested.

22 ‘‘(e) EFFECT ON PENALTY.—The United States Sen23 tencing Commission shall amend existing guidelines for

24 sentences for offenses under this chapter to enhance the

25 sentence if the offender knew or had reason to know that
31

•HR 4055 IH

1 he was infected with the human immunodeficiency virus,

2 except where the offender did not engage or attempt to

3 engage in conduct creating a risk of transmission of the

4 virus to the victim.’’.

5 (b) CLERICAL AMENDMENT.—The table of sections

6 for chapter 109A of title 18, United States Code, is

7 amended by inserting at the end thereof the following new

8 item:

‘‘2247. Testing for human immunodeficiency virus; disclosure of test results to

victim; effect on penalty’’.

9 SEC. 307. ADMISSIBILITY OF EVIDENCE OF SIMILAR

10 CRIMES IN SEX OFFENSE CASES.

11 (a) IN GENERAL.—Article IV of the Federal Rules

12 of Evidence is amended by adding after Rule 412 the

13 following new rules:

14 ‘‘Rule 413. Evidence of Similar Crimes in Sexual As15 sault Cases

16 ‘‘(a) In a criminal case in which the defendant is ac17 cused of an offense of sexual assault, evidence of the de18 fendant’s commission of another offense or offenses of sex19 ual assault is admissible, and may be considered for its

20 bearing on any matter to which it is relevant.

21 ‘‘(b) In a case in which the government intends to

22 offer evidence under this Rule, the attorney for the govern23 ment shall disclose the evidence to the defendant, includ24 ing statements of witnesses or a summary of the substance
32

•HR 4055 IH

1 of any testimony that is expected to be offered, at least

2 fifteen days before the scheduled date of trial or at such

3 later time as the court may allow for good cause.

4 ‘‘(c) This Rule shall not be construed to limit the ad5 mission or consideration of evidence under any other Rule.

6 ‘‘(d) For purposes of this Rule and Rule 415, ‘offense

7 of sexual assault’ means a crime under Federal law or the

8 law of a State (as defined in section 513 of title 18, United

9 States Code) that involved—

10 ‘‘(1) any conduct proscribed by chapter 109A of

11 title 18, United States Code;

12 ‘‘(2) contact, without consent, between any part

13 of the defendant’s body or an object and the genitals

14 or anus of another person;

15 ‘‘(3) contact, without consent, between the geni16 tals or anus of the defendant and any part of an17 other person’s body;

18 ‘‘(4) deriving sexual pleasure or gratification

19 from the infliction of death, bodily injury, or phys20 ical pain on another person; or

21 ‘‘(5) an attempt or conspiracy to engage in con22 duct described in paragraphs (1)–(4).
33

•HR 4055 IH

1 ‘‘Rule 414. Evidence of Similar Crimes in Child Mo2 lestation Cases

3 ‘‘(a) In a criminal case in which the defendant is ac4 cused of an offense of child molestation, evidence of the

5 defendant’s commission of another offense or offenses of

6 child molestation is admissible, and may be considered for

7 its bearing on any matter to which it is relevant.

8 ‘‘(b) In a case in which the government intends to

9 offer evidence under this Rule, the attorney for the govern10 ment shall disclose the evidence to the defendant, includ11 ing statements of witnesses or a summary of the substance

12 of any testimony that is expected to be offered, at least

13 fifteen days before the scheduled date of trial or at such

14 later time as the court may allow for good cause.

15 ‘‘(c) This Rule shall not be construed to limit the ad16 mission or consideration of evidence under any other Rule.

17 ‘‘(d) For purposes of this Rule and Rule 415, the

18 term ‘child’ means a person below the age of 14 years,

19 and the term ‘offense of child molestation’ means a crime

20 under Federal law or the law of a State (as defined in

21 section 513 of title 18, United States Code) that in22 volved—

23 ‘‘(1) any conduct proscribed by chapter 109A of

24 title 18, United States Code, that was committed in

25 relation to a child;
34

•HR 4055 IH

1 ‘‘(2) any conduct proscribed by chapter 110 of

2 title 18, United States Code;

3 ‘‘(3) contact between any part of the defend4 ant’s body or an object and the genitals or anus of

5 a child;

6 ‘‘(4) contact between the genitals or anus of the

7 defendant and any part of the body of a child;

8 ‘‘(5) deriving sexual pleasure or gratification

9 from the infliction of death, bodily injury, or phys10 ical pain on a child; or

11 ‘‘(6) an attempt or conspiracy to engage in con12 duct described in paragraphs (1)–(5).

13 ‘‘Rule 415. Evidence of Similar Acts in Civil Cases

14 Concerning Sexual Assault or Child Mo15 lestation

16 ‘‘(a) In a civil case in which a claim for damages or

17 other relief is predicated on a party’s alleged commission

18 of conduct constituting an offense of sexual assault or

19 child molestation, evidence of that party’s commission of

20 another offense or offenses of sexual assault or child mo21 lestation is admissible and may be considered as provided

22 in Rule 413 and Rule 414 of these Rules.

23 ‘‘(b) A party who intends to offer evidence under this

24 Rule shall disclose the evidence to the party against whom

25 it will be offered, including statements of witnesses or a
35

•HR 4055 IH

1 summary of the substance of any testimony that is ex2 pected to be offered, at least 15 days before the scheduled

3 date of trial or at such later time as the court may allow

4 for good cause.

5 ‘‘(c) This Rule shall not be construed to limit the ad6 mission or consideration of evidence under any other

7 Rule.’’.

8 (b) CLERICAL AMENDMENT.—The table of contents

9 for the Federal Rules of Evidence is amended by adding

10 at the end of the items relating to Article IV the following:

‘‘Rule 413. Evidence of similar crimes in sexual assault cases

‘‘Rule 414. Evidence of similar crimes in child molestation cases

‘‘Rule 415. Evidence of similar acts in civil cases concerning sexual assault or

child molestation’’.

11 SEC. 308. INTERSTATE TRAVEL TO COMMIT SPOUSE ABUSE

12 OR TO VIOLATE PROTECTIVE ORDER; INTER13 STATE STALKING.

14 (a) OFFENSE.—Part I of title 18, United States

15 Code, is amended by inserting after chapter 110 the

16 following:

17 ‘‘CHAPTER 110A—DOMESTIC VIOLENCE AND

18 STALKING

‘‘Sec.

‘‘2261. Domestic violence and stalking.

19 ‘‘§ 2261. Domestic violence and stalking

20 ‘‘(a) OFFENSE.—Whoever causes or attempts to

21 cause bodily injury to, engages in sexual abuse against,
36

•HR 4055 IH

1 or violates a protective order in relation to, another shall

2 be punished—

3 ‘‘(1) if death results, by death or by imprison4 ment for any term of years or for life;

5 ‘‘(2) if permanent disfigurement or life-threat6 ening bodily injury results, by imprisonment for not

7 more than 20 years;

8 ‘‘(3) if serious bodily injury results, or if a fire9 arm, knife, or other dangerous weapon is possessed,

10 carried, or used during the commission of the of11 fense, by imprisonment for not more than 10 years;

12 and

13 ‘‘(4) in any other case, by imprisonment for not

14 more than five years.

15 If, however, the defendant engages in sexual abuse and

16 the penalty authorized for such conduct under chapter

17 109A exceeds the penalty which would otherwise be au18 thorized under this subsection, then the penalty authorized

19 for such conduct under chapter 109A shall apply.

20 ‘‘(b) MANDATORY PENALTIES.—A sentence under

21 this section shall include at least 3 months of imprison22 ment if the offense involves the infliction of bodily injury

23 on or the commission of sexual abuse against the victim.

24 A sentence under this section shall include at least 6

25 months of imprisonment if the offense involves the viola-
37

•HR 4055 IH

1 tion of a protective order and the defendant has previously

2 violated a protective order in relation to the same victim.

3 ‘‘(c) JURISDICTION.—There is Federal jurisdiction to

4 prosecute an offense under this section if the defendant

5 traveled in interstate or foreign commerce, or transported

6 or caused another to move in interstate or foreign com7 merce, with the intention of committing or in furtherance

8 of committing the offense, and—

9 ‘‘(1) the victim was a spouse or former spouse

10 of the defendant, was cohabiting with or had

11 cohabited with the defendant, or had a child in com12 mon with the defendant; or

13 ‘‘(2) the defendant on two or more occasions—

14 ‘‘(A) has caused or attempted or threat15 ened to cause death or serious bodily injury to

16 or engaged in sexual abuse in relation to the

17 victim; or

18 ‘‘(B) has engaged in any conduct that

19 caused or was intended to cause apprehension

20 by the victim that the victim would be subjected

21 to death, serious bodily injury, or sexual abuse.

22 ‘‘(d) DEFINITIONS.—For purposes of this section—

23 ‘‘(1) ‘protective order’ means an order issued by

24 a court of a State prohibiting or limiting violence
38

•HR 4055 IH

1 against, harassment of, contact or communication

2 with, or physical proximity to another person;

3 ‘‘(2) ‘sexual abuse’ means any conduct pro4 scribed by chapter 109A of this title, whether or not

5 the conduct occurs in the special maritime and terri6 torial jurisdiction of the United States or in a Fed7 eral prison;

8 ‘‘(3) ‘serious bodily injury’ and ‘bodily injury’

9 have the meanings given in section 1365(g); and

10 ‘‘(4) ‘State’ has the meaning given in section

11 513(c)(5).’’.

12 (b) CLERICAL AMENDMENT.—The table of chapters

13 at the beginning of part I of title 18, United States Code,

14 is amended by inserting after the item for chapter 110

15 the following:

‘‘110A. Domestic violence and stalking ..................................... 2261’’.

16 (c) MANDATORY RESTITUTION.—Section 3663 of

17 title 18, United States Code is amended by striking ‘‘or

18 chapter 110’’ and inserting ‘‘, chapter 110, or section

19 2261’’ in each of subsections (b)(2) and (d).

20 (d) INTERIM PROTECTION.—Section 3156(a)(4)(C)

21 of title 18, United States Code, as added by section 301

22 of this Act, is amended by striking ‘‘or chapter 110’’ and

23 inserting ‘‘, chapter 110, or section 2261’’.

24 (e) DEATH PENALTY PROCEDURES.—Section 1118

25 of title 18, United States Code, as added by section 302
39

•HR 4055 IH

1 of this Act, is amended in paragraph (1) of subsection (e)

2 by inserting ‘‘or section 2261’’ after ‘‘117’’.

3 SEC. 309. FULL FAITH AND CREDIT FOR PROTECTIVE OR4 DERS.

5 (a) REQUIREMENT OF FULL FAITH AND CREDIT.—

6 Chapter 110A of title 18, United States Code, as enacted

7 by section 308 of this Act, is amended by adding at the

8 end the following:

9 ‘‘§ 2262. Full faith and credit for protective orders

10 ‘‘(a) A protective order issued by a court of a State

11 shall have the same full faith and credit in a court in an12 other State that it would have in a court of the State in

13 which issued, and shall be enforced by the courts of any

14 State as if it were issued in that State.

15 ‘‘(b) For purposes of this section—

16 ‘‘(1) ‘protective order’ means an order prohibit17 ing or limiting violence against, harassment of, con18 tact or communication with, or physical proximity to

19 another person; and

20 ‘‘(2) ‘State’ has the meaning given in section

21 513(c)(5).’’.

22 (b) CLERICAL AMENDMENT.—The table of sections

23 at the beginning of chapter 110A of title 18, United States

24 Code, as enacted by section 308 of this Act, is amended

25 by inserting at the end the following:

‘‘2262. Full faith and credit for protective orders.’’.
40

•HR 4055 IH

1 SEC. 310. PRESUMPTION AGAINST CHILD CUSTODY FOR

2 SPOUSE ABUSERS.

3 (a) The Congress finds that—

4 (1) courts fail to recognize the detrimental ef5 fects of having as a custodial parent an individual

6 who physically abuses his or her spouse, insofar as

7 they do not hear or weigh evidence of domestic vio8 lence in child custody litigation;

9 (2) joint custody forced upon hostile parents

10 can create a damaging psychological environment for

11 a child;

12 (3) physical abuse of a spouse is relevant to the

13 likelihood of child abuse in child custody disputes;

14 (4) the effects on children of physical abuse of

15 a spouse include—

16 (A) traumatization and psychological dam17 age to children resulting from observation of

18 the abuse and the climate of violence and fear

19 existing in a home where abuse takes place;

20 (B) the risk that children may become tar21 gets of physical abuse when they attempt to in22 tervene on behalf of an abused parent; and

23 (C) the negative effects on children of ex24 posure to an inappropriate role model, in that

25 witnessing an aggressive parent may commu-
41

•HR 4055 IH

1 nicate to children that violence is an acceptable

2 means of dealing with others; and

3 (5) the harm to children from spouse abuse

4 may be compounded by award of exclusive or joint

5 custody to an abuser because further abuse may

6 occur when the abused spouse is forced to have con7 tact with the abuser as a result of the custody ar8 rangement, and because the child or children may be

9 exposed to abuse committed by the abuser against a

10 subsequent spouse or partner.

11 (b) SENSE OF CONGRESS.—It is the sense of the

12 Congress that, for purposes of determining child custody,

13 evidence establishing that a parent engages in physical

14 abuse of a spouse should create a statutory presumption

15 that it is detrimental to the child to be placed in the cus16 tody of the abusive spouse.

17 TITLE IV—IMMIGRATION AND

18 ASYLUM REFORM

19 SEC. 401. INSPECTION AND EXCLUSION BY IMMIGRATION

20 OFFICERS.

21 (a) IN GENERAL.—Section 235(b) of the Immigra22 tion and Nationality Act (8 U.S.C. 1225(b)) is amended

23 to read as follows:

24 ‘‘(b)(1) An immigration officer shall inspect each

25 alien who is seeking entry to the United States.
42

•HR 4055 IH

1 ‘‘(2)(A) If the examining immigration officer deter2 mines that an alien seeking entry—

3 ‘‘(i) does not present the documentation re4 quired (if any) to obtain legal entry to the United

5 States; and

6 ‘‘(ii) does not indicate either an intention to

7 apply for provisional asylum (under section 208) or

8 a fear of persecution,

9 the officer shall order the alien excluded from the United

10 States without further hearing or review.

11 ‘‘(B) The examining immigration officer shall refer

12 for immediate inspection at the port of entry by an asylum

13 officer under subparagraph (C) any alien who (i) does not

14 present the documentation required (if any) to obtain legal

15 entry to the United States, and (ii) has indicated an inten16 tion to apply for provisional asylum or a fear of persecu17 tion.

18 ‘‘(C)(i) If an asylum officer determines that an alien

19 has a credible fear of persecution, the alien shall be enti20 tled to apply for provisional asylum under section 208.

21 ‘‘(ii)(I) Subject to subclause (II), if an asylum officer

22 determines that an alien does not have a credible fear of

23 persecution the officer shall order the alien excluded from

24 the United States without further hearing or review.
43

•HR 4055 IH

1 ‘‘(II) The Attorney General shall promulgate regula2 tions to provide for the immediate review by another asy3 lum officer at the port of entry of a decision under

4 subclause (I).

5 ‘‘(iii) For the purposes of this subparagraph, the

6 term ‘credible fear of persecution’ means (I) that it is

7 more probable than not that the statements made by the

8 alien in support of his or her claim are true, and (II) that

9 there is a significant possibility, in light of such state10 ments and of such other facts as are known to the officer

11 that the alien could establish eligibility for provisional asy12 lum under section 208.

13 ‘‘(iv) Notwithstanding any other provision of law, no

14 court shall have jurisdiction to review, except by petition

15 for habeas corpus, any determination made with respect

16 to an alien found excludable pursuant to this paragraph.

17 In any such case, review by habeas corpus shall be limited

18 to examination of whether the petitioner (I) is an alien,

19 and (II) was ordered excluded from the United States pur20 suant to this paragraph.

21 ‘‘(3)(A) Except as provided in subparagraph (B), if

22 the examining immigration officer determines that an

23 alien seeking entry is not clearly and beyond a doubt enti24 tled to enter, the alien shall be detained for a hearing be25 fore a special inquiry officer.
44

•HR 4055 IH

1 ‘‘(B) The provisions of subparagraph (A) shall not

2 apply—

3 ‘‘(i) to an alien crewman,

4 ‘‘(ii) to an alien described in paragraph (2)(A)

5 or 2(C)(ii)(I), or

6 ‘‘(iii) if the conditions described in section

7 273(d) exist.

8 ‘‘(4) The decision of the examining immigration offi9 cer, if favorable to the admission of any alien, shall be

10 subject to challenge by any other immigration officer and

11 such challenge shall operate to take the alien, whose privi12 lege to enter is so challenged, before a special inquiry offi13 cer for a hearing on exclusion of the alien.

14 ‘‘(5)(A) Subject to subparagraph (B), an alien has

15 not entered the United States for purposes of this Act un16 less and until such alien has been inspected and admitted

17 by an immigration officer pursuant to this subsection.

18 ‘‘(B) An alien who (i) is physically present in the

19 United States, (ii) has been physically present in the Unit20 ed States for a continuous period of one year, and (iii)

21 has not been inspected and admitted by an immigration

22 officer shall be deemed to have entered the United States

23 without inspection.’’.
45

•HR 4055 IH

1 (b) CONFORMING AMENDMENTS.—Section 237(a) of

2 the Immigration and Nationality Act (8 U.S.C. 1227(a))

3 is amended—

4 (1) in the second sentence of paragraph (1) by

5 striking ‘‘Deportation’’ and inserting ‘‘Subject to

6 section 235(b)(2), deportation’’; and

7 (2) in the first sentence of paragraph (2) by

8 striking ‘‘If’’ and inserting ‘‘Subject to section

9 235(b)(2), if’’.

10 SEC. 402. ENHANCED PENALTIES FOR ALIEN SMUGGLING.

11 (a) ADDITIONAL CRIMINAL PENALTY.—Section

12 274(a)(1) of the Immigration and Nationality Act (8

13 U.S.C. 1324(a)(1)) is amended—

14 (1) by striking ‘‘or’’ at the end of subparagraph

15 (C),

16 (2) by striking the comma at the end of sub17 paragraph (D) and inserting ‘‘; or’’,

18 (3) by inserting after subparagraph (D) the fol19 lowing:

20 ‘‘(E) contracts or agrees with another party for

21 that party to provide, for employment by the person

22 or another, an alien who is not authorized to be em23 ployed in the United States, knowing that such

24 party intends to cause such alien to be brought into
46

•HR 4055 IH

1 the United States in violation of the laws of the

2 United States,’’, and

3 (4) by striking ‘‘shall be fined’’ and all that fol4 lows and inserting the following: ‘‘shall, for each

5 alien in respect to whom any violation of this para6 graph occurs, be fined in accordance with title 18,

7 United States Code, imprisoned not more than 5

8 years (or 10 years in the case of a violation of sub9 paragraph (A) or (E)), or 20 years if during and in

10 relation to the violation the person causes serious

11 bodily injury (as defined in section 1365 of title 18,

12 United States Code) to, or places in jeopardy the life

13 of, any alien, or for any term of years up to life if

14 during and in relation to the violation the person

15 causes the death of any alien, or both.’’.

16 (b) TREATMENT OF SMUGGLING AS AN AGGRAVATED

17 FELONY.—The first sentence of section 101(a)(43) of the

18 Immigration and Nationality Act (8 U.S.C. 1101(a)(43))

19 is amended by inserting ‘‘or any offense under section

20 274(a)’’ before ‘‘for which the term of imprisonment’’ the

21 first place it appears.
47

•HR 4055 IH

1 SEC. 403. EXPANDED FORFEITURE FOR SMUGGLING OR

2 HARBORING ILLEGAL ALIENS.

3 (a) IN GENERAL.—Paragraph (1) of section 274(b)

4 of the Immigration and Nationality Act (8 U.S.C.

5 1324(b)) is amended to read as follows:

6 ‘‘(1)(A) Except as provided in subparagraph (B),

7 the following property shall be subject to seizure and

8 forfeiture:

9 ‘‘(i) Any conveyance, including any vessel, vehi10 cle, or aircraft, which has been or is being used in

11 the commission of a violation of subsection (a).

12 ‘‘(ii) Any property, real or personal, which—

13 ‘‘(I) constitutes, or is derived from or

14 traceable to, the proceeds obtained directly or

15 indirectly from the commission of a violation of

16 subsection (a), or

17 ‘‘(II) is used to facilitate, or is intended to

18 be so used in the commission of, a violation of

19 subsection (a)(1)(A).

20 ‘‘(B)(i) No property used by any person as a common

21 carrier in the transaction of business as a common carrier

22 shall be forfeited under this section, unless the owner or

23 other person with lawful custody of the property was a

24 consenting party to or privy to the violation of subsection

25 (a) or of section 274A(a)(1) or 274A(a)(2).
48

•HR 4055 IH

1 ‘‘(ii) No property shall be forfeited under the provi2 sions of this section by reason of any act or omission es3 tablished by the owner to have been committed or omitted

4 by a person other than the owner while the property was

5 unlawfully in the possession of a person other than the

6 owner in violation of the criminal laws of the United

7 States or of any State.

8 ‘‘(iii) No property shall be forfeited under the provi9 sions of this section to the extent of an interest of the

10 owner, by reason of any act or omission established by

11 the owner to have been committed or omitted without the

12 knowledge, consent, or willful blindness of the owner, un13 less the act or omission was committed or omitted by an

14 employee or agent of the owner or other person with lawful

15 custody of the property with the intent of furthering the

16 business interests of, or to confer any other benefit upon,

17 the owner or other person with lawful custody of the prop18 erty.’’.

19 (b) CONFORMING AMENDMENTS.—Section 274(b) of

20 such Act (8 U.S.C. 1324(b)) is amended—

21 (1) in paragraph (2)—

22 (A) by striking ‘‘conveyance’’ and inserting

23 ‘‘property’’ each place it appears, and

24 (B) by striking ‘‘is being used in’’ and in25 serting ‘‘is being used in, is facilitating, has fa-
49

•HR 4055 IH

1 cilitated, is facilitating or was intended to facili2 tate’’; and

3 (2) in paragraphs (4) and (5), by striking ‘‘a

4 conveyance’’, ‘‘any conveyance’’, and ‘‘conveyance’’

5 and inserting ‘‘property’’ each place it appears.

6 SEC. 404. INCLUDING ALIEN SMUGGLING AS A RACKETEER7 ING ACTIVITY FOR PURPOSES OF RACK8 ETEERING INFLUENCED AND CORRUPT OR9 GANIZATIONS (RICO) ENFORCEMENT AU10 THORITY.

11 Section 1961(1) of title 18, United States Code, is

12 amended—

13 (1) by striking ‘‘or’’ before ‘‘(E) any act’’, and

14 (2) by inserting before the semicolon at the end

15 the following: ‘‘, or (F) any act which is indictable

16 under section 274(a)(1) of the Immigration and Na17 tionality Act (relating to alien smuggling)’’.

18 SEC. 405. EFFECTIVE DATES.

19 (a) IN GENERAL.—Except as otherwise provided, the

20 amendments made by this title shall take effect on the

21 date of the enactment of this Act and shall apply to aliens

22 who arrive in or seek admission to the United States on

23 or after such date.

24 (b) SMUGGLING.—The amendment made by section

25 102(b) shall apply to offenses for which convictions are
50

•HR 4055 IH

1 entered before, on, or after the date of the enactment of

2 this Act.

3 (c) INTERIM REFERENCE TO PROVISIONAL ASY4 LUM.—Any reference in section 235(b)(2) of the Immigra5 tion and Nationality Act (as amended by section 101(a)

6 of this Act) to provisional asylum under section 208 of

7 the Immigration and Nationality Act shall be deemed, be8 fore the effective date of the amendment made by section

9 201(a), to be a reference to asylum under section 208 of

10 such Act.

11 SEC. 406. ASYLUM.

12 (a) IN GENERAL.—Section 208 (8 U.S.C. 1158) of

13 the Immigration and Nationality Act is amended to read

14 as follows:

15 ‘‘ASYLUM

16 ‘‘SEC. 208. (a) PROVISIONAL ASYLUM.—

17 ‘‘(1) RIGHT TO APPLY.—An alien physically

18 present in the United States or at a land border or

19 port of entry, irrespective of such alien’s status, may

20 apply for provisional asylum in accordance with this

21 section.

22 ‘‘(2) CONDITIONS FOR GRANTING.—

23 ‘‘(A) MANDATORY CASES.—The Attorney

24 General shall grant provisional asylum to an

25 alien if the alien applies for provisional asylum

26 in accordance with the requirements of this sec-
51

•HR 4055 IH

1 tion and establishes that it is more likely than

2 not that in the alien’s country of nationality

3 (or, in the case of a person having no national4 ity, the country in which such alien last habit5 ually resided) such alien’s life or freedom would

6 be threatened on account of race, religion, na7 tionality, membership in a particular social

8 group, or political opinion.

9 ‘‘(B) DISCRETIONARY CASES.—The Attor10 ney General may grant provisional asylum to an

11 alien if the alien applies for provisional asylum

12 in accordance with the requirements of this sec13 tion and establishes that the alien is a refugee

14 within the meaning of section 101(a)(42).

15 ‘‘(C) EXCEPTIONS.—(i) Subparagraphs

16 (A) and (B) shall not apply to an alien if the

17 Attorney General determines that—

18 ‘‘(I) the alien ordered, incited, as19 sisted, or otherwise participated in the per20 secution of any person on account of race,

21 religion, nationality, membership in a par22 ticular social group, or political opinion;

23 ‘‘(II) the alien, having been convicted

24 by a final judgment of a particularly seri-
52

•HR 4055 IH

1 ous crime, constitutes a danger to the com2 munity of the United States;

3 ‘‘(III) there are serious reasons for

4 believing that the alien has committed a

5 serious nonpolitical crime outside the

6 United States prior to the arrival of the

7 alien in the United States;

8 ‘‘(IV) there are reasonable grounds

9 for regarding the alien as a danger to the

10 security of the United States; or

11 ‘‘(V) a country willing to accept the

12 alien has been identified (other than the

13 country described in subparagraph (A)) to

14 which the alien can be deported or re15 turned and the alien does not establish

16 that it is more likely than not that the

17 alien’s life or freedom would be threatened

18 in such country on account of race, reli19 gion, nationality, membership in a particu20 lar social group, or political opinion.

21 ‘‘(ii)(I) For purposes of clause (i)(II), an

22 alien who has been convicted of an aggravated

23 felony shall be considered to have committed a

24 particularly serious crime.
53

•HR 4055 IH

1 ‘‘(II) The Attorney General shall promul2 gate regulations that specify additional crimes

3 that will be considered to be a crime described

4 in clause (i)(II) or (i)(III).

5 ‘‘(III) The Attorney General shall promul6 gate regulations establishing such additional

7 limitations and conditions as the Attorney Gen8 eral considers appropriate under which an alien

9 shall be ineligible to apply for provisional asy10 lum under subparagraph (B).

11 ‘‘(3) PROVISIONAL ASYLUM STATUS.—In the

12 case of any alien granted provisional asylum under

13 paragraph (2), the Attorney General, in accordance

14 with this section—

15 ‘‘(A) shall not deport or return the alien to

16 the country described under paragraph (2)(A);

17 ‘‘(B) shall authorize the alien to engage in

18 employment in the United States and provide

19 the alien with an ‘employment authorized’ en20 dorsement or other appropriate work permit;

21 and

22 ‘‘(C) may allow the alien to travel abroad

23 with the prior consent of the Attorney General.

24 ‘‘(4) TERMINATION.—Provisional asylum grant25 ed under paragraph (2) may be terminated if the At-
54

•HR 4055 IH

1 torney General, pursuant to such regulations as the

2 Attorney General may prescribe, determines that—

3 ‘‘(A) the alien no longer meets the condi4 tions described in paragraph (2) owing to a

5 change in circumstances in the alien’s country

6 of nationality or, in the case of an alien having

7 no nationality, in the country in which the alien

8 last habitually resided;

9 ‘‘(B) the alien meets a condition described

10 in paragraph (2)(C); or

11 ‘‘(C) a country willing to accept the alien

12 has been identified (other than the country de13 scribed in paragraph (2)) to which the alien can

14 be deported or returned and the alien cannot

15 establish that it is more likely than not that the

16 alien’s life or freedom would be threatened in

17 such country on account of race, religion, na18 tionality, membership in a particular social

19 group, or political opinion.

20 ‘‘(5) ACCEPTANCE BY ANOTHER COUNTRY.—In

21 the case of an alien described in paragraph

22 (2)(C)(i)(V) or paragraph (4)(C), the alien’s depor23 tation or return shall be directed by the Attorney

24 General in the sole discretion of the Attorney Gen25 eral, to any country which is willing to accept the
55

•HR 4055 IH

1 alien into its territory (other than the country de2 scribed in paragraph (2)).

3 ‘‘(b) PROVISIONAL ASYLUM PROCEDURE.—

4 ‘‘(1) APPLICATIONS.—

5 ‘‘(A) IN GENERAL.—

6 ‘‘(i) DEADLINE.—Subject to clause

7 (ii), an alien’s application for provisional

8 asylum shall not be considered under this

9 section unless—

10 ‘‘(I) the alien has filed, not later

11 than 30 days after entering or coming

12 to the United States, notice of inten13 tion to file such an application, and

14 ‘‘(II) such application is actually

15 filed not later than 60 days after en16 tering or coming to the United States.

17 ‘‘(ii) EXCEPTION.—An application for

18 provisional asylum may be considered, not19 withstanding that the requirements of

20 clause (i) have not been met, only if the

21 alien demonstrates by clear and convincing

22 evidence changed circumstances in the

23 alien’s country of nationality (or in the

24 case of an alien with no nationality, in the

25 country where the alien last habitually re-
56

•HR 4055 IH

1 sided) affecting eligibility for provisional

2 asylum.

3 ‘‘(B) REQUIREMENTS.—An application for

4 provisional asylum shall not be considered un5 less the alien submits to the taking of finger6 prints and a photograph in a manner deter7 mined by the Attorney General.

8 ‘‘(C) FEES.—In the discretion of the At9 torney General, the Attorney General may im10 pose reasonable fees for the consideration of an

11 application for provisional asylum, for employ12 ment authorization under this section, and for

13 adjustment of status under section 209(b). The

14 Attorney General is authorized to provide for

15 the assessment and payment of any such fee

16 over a period of time or by installments.

17 ‘‘(D) NOTICE OF PRIVILEGE OF COUNSEL

18 AND CONSEQUENCES OF FRIVOLOUS APPLICA19 TION.—

20 ‘‘(i) NOTICE.—At the time of filing a

21 notice of intention to apply for provisional

22 asylum, the alien shall be advised of the

23 privilege of being represented by counsel

24 (as provided under paragraph (2)(D)) and

25 of the consequences, under subsection (d),
57

•HR 4055 IH

1 of filing a frivolous application for provi2 sional asylum.

3 ‘‘(ii) PROVISION OF LIST OF COUN4 SEL.—The Attorney General shall provide

5 for lists (updated not less often than quar6 terly) of persons who have indicated their

7 availability to represent pro bono aliens in

8 provisional asylum proceedings. Such lists

9 shall be provided to the alien at the time

10 of filing of notice of intention to apply for

11 provisional asylum, and otherwise be made

12 generally available.

13 ‘‘(2) CONSIDERATION OF APPLICATIONS; HEAR14 INGS.—

15 ‘‘(A) ASYLUM OFFICERS.—Applications for

16 provisional asylum shall be considered by offi17 cers of the Service (referred to in this Act as

18 ‘asylum officers’) who are specially designated

19 by the Service as having special training and

20 knowledge of international conditions and

21 human rights records of foreign countries.

22 Pending the designation of such officers, individuals who

23 as of the date of the enactment of the Immigration En24 forcement and Asylum Reform Act of 1993 are authorized
58

•HR 4055 IH

1 to perform duties as asylum officers shall be deemed to

2 be qualified to be asylum officers for purposes of this Act.

3 ‘‘(B) SCHEDULING OF HEARINGS.—

4 ‘‘(i) IN GENERAL.—Upon the filing of

5 an application for provisional asylum, an

6 asylum officer, at the earliest practicable

7 time and after consultation with the attor8 ney for the Government and the attorney

9 (if any) for the applicant, shall set the ap10 plication for hearing on a day certain or

11 list it on a weekly or other short-term cal12 endar, so as to assure a speedy hearing.

13 ‘‘(ii) DEADLINE.—Unless the appli14 cant (or an attorney for the applicant) con15 sents in writing to the contrary, the hear16 ing on the provisional asylum application

17 shall commence not later than 45 days

18 after the date the application was filed.

19 ‘‘(C) PUBLIC HEARINGS.—A hearing on a

20 provisional asylum application shall be open to

21 the public unless the applicant requests that it

22 be closed to the public.

23 ‘‘(D) PRIVILEGE OF COUNSEL.—The alien

24 shall have the privilege of being represented by

25 such counsel (at no expense to the government),
59

•HR 4055 IH

1 authorized to practice in such proceedings, as

2 the alien shall choose. Such representation may

3 not cause undue delay in the proceedings. The

4 Attorney General, in the discretion of the Attor5 ney General, shall provide standards by regula6 tion for determinations of undue delay.

7 ‘‘(E) RIGHTS IN HEARINGS.—The officer

8 shall conduct the hearing in a nonadversarial

9 manner. During such hearing, the applicant

10 shall have the privilege of the assistance and

11 participation of counsel and shall be entitled to

12 present evidence and witnesses, to examine and

13 object to evidence presented by the Government,

14 and to cross-examine all witnesses presented by

15 the Government.

16 ‘‘(F) COUNTRY CONDITIONS.—

17 ‘‘(i) The Secretary of State shall pro18 vide information regarding country condi19 tions to the Attorney General to be in20 cluded, along with information from other

21 reliable sources, in the collections of the

22 asylum resource information center of the

23 Immigration and Naturalization Service.

24 ‘‘(ii) An officer may request informa25 tion regarding country conditions from the
60

•HR 4055 IH

1 asylum resource information center of the

2 Immigration and Naturalization Service

3 and from the Secretary of State, but may

4 not request or consider recommendations

5 from the Secretary of State as to whether

6 a particular named individual should or

7 should not be granted provisional asylum.

8 ‘‘(G) TRANSCRIPT OF HEARINGS.—A com9 plete record of the proceedings and of all testi10 mony and evidence produced at the hearing

11 shall be kept. The hearing shall be recorded

12 verbatim. The Attorney General and the Service

13 shall provide that a transcript of a hearing held

14 under this section is made available not later

15 than 10 days after the date of completion of the

16 hearing.

17 ‘‘(H) DEADLINE FOR DETERMINATIONS ON

18 APPLICATIONS.—The officer shall render a de19 termination on the application not later than 30

20 days after the date of completion of the hear21 ing. The determination of the officer shall be

22 based only on the evidence produced at the

23 hearing or on information which is the subject

24 of official notice with respect to country condi25 tions.
61

•HR 4055 IH

1 ‘‘(I) RESOURCE ALLOCATION.—The Attor2 ney General shall allocate sufficient resources

3 so as to assure that applications for provisional

4 asylum are heard and determined on a timely

5 basis. However, nothing in this paragraph relat6 ing to scheduling or deadlines shall be con7 strued as creating any right or benefit, sub8 stantive or procedural, which is legally enforce9 able by any party against the United States, its

10 agencies, its officers, or any other person.

11 ‘‘(J) SANCTIONS FOR FAILURE TO AP12 PEAR.—

13 ‘‘(i) Subject to clause (ii), the applica14 tion for provisional asylum of an alien who

15 does not appear for a hearing on such ap16 plication shall be summarily dismissed un17 less the alien can show exceptional cir18 cumstances (as defined in section

19 242B(f)(2)) as determined by the asylum

20 officer.

21 ‘‘(ii) Clause (i) shall not apply if writ22 ten and oral notice were not provided as

23 required by section 242B(e)(4)(B).

24 ‘‘(K) FINALITY OF DETERMINATIONS.—
62

•HR 4055 IH

1 ‘‘(i) IN GENERAL.—The decision of

2 the asylum officer shall be the final admin3 istrative determination of a claim for provi4 sional asylum.

5 ‘‘(ii) TREATMENT OF CASES IN EX6 CLUSION OR DEPORTATION.—If proceed7 ings are instituted against an alien under

8 section 235 or 242 of this Act and the

9 alien files an application for provisional

10 asylum based on circumstances described

11 in subsection (b)(1)(A)(ii), the asylum offi12 cer shall render, on an expedited basis, a

13 decision on the application.

14 ‘‘(c) ASYLUM.—

15 ‘‘(1) ADJUSTMENT OF STATUS.—Under such

16 regulations as the Attorney General may prescribe,

17 the Attorney General shall adjust to the status of an

18 alien granted asylum the status of any alien granted

19 provisional asylum under subsection (a)(2)(A) or

20 (a)(2)(B) who—

21 ‘‘(A) applies for such adjustment;

22 ‘‘(B) has been physically present in the

23 United States for at least 1 year after being

24 granted provisional asylum;
63

•HR 4055 IH

1 ‘‘(C) continues to be eligible for provisional

2 asylum under this section; and

3 ‘‘(D) is admissible under this Act at the

4 time of examination for adjustment of status

5 under this subsection.

6 ‘‘(2) TREATMENT OF SPOUSE AND CHIL7 DREN.—A spouse or child (as defined in section

8 101(b) (A), (B), (C), (D), or (E)) of an alien whose

9 status is adjusted to that of an alien granted asylum

10 under paragraph (a)(2) may be granted the same

11 status as the alien if accompanying, or following to

12 join, such alien.

13 ‘‘(3) APPLICATION FEES.—The Attorney Gen14 eral may impose a reasonable fee for the filing of an

15 application for asylum under this subsection.

16 ‘‘(d) DENIAL OF IMMIGRATION BENEFITS FOR FRIV17 OLOUS APPLICATIONS.—

18 ‘‘(1) IN GENERAL.—If the asylum officer deter19 mines that an alien has made a frivolous application

20 for provisional asylum under this section and the

21 alien has received the notice under subsection

22 (b)(1)(D)(i), the alien shall be permanently ineligible

23 for any benefits under this Act, effective as of the

24 date of a final determination on such application.
64

•HR 4055 IH

1 ‘‘(2) TREATMENT OF MATERIAL MISREPRESEN2 TATIONS.—For purposes of this subsection, an appli3 cation considered to be ‘frivolous’ includes, but is

4 not limited to, an application which contains a will5 ful misrepresentation or concealment of a material

6 fact.’’.

7 (b) CLERICAL AMENDMENT.—The item in the table

8 of contents relating to section 208 is amended to read as

9 follows:

‘‘Sec. 208. Asylum.’’.

10 SEC. 407. FAILURE TO APPEAR FOR PROVISIONAL ASYLUM

11 HEARING; JUDICIAL REVIEW.

12 (a) FAILURE TO APPEAR FOR PROVISIONAL ASYLUM

13 HEARING.—Section 242B(e)(4) of the Immigration and

14 Nationality Act (8 U.S.C. 1252b(e)(4)) is amended—

15 (1) in the heading, by striking ‘‘ASYLUM’’ and

16 inserting ‘‘PROVISIONAL ASYLUM’’;

17 (2) by striking ‘‘asylum’’ each place it appears

18 and inserting ‘‘provisional asylum’’; and

19 (3) in subparagraph (A), by striking all after

20 clause (iii) and inserting the following:

21 ‘‘shall not be eligible for any benefits under this

22 Act.’’.

23 (b) JUDICIAL REVIEW.—Section 106 of the Immigra24 tion and Nationality Act (8 U.S.C. 1105a) is amended by

25 adding at the end the following subsection:
65

•HR 4055 IH

1 ‘‘(d) The procedure prescribed by, and all the provi2 sions of chapter 158 of title 28, United States Code, shall

3 apply to, and shall be the sole and exclusive procedure for,

4 the judicial review of all final orders granting or denying

5 provisional asylum, except that—

6 ‘‘(1) a petition for review may be filed not later

7 than 90 days after the date of the issuance of the

8 final order granting or denying provisional asylum;

9 ‘‘(2) the venue of any petition for review under

10 this subsection shall be in the judicial circuit in

11 which the administrative proceedings before an asy12 lum officer were conducted in whole or in part, or

13 in the judicial circuit wherein is the residence, as de14 fined in this Act, of the petitioner, but not in more

15 than one circuit; and

16 ‘‘(3) notwithstanding any other provision of

17 law, a determination granting or denying provisional

18 asylum based on changed circumstances pursuant to

19 section 208(b)(1)(A)(ii) shall be in the sole discre20 tion of the asylum officer.’’.

21 SEC. 408. EFFECTIVE DATES.

22 (a) IN GENERAL.—Except as otherwise provided, the

23 amendments made by this title shall take effect on the

24 date of the enactment of this Act.

25 (b) EXCEPTIONS.—
66

•HR 4055 IH

1 (1) The amendments made by this title shall

2 not apply to applications for asylum or withholding

3 of deportation made before the first day of the first

4 month that begins more than 180 days after the

5 date of the enactment of this Act and no application

6 for provisional asylum under section 208 of the Im7 migration and Nationality Act (as amended by sec8 tion 201 of this Act) shall be considered before such

9 first day.

10 (2) In applying section 208(b)(1)(A) of the Im11 migration and Nationality Act (as amended by this

12 title) in the case of an alien who has entered or

13 came to the United States before the first day de14 scribed in paragraph (1), notwithstanding the dead15 lines specified in such section—

16 (A) the deadline for the filing of a notice

17 of intention to file an application for provisional

18 asylum is 30 days after such first day, and

19 (B) the deadline for the filing of the appli20 cation for provisional asylum is 30 days after

21 the date of filing such notice.

22 (3) The amendments made by section 203(b)

23 (relating to adjustment of status) shall not apply to

24 aliens granted asylum under section 208 of the Im-
67

•HR 4055 IH

1 migration and Nationality Act, as in effect before

2 the date of the enactment of this Act.

3 SEC. 409. ISSUANCE OF NEW IDENTIFICATION CARDS FOR

4 ALIENS.

5 (a) IN GENERAL.—The Attorney General shall cause

6 to be issued new registration and identification cards to

7 all aliens who are qualified to hold employment in the

8 United States for the purpose of providing proof of em9 ployment eligibility under section 274A of the Immigration

10 and Nationality Act (8 U.S.C. 1324a).

11 (b) REQUIREMENTS.—(1) Each new registration and

12 identification card issued under subsection (a) shall—

13 (A) be in a form which is resistant to counter14 feiting and tampering;

15 (B) be designed in such a manner so that an

16 employer can reliably determine that—

17 (i) the person with the bearer’s claimed

18 identity is eligible to be employed in the United

19 States, and

20 (ii) the bearer is not claiming the identity

21 of another individual;

22 (C) contain a photograph and other identifying

23 information (such as date of birth, sex, and distin24 guishing marks) that would allow an employer to de-
68

•HR 4055 IH

1 termine with reasonable certainty that the bearer is

2 not claiming the identity of another individual;

3 (D) in the case of a card issued to—

4 (i) a work-eligible nonimmigrant admitted

5 under section 214 of the Immigration and Na6 tionality Act (8 U.S.C. 1184),

7 (ii) an alien admitted for temporary resi8 dence under section 210 of such Act (8 U.S.C.

9 1160),

10 (iii) an alien granted temporary protected

11 status under section 244A of such Act (8

12 U.S.C. 1254a), and

13 (iv) an alien authorized to work by the Im14 migration and Naturalization Service pending a

15 final determination of deportability,

16 shall specify the expiration date of the work author17 ization on the face of the card; and

18 (E) shall specify the alien’s admission number

19 or alien file number.

20 (2) The new card shall be valid for a period of 10

21 years and must be reissued to remain valid after the 10th

22 anniversary of the date of its issue.

23 (3) The new card shall note on its face whether work

24 authorization is restricted.
69

•HR 4055 IH

1 (4) An employer, for purposes of satisfying the re2 quirements of section 274A(b) of the Immigration and

3 Nationality—

4 (A) may require an alien seeking employment to

5 produce the new card as proof of employment eligi6 bility, and

7 (B) may inquire whether an applicant’s limited

8 work authorization has expired or has been reau9 thorized at the end of a work authorization period.

10 Such a requirement or inquiry shall not constitute an un11 fair immigration-related employment practice under sec12 tion 274B of such Act.

13 SEC. 410. IMPLEMENTATION.

14 (a) IN GENERAL.—Each alien who is authorized to

15 be employed in the United States shall, on or before Octo16 ber 1, 1994, turn in any alien registration and identifica17 tion card which is in the alien’s possession at any post

18 office or office of the Immigration and Naturalization

19 Service. No resident alien shall receive the new card

20 until—

21 (1) the alien—

22 (A) has surrendered the old green card;

23 (B) has provided proof of identity;

24 (C) has provided such other documents as

25 may be required under law; and
70

•HR 4055 IH

1 (D) has paid a fee (not to exceed $75) that

2 is reasonable and sufficient to cover the costs of

3 administration of this section; and

4 (2) the Service has verified the lawful status of

5 the alien.

6 The Attorney General may waive payment of the fee under

7 paragraph (1)(D) (or reduce the amount of such fee) if

8 the alien provides satisfactory evidence that the alien can9 not afford the full fee.

10 (b) POSTING OF NOTICES.—Notices of the require11 ment of subsection (a) shall be posted in all post offices

12 and Immigration and Naturalization Service offices and

13 published in local newspapers during fiscal year 1994.

14 (c) INVALIDITY OF OLD CARDS.—Any alien registra15 tion or identification card for permanent resident aliens,

16 other than an alien registration and identification card is17 sued under this section, shall be invalid as of midnight

18 of October 1, 1997.

19 (d) USE OF NEW CARDS UNDER SAVE PROGRAM.—

20 (1) IN GENERAL.—Section 1137(d) of the So21 cial Security Act (42 U.S.C. 1320b–7(d)) is amend22 ed—

23 (A) in paragraph (2), by striking ‘‘either’’

24 and all that follows through the end and insert25 ing the following: ‘‘a registration and identifica-
71

•HR 4055 IH

1 tion card issued under section 2(a) of the Immi2 gration Document Fraud Prevention Act of

3 1993.’’,

4 (B) in paragraph (3), by striking ‘‘para5 graph (2)(A)’’ and inserting ‘‘paragraph (2)’’,

6 and

7 (C) in paragraph (4), by striking ‘‘para8 graph (2)(A)’’ and inserting ‘‘such paragraph’’.

9 (2) HOUSING ASSISTANCE.—Section 214(d) of

10 the Housing and Community Development Act of

11 1980 (42 U.S.C. 1436a(d)) is amended—

12 (A) in paragraph (2), by striking ‘‘either’’

13 and all that follows through the end and insert14 ing the following: ‘‘a registration and identifica15 tion card issued under section 2(a) of the Immi16 gration Document Fraud Prevention Act of

17 1993.’’,

18 (B) in paragraph (3), by striking ‘‘para19 graph (2)(A)’’ and inserting ‘‘paragraph (2)’’,

20 (C) in paragraph (4), by striking ‘‘para21 graph (2)(A)’’ the first place it appears and in22 serting ‘‘paragraph (2)’’, and

23 (D) in paragraph (4), by striking ‘‘para24 graph (2)(A)’’ the second place it appears and

25 inserting ‘‘such paragraph’’.
72

•HR 4055 IH

1 (3) EFFECTIVE DATE.—The amendments made

2 by this subsection shall take effect on October 1,

3 1997.

4 SEC. 411. NO NATIONAL IDENTITY CARD.

5 The new card described in section 409—

6 (1) shall not be considered a national identity

7 card;

8 (2) shall not be issued to any citizen or national

9 of the United States; and

10 (3) shall—

11 (A) not be required to be carried on one’s

12 person, and

13 (B) not be required to be presented other

14 than—

15 (i) upon request by a prospective em16 ployer for any purposes other than under

17 this section or under sections 1001, 1023,

18 1566, and 1621 of title 18, United States

19 Code, or to satisfy the requirements of sec20 tion 274A of the Immigration and Nation21 ality Act, or

22 (ii) for purposes of carrying out sec23 tion 1137(d) of the Social Security Act or

24 section 214(d) of the Housing and Com25 munity Development Act of 1980.
73

•HR 4055 IH

1 SEC. 412. EMPLOYER EDUCATION PROGRAM.

2 The Attorney General, in consultation with the Sec3 retary of Labor, the Administrator of the Small Business

4 Administration, and the Commissioner of the Internal

5 Revenue, shall conduct a nationwide program to inform

6 employers about their responsibilities under the Immigra7 tion and Nationality Act and the uses of the new alien

8 registration and identification cards issued under this Act.

9 SEC. 413. AUTHORIZATION OF APPROPRIATIONS.

10 There are authorized to be appropriated $5,000,000

11 for each of fiscal years 1994 and 1995 to carry out sec12 tions 409 through 412 of this Act.

13 SEC. 414. EMPLOYMENT ELIGIBILITY VERIFICATION DEM14 ONSTRATION PROJECT.

15 The Attorney General shall continue to conduct the

16 demonstration projects under section 274A of the Immi17 gration and Nationality Act in order to establish if it is

18 feasible to determine the employment eligibility of aliens

19 authorized to work in the United States through the use

20 of a telephone and computation capability that is available

21 on the date of enactment of this Act. The Attorney Gen22 eral shall submit a report to Congress on such projects

23 by not later than October 1, 1994.
74

•HR 4055 IH

1 TITLE V—CHILD-RELATED SEX

2 OFFENDERS

3 SEC. 501. SENSE OF CONGRESS.

4 It is the sense of the Congress that—

5 (1) criminal background checks should be per6 formed for all prospective employees or volunteers of

7 State-licensed or tax-funded organizations that inter8 act with children;

9 (2) an adult who is convicted of a child-related

10 sex offense or a child who has been adjudicated as

11 a delinquent for an act that would constitute a child12 related sex offense if committed by an adult should

13 register a current address with the local law enforce14 ment agency;

15 (3) a court should require an adult or child who

16 commits a child-related sex offense to register with

17 a local law enforcement agency as a condition of

18 probation;

19 (4) criminal penalties should be provided for of20 fenders described in paragraph (3) who are ordered

21 to register with a local law enforcement agency and

22 fail to register;

23 (5) law enforcement agencies should submit in24 formation on individuals convicted of child-related

25 sex offenses in the law enforcement agencies’ com-
75

•HR 4055 IH

1 munities to the national criminal history background

2 check system, a criminal history record system main3 tained by the Federal Bureau of Investigation based

4 on fingerprint identification or other methods of

5 positive identification;

6 (6) law enforcement agencies should access the

7 FBI database for criminal background checks on

8 employees, prospective employees, or volunteers in

9 State-licensed or federally funded organizations that

10 interact with children;

11 (7) the police, upon request, should release in12 formation on whether a person has been convicted of

13 a child-related sex offense, if the convicted person

14 lives in the same county as the person making the

15 request;

16 (8) criminal penalties should be provided for

17 persons who violate confidentiality requirements re18 garding the release of information obtained through

19 the registration of individuals who have committed

20 child-related sex offenses;

21 (9) a child care institution, foster family home,

22 group home, or child placing agency should be pro23 hibited from hiring an employee or utilizing a volun24 teer convicted of a child-related sex offense;
76

•HR 4055 IH

1 (10) anyone applying for employment with a

2 school should undergo a mandatory criminal history

3 check;

4 (11) a school should be prohibited from hiring

5 or retaining a person if the person is known to have

6 committed a child-related sex offense;

7 (12) the State board of education should be

8 prohibited from issuing a teaching license to a per9 son who has been convicted of a child-related sex

10 offense;

11 (13) the State board of education should revoke

12 a teacher’s license permanently if the teacher is con13 victed of a child-related sex offense; and

14 (14) in the case of an arrest or filing of charges

15 that arises from a child-related sex offense, a law

16 enforcement agency or prosecuting attorney should

17 be required to notify the superintendent regarding

18 such arrest or filing of charges against a person who

19 is known by such law enforcement agency or pros20 ecuting attorney to be employed by such school.

21 TITLE VI—TRUTH IN

22 SENTENCING

23 SEC. 601. SHORT TITLE.

24 This title may be cited as the ‘‘Violent and Repeat

25 Offender Accountability Act of 1994’’.
77

•HR 4055 IH

1 SEC. 602. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—The Congress finds that—

3 (1) it is the responsibility of the Federal Gov4 ernment to provide States help in certain areas, in5 cluding efforts to reduce violent crime;

6 (2) Federal legislation relating to criminal jus7 tice, including the Racketeer Influenced and Corrupt

8 Organizations Act (‘‘RICO’’) and the Federal Sen9 tencing Guidelines, has been very effective in dealing

10 with crimes to which the legislation applies;

11 (3) the responsibility for protecting citizens

12 against most violent crimes and for punishing most

13 violent criminal offenders is primarily a matter of

14 State and local governance;

15 (4) violent crimes nationwide have risen dra16 matically and constitute a national priority of the

17 highest order;

18 (5) the persistence and increasing incidence of

19 violent crime, despite the efforts of State and local

20 governments, has resulted in a vastly increased Fed21 eral role in this area, and there is pressure for even

22 greater Federal involvement in criminal matters tra23 ditionally handled by State and local governments;

24 (6) the Federal courts especially have become

25 overburdened with criminal matters more properly

26 handled by State and local governments;
78

•HR 4055 IH

1 (7) a major impetus for this increased Federal

2 role in combating violent crime is the lack of effec3 tive tools with which State and local governments

4 can prosecute violent criminal offenders;

5 (8) a more uniform, proportionate, and appro6 priately punitive system of sentencing for violent

7 criminal offenders would serve both to reduce the in8 cidence of violent crime and to reduce the need for

9 direct Federal involvement in criminal matters tradi10 tionally handled by State and local governments;

11 (9) a more appropriate and effective role for the

12 Federal Government in the struggle against most

13 violent crime is to encourage each State to take the

14 steps necessary to reduce crime in such State which

15 would also reduce the national crime rate;

16 (10) the United States Sentencing Guidelines

17 have proven to be an effective means of achieving,

18 at the Federal level, a more uniform, proportionate,

19 and appropriately punitive criminal sentencing sys20 tem; and

21 (11) each State should be required to analyze

22 its criminal sentencing system and to consider

23 whether the adoption of a revised sentencing system

24 would enable it to combat violent crime more effec25 tively.
79

•HR 4055 IH

1 (b) PURPOSES.—The purposes of this title are—

2 (1) to require each State to undertake a com3 prehensive examination of the State’s criminal sen4 tencing scheme and to create a sentencing system

5 which more effectively governs the sentencing of vio6 lent offenders; and

7 (2) to provide funds to States that comply with

8 the requirements of section 605(b) to implement

9 necessary changes to the State criminal sentencing

10 system, including increasing the capacity of State

11 correctional facilities if necessary.

12 SEC. 603. DEFINITION.

13 For the purpose of this title, the term ‘‘State’’ means

14 any State of the United States.

15 SEC. 604. STATE SENTENCING REVIEWS.

16 (a) IN GENERAL.—Each State, in order to be eligible

17 for funds under this title, must conduct a systematic re18 view of its criminal sentencing laws and practices.

19 (b) STATE SENTENCING REVIEWS.—Not later than

20 one year after the date of enactment of this Act, the gov21 ernment of each State shall submit to the Attorney Gen22 eral a report detailing the results of the State’s review of

23 its criminal sentencing system. The report also shall in24 clude the following:
80

•HR 4055 IH

1 (1) An analysis of the State statutory criminal

2 sentencing scheme, including information regarding

3 murder (all degrees), arson, burglary, assault, rob4 bery, kidnapping, extortion, rape, and child molesta5 tion. This analysis should include—

6 (A) the minimum and maximum sentence

7 available for each offense;

8 (B) the basis for distinguishing between

9 different degrees of the same offense;

10 (C) whether factors in addition to the ac11 tual crime (such as criminal history, victim im12 pact, or use of a weapon) should be considered

13 by the sentencing authority; and

14 (D) whether probation or some other non15 custodial alternatives to incarceration are a sen16 tencing option.

17 (2) An analysis of the sentences actually im18 posed by State court judges for the crimes listed in

19 paragraph (1).

20 (3) An analysis of the time which has actually

21 been served for the conviction of crimes listed in

22 paragraph (1).

23 (4) An analysis of the practices and procedures

24 of the State relating to probation, parole, and other

25 alternatives to incarceration, with particular empha-
81

•HR 4055 IH

1 sis on crimes which have been committed by con2 victed criminals while on parole or probation or oth3 erwise not incarcerated.

4 (5) An analysis of whether the State sentencing

5 system permits or requires the sentencing authority

6 to order convicted criminals to pay restitution to the

7 victim, the victim’s family, or the State, and the per8 centage of restitution orders which are actually

9 collected.

10 (6) An analysis of whether and under what cir11 cumstances State law permits the pretrial detention

12 without bond of dangerous offenders.

13 (7) An analysis of whether and under what cir14 cumstances State law gives victims the right to be

15 informed, present, and heard at all critical stages of

16 a case from arrest through parole.

17 (8) An analysis of whether and how State law

18 establishes post conviction relief procedures which

19 limit repetitive challenges by convicted offenders.

20 (9) An analysis of State law regarding the ap21 plication of adult sentencing laws to juvenile offend22 ers charged with the crimes listed in section

23 604(b)(1) of this Act.

24 (10) An analysis of the State prison capacity

25 and whether court orders limit, or otherwise impact
82

•HR 4055 IH

1 such capacity and whether a lack of capacity im2 pacts sentencing or release decisions at the judicial

3 or administrative level.

4 SEC. 605. STATE SENTENCING SYSTEMS.

5 (a) IN GENERAL.—Each State, in order to comply

6 with this Act, must submit for approval a plan to the At7 torney General that evaluates the criminal sentencing sys8 tem and, if necessary, creates a sentencing system which

9 complies with the requirements of subsection (b).

10 (b) STATE SENTENCING SYSTEM.—In addition to re11 sponding to the reporting requirement of section 604(b)

12 of this Act, the State, in a subsequent report to the Attor13 ney General, shall describe in detail any changes in the

14 State’s criminal sentencing system designed to meet the

15 requirements of this Act. The elements of a sentencing

16 system that the States must have in order to be in compli17 ance with this title shall include at least the following:

18 (1) State constitutional or statutory authority

19 for pretrial detention of dangerous criminals.

20 (2) Mandatory minimum prison sentences,

21 which do not allow probation or suspension of sen22 tence, for violent offenders or repeat offenders

23 who—

24 (A) intentionally or knowingly inflict seri25 ous physical injury;
83

•HR 4055 IH

1 (B) use or exhibit deadly weapons in the

2 commission of the crimes listed in section

3 604(b)(1) of this Act;

4 (C) commit violent or sexual offenses

5 against children; and

6 (D) commit sexual assault.

7 (3) Mandatory life sentence with no release for

8 third or subsequent conviction of violent crime.

9 (4) Truth in sentencing provisions which re10 strict parole, good-time credit release for violent of11 fenders, or other forms of early release to not more

12 than a total reduction of 15 percent of the sentence

13 imposed.

14 (5) State constitutional or statutory provisions

15 which guarantee to victims the right to be informed,

16 present, and heard at all critical stages of the crimi17 nal case, and provisions to ensure the collection,

18 tracking, and enforcement of restitution from the of19 fender in all cases involving economic loss to the

20 victim.

21 SEC. 606. FUNDING AND COMPLIANCE.

22 (a) FUNDING.—There shall be available to carry out

23 the purposes of this Act, for fiscal year 1994, $1,000,000;

24 for fiscal year 1995, $1,500,000; for fiscal year 1996,

25 $2,000,000; for fiscal year 1997, $2,500,000; and for fis-
84

•HR 4055 IH

1 cal year 1998, $3,000,000; from amounts appropriated for

2 foreign operations during such fiscal years (specifically

3 from the amounts allocated for the Multilateral Develop4 ment Banks, the International Development Association,

5 the Agency for International Development, Public Law

6 83–480, and the Export-Import Development Bank) and

7 from amounts appropriated from Federal land purchases

8 and from amounts appropriated for trade promotion ac9 tivities and travel and tourism activities.

10 (b) FEDERAL SHARE.—The Federal share of a grant

11 made under this title may not exceed 50 percent of the

12 total costs of the projects which receive funds under this

13 Act.

14 (c) COMPLIANCE.—Beginning 3 years after the date

15 of enactment of this Act, the Attorney General shall elimi16 nate funding to a State that does not comply with the

17 requirements of this Act.

18 TITLE VII—THREE STRIKES AND

19 YOU’RE OUT

20 SEC. 701. LIFE IMPRISONMENT OR DEATH PENALTY FOR

21 THIRD FEDERAL VIOLENT FELONY CONVIC22 TION.

23 Section 3581 of title 18, United States Code, is

24 amended by adding at the end the following:

25 ‘‘(c) PUNISHMENT OF CERTAIN VIOLENT FELONS.—
85

•HR 4055 IH

1 ‘‘(1) GENERAL RULE.—Notwithstanding any

2 other provision of this title or any other law, in the

3 case of a conviction for a Federal violent felony, the

4 court shall sentence the defendant to prison for life

5 if the defendant has previously been convicted of two

6 other violent felonies and if a death results from the

7 violent felony, the defendant shall be subject to the

8 death penalty.

9 ‘‘(2) DEFINITION.—As used in this section the

10 term ‘violent felony’ is a State or Federal crime of

11 violence (as defined in section 16 of this title)—

12 ‘‘(A) that involves the threatened use, use,

13 or the risk of use of physical force against the

14 person of another;

15 ‘‘(B) for which the maximum authorized

16 imprisonment exceeds one year; and

17 ‘‘(C) which is not designated a mis18 demeanor by the law that defines the offense.

19 ‘‘(3) RULE OF CONSTRUCTION.—This sub20 section shall not be construed to prevent the imposi21 tion of the death penalty.’’.
86

•HR 4055 IH

1 TITLE VIII—HABEAS CORPUS

2 REFORM

3 Subtitle A—Post Conviction Peti4 tions: General Habeas Corpus

5 Reform

6 SEC. 801. PERIOD OF LIMITATION FOR FILING WRIT OF HA7 BEAS CORPUS FOLLOWING FINAL JUDGMENT

8 OF A STATE COURT.

9 Section 2244 of title 28, United States Code, is

10 amended by adding at the end the following:

11 ‘‘(d) A one-year period of limitation shall apply to an

12 application for a writ of habeas corpus by a person in cus13 tody pursuant to the judgment of a State court. The limi14 tation period shall run from the latest of the following

15 times:

16 ‘‘(1) The time at which State remedies are ex17 hausted.

18 ‘‘(2) The time at which the impediment to filing

19 an application created by State action in violation of

20 the Constitution or laws of the United States is re21 moved, where the applicant was prevented from fil22 ing by such State action.

23 ‘‘(3) The time at which the Federal right as24 serted was initially recognized by the Supreme
87

•HR 4055 IH

1 Court, where the right has been newly recognized by

2 the Court and is retroactively applicable.

3 ‘‘(4) The time at which the factual predicate of

4 the claim or claims presented could have been dis5 covered through the exercise of reasonable dili6 gence.’’.

7 SEC. 802. AUTHORITY OF APPELLATE JUDGES TO ISSUE

8 CERTIFICATES OF PROBABLE CAUSE FOR AP9 PEAL IN HABEAS CORPUS AND FEDERAL COL10 LATERAL RELIEF PROCEEDINGS.

11 Section 2253 of title 28, United States Code, is

12 amended to read as follows:

13 ‘‘§ 2253. Appeal

14 ‘‘(a) In a habeas corpus proceeding or a proceeding

15 under section 2255 of this title before a circuit or district

16 judge, the final order shall be subject to review, on appeal,

17 by the court of appeals for the circuit where the proceed18 ing is had.

19 ‘‘(b) There shall be no right of appeal from such an

20 order in a proceeding to test the validity of a warrant to

21 remove, to another district or place for commitment or

22 trial, a person charged with a criminal offense against the

23 United States, or to test the validity of his detention pend24 ing removal proceedings.
88

•HR 4055 IH

1 ‘‘(c) An appeal may not be taken to the court of ap2 peals from the final order in a habeas corpus proceeding

3 where the detention complained of arises out of process

4 issued by a State court, or from the final order in a pro5 ceeding under section 2255 of this title, unless a circuit

6 justice or judge issues a certificate of probable cause.’’.

7 SEC. 803. CONFORMING AMENDMENT TO THE RULES OF AP8 PELLATE PROCEDURE.

9 (a) IN GENERAL.—Rule 22 of the Federal Rules of

10 Appellate Procedure is amended to read as follows:

11 ‘‘Rule 22. Habeas corpus and section 2255 proceedings

12 ‘‘(a) APPLICATION FOR AN ORIGINAL WRIT OF HA13 BEAS CORPUS.—An application for a writ of habeas cor14 pus shall be made to the appropriate district court. If ap15 plication is made to a circuit judge, the application will

16 ordinarily be transferred to the appropriate district court.

17 If an application is made to or transferred to the district

18 court and denied, renewal of the application before a cir19 cuit judge is not favored; the proper remedy is by appeal

20 to the court of appeals from the order of the district court

21 denying the writ.

22 ‘‘(b) NECESSITY OF CERTIFICATE OF PROBABLE

23 CAUSE FOR APPEAL.—In a habeas corpus proceeding in

24 which the detention complained of arises out of process

25 issued by a State court, and in a motion proceeding pursu-
89

•HR 4055 IH

1 ant to section 2255 of title 28, United States Code, an

2 appeal by the applicant or movant may not proceed unless

3 a circuit judge issues a certificate of probable cause. If

4 a request for a certificate of probable cause is addressed

5 to the court of appeals, it shall be deemed addressed to

6 the judges thereof and shall be considered by a circuit

7 judge or judges as the court deems appropriate. If no ex8 press request for a certificate is filed, the notice of appeal

9 shall be deemed to constitute a request addressed to the

10 judges of the court of appeals. If an appeal is taken by

11 a State or the Government or its representative, a certifi12 cate of probable cause is not required.’’.

13 (b) CLERICAL AMENDMENT.—The item relating to

14 rule 22 in the table of contents of the Federal Rules of

15 Appellate Procedure is amended by inserting ‘‘and section

16 2255’’ after ‘‘Habeas corpus’’.

17 SEC. 804. DISCRETION TO DENY HABEAS CORPUS APPLICA18 TION DESPITE FAILURE TO EXHAUST STATE

19 REMEDIES.

20 Section 2254(b) of title 28, United States Code, is

21 amended to read as follows:

22 ‘‘(b) An application for a writ of habeas corpus in

23 behalf of a person in custody pursuant to the judgment

24 of a State court shall not be granted unless it appears

25 that the applicant has exhausted the remedies available
90

•HR 4055 IH

1 in the courts of the State, or that there is either an ab2 sence of available State corrective process or the existence

3 of circumstances rendering such process ineffective to pro4 tect the rights of the applicant. An application may be

5 denied on the merits notwithstanding the failure of the

6 applicant to exhaust the remedies available in the courts

7 of the State.’’.

8 SEC. 805. PERIOD OF LIMITATION FOR FEDERAL PRIS9 ONERS FILING FOR COLLATERAL REMEDY.

10 Section 2255 of title 28, United States Code, is

11 amended by striking the second paragraph and the penul12 timate paragraph thereof, and by adding at the end the

13 following new paragraphs:

14 ‘‘A two-year period of limitation shall apply to a mo15 tion under this section. The limitation period shall run

16 from the latest of the following times:

17 ‘‘(1) The time at which the judgment of convic18 tion becomes final.

19 ‘‘(2) The time at which the impediment to mak20 ing a motion created by governmental action in vio21 lation of the Constitution or laws of the United

22 States is removed, where the movant was prevented

23 from making a motion by such governmental action.

24 ‘‘(3) The time at which the right asserted was

25 initially recognized by the Supreme Court, where the
91

•HR 4055 IH

1 right has been newly recognized by the Court and is

2 retroactively applicable.

3 ‘‘(4) The time at which the factual predicate of

4 the claim or claims presented could have been dis5 covered through the exercise of reasonable dili6 gence.’’.

7 Subtitle B—Special Procedures for

8 Collateral Proceedings in Cap9 ital Cases

10 SEC. 811. DEATH PENALTY LITIGATION PROCEDURES.

11 (a) IN GENERAL.—Title 28, United States Code, is

12 amended by inserting immediately after chapter 153 the

13 following new chapter:

14 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

15 PROCEDURES IN CAPITAL CASES

‘‘Sec.

‘‘2256. Prisoners in State custody subject to capital sentence; appointment of

counsel; requirement of rule of court or statute; procedures for

appointment.

‘‘2257. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.

‘‘2258. Filing of habeas corpus petition; time requirements; tolling rules.

‘‘2259. Evidentiary hearings; scope of Federal review; district court adjudication.

‘‘2260. Certificate of probable cause inapplicable.

‘‘2261. Application to State unitary review procedures.

‘‘2262. Limitation periods for determining petitions.

‘‘2263. Rule of construction.
92

•HR 4055 IH

1 ‘‘§ 2256. Prisoners in State custody subject to capital

2 sentence; appointment of counsel; re3 quirement of rule of court or statute; pro4 cedures for appointment

5 ‘‘(a) This chapter shall apply to cases arising under

6 section 2254 brought by prisoners in State custody who

7 are subject to a capital sentence. It shall apply only if the

8 provisions of subsections (b) and (c) are satisfied.

9 ‘‘(b) This chapter is applicable if a State establishes

10 by rule of its court of last resort or by statute a mecha11 nism for the appointment, compensation and payment of

12 reasonable litigation expenses of competent counsel in

13 State postconviction proceedings brought by indigent pris14 oners whose capital convictions and sentences have been

15 upheld on direct appeal to the court of last resort in the

16 State or have otherwise become final for State law pur17 poses. The rule of court or statute must provide standards

18 of competency for the appointment of such counsel.

19 ‘‘(c) Any mechanism for the appointment, compensa20 tion and reimbursement of counsel as provided in sub21 section (b) must offer counsel to all State prisoners under

22 capital sentence and must provide for the entry of an

23 order by a court of record: (1) appointing one or more

24 counsel to represent the prisoner upon a finding that the

25 prisoner is indigent and accepted the offer or is unable

26 competently to decide whether to accept or reject the offer;
93

•HR 4055 IH

1 (2) finding, after a hearing if necessary, that the prisoner

2 rejected the offer of counsel and made the decision with

3 an understanding of its legal consequences; or (3) denying

4 the appointment of counsel upon a finding that the pris5 oner is not indigent.

6 ‘‘(d) No counsel appointed pursuant to subsections

7 (b) and (c) to represent a State prisoner under capital

8 sentence shall have previously represented the prisoner at

9 trial or on direct appeal in the case for which the appoint10 ment is made unless the prisoner and counsel expressly

11 request continued representation.

12 ‘‘(e) The ineffectiveness or incompetence of counsel

13 during State or Federal collateral postconviction proceed14 ings in a capital case shall not be a ground for relief in

15 a proceeding arising under section 2254 of this chapter.

16 This limitation shall not preclude the appointment of dif17 ferent counsel, on the court’s own motion or at the request

18 of the prisoner, at any phase of State or Federal

19 postconviction proceedings on the basis of the ineffective20 ness or incompetence of counsel in such proceedings.

21 ‘‘§ 2257. Mandatory stay of execution; duration; limits

22 on stays of execution; successive peti23 tions

24 ‘‘(a) Upon the entry in the appropriate State court

25 of record of an order under section 2256(c), a warrant
94

•HR 4055 IH

1 or order setting an execution date for a State prisoner

2 shall be stayed upon application to any court that would

3 have jurisdiction over any proceedings filed under section

4 2254. The application must recite that the State has in5 voked the postconviction review procedures of this chapter

6 and that the scheduled execution is subject to stay.

7 ‘‘(b) A stay of execution granted pursuant to sub8 section (a) shall expire if—

9 ‘‘(1) a State prisoner fails to file a habeas cor10 pus petition under section 2254 within the time re11 quired in section 2258, or fails to make a timely ap12 plication for court of appeals review following the de13 nial of such a petition by a district court;

14 ‘‘(2) upon completion of district court and court

15 of appeals review under section 2254 the petition for

16 relief is denied and (A) the time for filing a petition

17 for certiorari has expired and no petition has been

18 filed; (B) a timely petition for certiorari was filed

19 and the Supreme Court denied the petition; or (C)

20 a timely petition for certiorari was filed and upon

21 consideration of the case, the Supreme Court dis22 posed of it in a manner that left the capital sentence

23 undisturbed; or

24 ‘‘(3) before a court of competent jurisdiction, in

25 the presence of counsel and after having been ad-
95

•HR 4055 IH

1 vised of the consequences of his decision, a State

2 prisoner under capital sentence waives the right to

3 pursue habeas corpus review under section 2254.

4 ‘‘(c) If one of the conditions in subsection (b) has

5 occurred, no Federal court thereafter shall have the au6 thority to enter a stay of execution or grant relief in a

7 capital case unless—

8 ‘‘(1) the basis for the stay and request for relief

9 is a claim not previously presented in the State or

10 Federal courts;

11 ‘‘(2) the failure to raise the claim is (A) the re12 sult of State action in violation of the Constitution

13 or laws of the United States; (B) the result of the

14 Supreme Court recognition of a new Federal right

15 that is retroactively applicable; or (C) based on a

16 factual predicate that could not have been discovered

17 through the exercise of reasonable diligence in time

18 to present the claim for State or Federal

19 postconviction review; and

20 ‘‘(3) the facts underlying the claim would be

21 sufficient, if proven, to undermine the court’s con22 fidence in the determination of guilt on the offense

23 or offenses for which the death penalty was imposed.
96

•HR 4055 IH

1 ‘‘§ 2258. Filing of habeas corpus petition; time re2 quirements; tolling rules

3 ‘‘Any petition for habeas corpus relief under section

4 2254 must be filed in the appropriate district court within

5 one hundred and eighty days from the filing in the appro6 priate State court of record of an order under section

7 2256(c). The time requirements established by this section

8 shall be tolled—

9 ‘‘(1) from the date that a petition for certiorari

10 is filed in the Supreme Court until the date of final

11 disposition of the petition if a State prisoner files

12 the petition to secure review by the Supreme Court

13 of the affirmance of a capital sentence on direct re14 view by the court of last resort of the State or other

15 final State court decision on direct review;

16 ‘‘(2) during any period in which a State pris17 oner under capital sentence has a properly filed re18 quest for postconviction review pending before a

19 State court of competent jurisdiction; if all State fil20 ing rules are met in a timely manner, this period

21 shall run continuously from the date that the State

22 prisoner initially files for postconviction review until

23 final disposition of the case by the highest court of

24 the State, but the time requirements established by

25 this section are not tolled during the pendency of a
97

•HR 4055 IH

1 petition for certiorari before the Supreme Court ex2 cept as provided in paragraph (1); and

3 ‘‘(3) during an additional period not to exceed

4 sixty days, if (A) a motion for an extension of time

5 is filed in the Federal district court that would have

6 proper jurisdiction over the case upon the filing of

7 a habeas corpus petition under section 2254; and

8 (B) a showing of good cause is made for the failure

9 to file the habeas corpus petition within the time pe10 riod established by this section.

11 ‘‘§ 2259. Evidentiary hearings; scope of Federal re12 view; district court adjudication

13 ‘‘(a) Whenever a State prisoner under a capital sen14 tence files a petition for habeas corpus relief to which this

15 chapter applies, the district court shall—

16 ‘‘(1) determine the sufficiency of the record for

17 habeas corpus review based on the claims actually

18 presented and litigated in the State courts except

19 when the prisoner can show that the failure to raise

20 or develop a claim in the State courts is (A) the re21 sult of State action in violation of the Constitution

22 or laws of the United States; (B) the result of the

23 Supreme Court recognition of a new Federal right

24 that is retroactively applicable; or (C) based on a

25 factual predicate that could not have been discovered
98

•HR 4055 IH

1 through the exercise of reasonable diligence in time

2 to present the claim for State postconviction review;

3 and

4 ‘‘(2) conduct any requested evidentiary hearing

5 necessary to complete the record for habeas corpus

6 review.

7 ‘‘(b) Upon the development of a complete evidentiary

8 record, the district court shall rule on the claims that are

9 properly before it.

10 ‘‘§ 2260. Certificate of probable cause inapplicable

11 ‘‘The requirement of a certificate of probable cause

12 in order to appeal from the district court to the court of

13 appeals does not apply to habeas corpus cases subject to

14 the provisions of this chapter except when a second or suc15 cessive petition is filed.

16 ‘‘§ 2261. Application to State unitary review proce17 dure

18 ‘‘(a) For purposes of this section, a ‘unitary review’

19 procedure means a State procedure that authorizes a per20 son under sentence of death to raise, in the course of di21 rect review of the judgment, such claims as could be raised

22 on collateral attack. The provisions of this chapter shall

23 apply, as provided in this section, in relation to a State

24 unitary review procedure if the State establishes by rule

25 of its court of last resort or by statute a mechanism for
99

•HR 4055 IH

1 the appointment, compensation and payment of reasonable

2 litigation expenses of competent counsel in the unitary re3 view proceedings, including expenses relating to the litiga4 tion of collateral claims in the proceedings. The rule of

5 court or statute must provide standards of competency for

6 the appointment of such counsel.

7 ‘‘(b) A unitary review procedure, to qualify under this

8 section, must include an offer of counsel following trial

9 for the purpose of representation on unitary review, and

10 entry of an order, as provided in section 2256(c), concern11 ing appointment of counsel or waiver or denial of appoint12 ment of counsel for that purpose. No counsel appointed

13 to represent the prisoner in the unitary review proceedings

14 shall have previously represented the prisoner at trial in

15 the case for which the appointment is made unless the

16 prisoner and counsel expressly request continued represen17 tation.

18 ‘‘(c) Sections 2257, 2258, 2259, 2260, and 2262

19 shall apply in relation to cases involving a sentence of

20 death from any State having a unitary review procedure

21 that qualifies under this section. References to State ‘post22 conviction review’ and ‘direct review’ in those sections

23 shall be understood as referring to unitary review under

24 the State procedure. The references in sections 2257(a)

25 and 2258 to ‘an order under section 2256(c)’ shall be un-
100

•HR 4055 IH

1 derstood as referring to the post-trial order under sub2 section (b) concerning representation in the unitary review

3 proceedings, but if a transcript of the trial proceedings

4 is unavailable at the time of the filing of such an order

5 in the appropriate State court, then the start of the one

6 hundred and eighty day limitation period under section

7 2258 shall be deferred until a transcript is made available

8 to the prisoner or his counsel.

9 ‘‘§ 2262. Limitation periods for determining petitions

10 ‘‘(a) The adjudication of any petition under section

11 2254 of title 28, United States Code, that is subject to

12 this chapter, and the adjudication of any motion under

13 section 2255 of title 28, United States Code, by a person

14 under sentence of death, shall be given priority by the dis15 trict court and by the court of appeals over all noncapital

16 matters. The adjudication of such a petition or motion

17 shall be subject to the following time limitations:

18 ‘‘(1) A Federal district court shall determine

19 such a petition or motion within 180 days of filing.

20 ‘‘(2)(A) The court of appeals shall hear and de21 termine any appeal relating to such a petition or

22 motion within 180 days after the notice of appeal is

23 filed.

24 ‘‘(B) The court of appeals shall decide any ap25 plication for rehearing en banc within 30 days of the
101

•HR 4055 IH

1 filing of such application unless a responsive plead2 ing is required in which case the court of appeals

3 shall decide the application within 30 days of the fil4 ing of the responsive pleading. If en banc consider5 ation is granted, the en banc court shall determine

6 the appeal within 180 days of the decision to grant

7 such consideration.

8 ‘‘(b) The time limitations under subsection (a) shall

9 apply to an initial petition or motion, and to any second

10 or successive petition or motion. The same limitations

11 shall also apply to the re-determination of a petition or

12 motion or related appeal following a remand by the court

13 of appeals or the Supreme Court for further proceedings,

14 and in such a case the limitation period shall run from

15 the date of the remand.

16 ‘‘(c) The time limitations under this section shall not

17 be construed to entitle a petitioner or movant to a stay

18 of execution, to which the petitioner or movant would oth19 erwise not be entitled, for the purpose of litigating any

20 petition, motion, or appeal.

21 ‘‘(d) The failure of a court to meet or comply with

22 the time limitations under this section shall not be a

23 ground for granting relief from a judgment of conviction

24 or sentence. The State or Government may enforce the
102

•HR 4055 IH

1 time limitations under this section by applying to the court

2 of appeals or the Supreme Court for a writ of mandamus.

3 ‘‘(e) The Administrative Office of United States

4 Courts shall report annually to Congress on the compli5 ance by the courts with the time limits established in this

6 section.

7 ‘‘§ 2263. Rule of construction

8 ‘‘This chapter shall be construed to promote the expe9 ditious conduct and conclusion of State and Federal court

10 review in capital cases.’’.

11 (b) CLERICAL AMENDMENT.—The table of chapters

12 at the beginning of part VI of title 28, United States Code,

13 is amended by inserting after the item relating to chapter

14 153 the following new item:

‘‘154. Special Habeas Corpus Procedures in Capital cases 2256’’.

15 Subtitle C—Funding for Litigation

16 of Federal Habeas Corpus Peti17 tions in Capital Cases

18 SEC. 821. FUNDING FOR DEATH PENALTY PROSECUTIONS.

19 Part E of title I of the Omnibus Crime Control and

20 Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is

21 amended by adding at the end the following new section:

22 ‘‘SEC. 513. Notwithstanding any other provision of

23 this subpart, the Director shall provide grants to the

24 States, from the funding allocated pursuant to section

25 511, for the purpose of supporting litigation pertaining to
103

•HR 4055 IH

1 Federal habeas corpus petitions in capital cases. The total

2 funding available for such grants within any fiscal year

3 shall be equal to the funding provided to capital resource

4 centers, pursuant to Federal appropriation, in the same

5 fiscal year.’’.

6 TITLE IX—INCREASE PENALTIES

7 FOR JUVENILES

8 SEC. 901. PROSECUTION AS ADULTS OF VIOLENT JUVENILE

9 OFFENDERS.

10 Section 5032 of title 18, United States Code, is

11 amended by adding at the end the following new para12 graph:

13 ‘‘Notwithstanding any other provision of this section

14 or any other law, a juvenile who was 13 years old or older

15 on the date of the commission of an offense under section

16 113(a), (b), or (c), 1111, 1113, 2111 or 2113 (if the juve17 nile was in possession of a firearm during the offense),

18 or 2241 (a) or (c) (if the juvenile was in possession of

19 a firearm during the offense) of this title shall be pros20 ecuted as an adult in Federal court. No juvenile pros21 ecuted as an adult under this paragraph shall be incarcer22 ated in an adult prison. If a juvenile prosecuted under this

23 paragraph is convicted, the juvenile shall be entitled to file

24 a petition for resentencing pursuant to applicable sentenc25 ing guidelines when he or she reaches the age of 16. The
104

•HR 4055 IH

1 United States Sentencing Commission shall promulgate

2 guidelines or amend existing guidelines, if necessary, to

3 carry out the purposes of this paragraph. For resentencing

4 determinations pursuant to subsection (b), the Commis5 sion may promulgate guidelines, if necessary, to permit

6 sentencing adjustments which may include adjustments

7 which provide for supervised releases, for defendants who

8 have clearly demonstrated an exceptional degree of respon9 sibility for the offense and a willingness and ability to re10 frain from future criminal conduct.’’.

Æ

HR 4055 IH——2

HR 4055 IH——3

HR 4055 IH——4

HR 4055 IH——5

HR 4055 IH——6

HR 4055 IH——7

HR 4055 IH——8