I

103D CONGRESS

2D SESSION H. R. 4035

To establish constitutional procedures for the imposition of the death penalty.

IN THE HOUSE OF REPRESENTATIVES

MARCH 15, 1994

Mr. EDWARDS of California (for himself and Mr. SCHUMER) introduced the

following bill; which was referred to the Committee on the Judiciary

A BILL

To establish constitutional procedures for the imposition of

the death penalty.

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

3 SECTION 1. CONSTITUTIONAL PROCEDURES FOR THE IM4 POSITION OF THE SENTENCE OF DEATH.

5 Part II of title 18 of the United States Code is

6 amended by adding the following new chapter after chap7 ter 227:

8 ‘‘CHAPTER 228—DEATH SENTENCE

‘‘Sec.

‘‘3591. Sentence of death.

‘‘3592. Mitigating and aggravating factors to be considered in determining

whether a sentence of death is justified.

‘‘3593. Special hearing to determine whether a sentence of death is justified.

‘‘3594. Imposition of a sentence of death.
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‘‘3595. Review of a sentence of death.

‘‘3596. Implementation of a sentence of death.

‘‘3597. Use of State facilities.

‘‘3598. Special provisions for Indian country.

1 ‘‘§ 3591. Sentence of death

2 ‘‘A defendant who has been found guilty of—

3 ‘‘(1) an offense described in section 794 or sec4 tion 2381 of this title; or

5 ‘‘(2) any other offense for which a sentence of

6 death is provided, if the defendant, as determined

7 beyond a reasonable doubt at the hearing under sec8 tion 3593—

9 ‘‘(A) intentionally killed the victim;

10 ‘‘(B) intentionally inflicted serious bodily

11 injury that resulted in the death of the victim;

12 ‘‘(C) intentionally participated in an act,

13 contemplating that the life of a person would be

14 taken or intending that lethal force would be

15 used in connection with a person, other than

16 one of the participants in the offense, and the

17 victim died as a direct result of the act; or

18 ‘‘(D) intentionally and specifically engaged

19 in an act of violence, knowing that the act cre20 ated a grave risk of death to a person, other

21 than one of the participants in the offense, such

22 that participation in the act constituted a reck-
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1 less disregard for human life and the victim

2 died as a direct result of the act,

3 shall be sentenced to death if, after consideration of the

4 factors set forth in section 3592 in the course of a hearing

5 held pursuant to section 3593, it is determined that impo6 sition of a sentence of death is justified, except that no

7 person may be sentenced to death who was less than 18

8 years of age at the time of the offense.

9 ‘‘§ 3592. Mitigating and aggravating factors to be con10 sidered in determining whether a sen11 tence of death is justified

12 ‘‘(a) MITIGATING FACTORS.—In determining wheth13 er a sentence of death is to be imposed on a defendant,

14 the finder of fact shall consider any mitigating factor, in15 cluding the following:

16 ‘‘(1) IMPAIRED CAPACITY.—The defendant’s ca17 pacity to appreciate the wrongfulness of the defend18 ant’s conduct or to conform conduct to the require19 ments of law was significantly impaired, regardless

20 of whether the capacity was so impaired as to con21 stitute a defense to the charge.

22 ‘‘(2) DURESS.—The defendant was under un23 usual and substantial duress, regardless of whether

24 the duress was of such a degree as to constitute a

25 defense to the charge.
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1 ‘‘(3) MINOR PARTICIPATION.—The defendant is

2 punishable as a principal (as defined in section 2 of

3 title 18 of the United States Code) in the offense,

4 which was committed by another, but the defend5 ant’s participation was relatively minor, regardless

6 of whether the participation was so minor as to con7 stitute a defense to the charge.

8 ‘‘(4) EQUALLY CULPABLE DEFENDANTS.—An9 other defendant or defendants, equally culpable in

10 the crime, will not be punished by death.

11 ‘‘(5) NO PRIOR CRIMINAL RECORD.—The de12 fendant did not have a significant prior history of

13 other criminal conduct.

14 ‘‘(6) DISTURBANCE.—The defendant committed

15 the offense under severe mental or emotional dis16 turbance.

17 ‘‘(7) VICTIM’S CONSENT.—The victim consented

18 to the criminal conduct that resulted in the victim’s

19 death.

20 ‘‘(8) OTHER FACTORS.—Other factors in the

21 defendant’s background, record, or character or any

22 other circumstance of the offense that mitigate

23 against imposition of the death sentence.

24 ‘‘(b) AGGRAVATING FACTORS FOR ESPIONAGE AND

25 TREASON.—In determining whether a sentence of death
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1 is justified for an offense described in section 3591(1), the

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

3 of the following aggravating factors for which notice has

4 been given and determine which, if any, exist:

5 ‘‘(1) PRIOR ESPIONAGE OR TREASON OF6 FENSE.—The defendant has previously been con7 victed of another offense involving espionage or trea8 son for which a sentence of either life imprisonment

9 or death was authorized by law.

10 ‘‘(2) GRAVE RISK TO NATIONAL SECURITY.—In

11 the commission of the offense the defendant know12 ingly created a grave risk of substantial danger to

13 the national security.

14 ‘‘(3) GRAVE RISK OF DEATH.—In the commis15 sion of the offense the defendant knowingly created

16 a grave risk of death to another person.

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

18 whether any other aggravating factor for which notice has

19 been given exists.

20 ‘‘(c) AGGRAVATING FACTORS FOR HOMICIDE.—In

21 determining whether a sentence of death is justified for

22 an offense described in section 3591(2), the jury, or if

23 there is no jury, the court, shall consider each of the fol24 lowing aggravating factors for which notice has been given

25 and determine which, if any, exist:
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1 ‘‘(1) DEATH DURING COMMISSION OF ANOTHER

2 CRIME.—The death, or injury resulting in death, oc3 curred during the commission or attempted commis4 sion of, or during the immediate flight from the

5 commission of, an offense under section 32 (destruc6 tion of aircraft or aircraft facilities), section 33 (de7 struction of motor vehicles or motor vehicle facili8 ties), section 36 (violence at international airports),

9 section 351 (violence against Members of Congress,

10 Cabinet officers, or Supreme Court Justices), an of11 fense under section 751 (prisoners in custody of in12 stitution or officer), section 794 (gathering or deliv13 ering defense information to aid foreign govern14 ment), section 844(d) (transportation of explosives

15 in interstate commerce for certain purposes), section

16 844(f) (destruction of Government property by ex17 plosives), section 1118 (prisoners serving life term),

18 section 1201 (kidnapping), section 844(i) (destruc19 tion of property affecting interstate commerce by ex20 plosives), section 1116 (killing or attempted killing

21 of diplomats), section 1203 (hostage taking), section

22 1992 (wrecking trains), section 2280 (maritime vio23 lence), section 2281 (maritime platform violence),

24 section 2332 (terrorist acts abroad against United

25 States nationals), section 2339 (use of weapons of
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1 mass destruction), or section 2381 (treason) of this

2 title, or section 902 (i) or (n) of the Federal Avia3 tion Act of 1958 (49 U.S.C. 1472 (i) or (n)) (air4 craft piracy).

5 ‘‘(2) PREVIOUS CONVICTION OF VIOLENT FEL6 ONY INVOLVING FIREARM.—For any offense, other

7 than an offense for which a sentence of death is

8 sought on the basis of section 924(c) of this title, as

9 amended by this Act, the defendant has previously

10 been convicted of a Federal or State offense punish11 able by a term of imprisonment of more than one

12 year, involving the use or attempted or threatened

13 use of a firearm, as defined in section 921 of this

14 title, against another person.

15 ‘‘(3) PREVIOUS CONVICTION OF OFFENSE FOR

16 WHICH A SENTENCE OF DEATH OR LIFE IMPRISON17 MENT WAS AUTHORIZED.—The defendant has pre18 viously been convicted of another Federal or State

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

20 a sentence of life imprisonment or a sentence of

21 death was authorized by statute.

22 ‘‘(4) PREVIOUS CONVICTION OF OTHER SERI23 OUS OFFENSES.—The defendant has previously been

24 convicted of two or more Federal or State offenses,

25 punishable by a term of imprisonment of more than
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1 one year, committed on different occasions, involving

2 the infliction of, or attempted infliction of, serious

3 bodily injury or death upon another person.

4 ‘‘(5) GRAVE RISK OF DEATH TO ADDITIONAL

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

6 offense, or in escaping apprehension for the violation

7 of the offense, knowingly created a grave risk of

8 death to one or more persons in addition to the vic9 tim of the offense.

10 ‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER

11 OF COMMITTING OFFENSE.—The defendant commit12 ted the offense in an especially heinous, cruel, or de13 praved manner in that it involved torture or serious

14 physical abuse to the victim.

15 ‘‘(7) PROCUREMENT OF OFFENSE BY PAY16 MENT.—The defendant procured the commission of

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

18 anything of pecuniary value.

19 ‘‘(8) PECUNIARY GAIN.—The defendant com20 mitted the offense as consideration for the receipt,

21 or in the expectation of the receipt, of anything of

22 pecuniary value.

23 ‘‘(9) SUBSTANTIAL PLANNING AND

24 PREMEDITATION.—The defendant committed the of25 fense after substantial planning and premeditation
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1 to cause the death of a person or commit an act of

2 terrorism.

3 ‘‘(10) CONVICTION FOR TWO FELONY DRUG OF4 FENSES.—The defendant has previously been con5 victed of two or more State or Federal offenses pun6 ishable by a term of imprisonment of more than one

7 year, committed on different occasions, involving the

8 distribution of a controlled substance.

9 ‘‘(11) VULNERABILITY OF VICTIM.—The victim

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

11 infirmity.

12 ‘‘(12) CONVICTION FOR SERIOUS FEDERAL

13 DRUG OFFENSES.—The defendant had previously

14 been convicted of violating title II or title III of the

15 Controlled Substances Act for which a sentence of 5

16 or more years may be imposed or had previously

17 been convicted of engaging in a continuing criminal

18 enterprise.

19 ‘‘(13) CONTINUING CRIMINAL ENTERPRISE IN20 VOLVING DRUG SALES TO MINORS.—The defendant

21 committed the offense in the course of engaging in

22 a continuing criminal enterprise in violation of sec23 tion 408(c) of the Controlled Substances Act and

24 that violation involved the distribution of drugs to
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1 persons under the age of 21 in violation of section

2 418 of such Act.

3 ‘‘(14) HIGH PUBLIC OFFICIALS.—The defend4 ant committed the offense against—

5 ‘‘(A) the President of the United States,

6 the President-elect, the Vice President, the

7 Vice-President-elect, the Vice-President-des8 ignate, or, if there is no Vice President, the of9 ficer next in order of succession to the office of

10 the President of the United States, or any per11 son who is acting as President under the Con12 stitution and laws of the United States;

13 ‘‘(B) a Chief of State, head of government,

14 or the political equivalent, of a foreign nation;

15 ‘‘(C) a foreign official listed in section

16 1116(b)(3)(A) of this title, if the official is in

17 the United States on official business; or

18 ‘‘(D) a Federal public servant who is a

19 judge, a law enforcement officer, or an em20 ployee of a United States penal or correctional

21 institution—

22 ‘‘(i) while he or she is engaged in the

23 performance of his or her official duties;

24 ‘‘(ii) because of the performance of his

25 or her official duties; or
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1 ‘‘(iii) because of his or her status as

2 a public servant.

3 For purposes of this subparagraph, a ‘law en4 forcement officer’ is a public servant authorized

5 by law or by a Government agency or Congress

6 to conduct or engage in the prevention, inves7 tigation, or prosecution or adjudication of an

8 offense, and includes those engaged in correc9 tions, parole, or probation functions.

10 ‘‘(15) PRIOR CONVICTION OF SEXUAL ASSAULT

11 OR CHILD MOLESTATION.—In the case of an offense

12 under chapter 109A (sexual abuse) or chapter 110

13 (sexual abuse of children), the defendant has pre14 viously been convicted of a crime of sexual assault

15 or crime of child molestation.

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

17 whether any other aggravating factor for which notice has

18 been given exists.

19 ‘‘§ 3593. Special hearing to determine whether a sen20 tence of death is justified

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

22 involving an offense described in section 3591, the attor23 ney for the government believes that the circumstances of

24 the offense are such that a sentence of death is justified

25 under this chapter, the attorney shall, a reasonable time
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1 before the trial or before acceptance by the court of a plea

2 of guilty, sign and file with the court, and serve on the

3 defendant, a notice—

4 ‘‘(1) stating that the government believes that

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

6 defendant is convicted, a sentence of death is justi7 fied under this chapter and that the government will

8 seek the sentence of death; and

9 ‘‘(2) setting forth the aggravating factor or fac10 tors that the government, if the defendant is con11 victed, proposes to prove as justifying a sentence of

12 death.

13 The factors for which notice is provided under this sub14 section may include factors concerning the effect of the

15 offense on the victim and the victim’s family, and may

16 include oral testimony, a victim impact statement that

17 identifies the victim of the offense and the extent and

18 scope of the injury and loss suffered by the victim and

19 the victim’s family, and any other relevant information.

20 The court may permit the notice to include any aggravat21 ing factor that is not an element of the underlying offense.

22 The court may also permit the attorney for the govern23 ment to amend the notice upon a showing of good cause.

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

25 attorney for the government has filed a notice as required
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1 under subsection (a) and the defendant is found guilty of

2 or pleads guilty to an offense described in section 3591,

3 the judge who presided at the trial or before whom the

4 guilty plea was entered, or another judge if that judge is

5 unavailable, shall conduct a separate sentencing hearing

6 to determine the punishment to be imposed. The hearing

7 shall be conducted—

8 ‘‘(1) before the jury that determined the de9 fendant’s guilt;

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

11 the hearing if—

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

13 plea of guilty;

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

15 trial before the court sitting without a jury;

16 ‘‘(C) the jury that determined the defend17 ant’s guilt was discharged for good cause; or

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

19 under this section, reconsideration of the sen20 tence under this section is necessary; or

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

22 the defendant and with the approval of the attorney

23 for the government.

24 A jury impaneled pursuant to paragraph (2) shall consist

25 of 12 members, unless, at any time before the conclusion
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1 of the hearing, the parties stipulate, with the approval of

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

3 ‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC4 TORS.—Notwithstanding rule 32(c) of the Federal Rules

5 of Criminal Procedure, when a defendant is found guilty

6 or pleads guilty to an offense under section 3591, no

7 presentence report shall be prepared. At the sentencing

8 hearing, information may be presented as to any matter

9 relevant to the sentence, including any mitigating or ag10 gravating factor permitted or required to be considered

11 under section 3592. Information presented may include

12 the trial transcript and exhibits if the hearing is held be13 fore a jury or judge not present during the trial. The de14 fendant may present any information relevant to a miti15 gating factor. The government may present any informa16 tion relevant to an aggravating factor for which notice has

17 been provided under subsection (a). The government and

18 the defendant shall be permitted to rebut any information

19 received at the hearing, and shall be given fair opportunity

20 to present argument as to the adequacy of the information

21 to establish the existence of any aggravating or mitigating

22 factor, and as to the appropriateness in the case of impos23 ing a sentence of death. The government shall open the

24 argument. The defendant shall be permitted to reply. The

25 government shall then be permitted to reply in rebuttal.
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1 The burden of establishing the existence of any aggravat2 ing factor is on the government, and is not satisfied unless

3 the existence of such a factor is established beyond a rea4 sonable doubt. The burden of establishing the existence

5 of any mitigating factor is on the defendant, and is not

6 satisfied unless the existence of such a factor is established

7 by a preponderance of the information.

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

9 if there is no jury, the court, shall consider all the informa10 tion received during the hearing. It shall return special

11 findings identifying any aggravating factor or factors set

12 forth in section 3592 found to exist and any other aggra13 vating factor for which notice has been provided under

14 subsection (a) found to exist. A finding with respect to

15 a mitigating factor may be made by 1 or more members

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

17 existence of a mitigating factor may consider such factor

18 established for purposes of this section regardless of the

19 number of jurors who concur that the factor has been es20 tablished. A finding with respect to any aggravating factor

21 must be unanimous. If no aggravating factor set forth in

22 section 3592 is found to exist, the court shall impose a

23 sentence other than death authorized by law.

24 ‘‘(e) RETURN OF A FINDING CONCERNING A SEN25 TENCE OF DEATH.—If, in the case of—
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1 ‘‘(1) an offense described in section 3591(1), an

2 aggravating factor required to be considered under

3 section 3592(b) is found to exist; or

4 ‘‘(2) an offense described in section 3591(2), an

5 aggravating factor required to be considered under

6 section 3592(c) is found to exist,

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

8 whether all the aggravating factor or factors found to exist

9 sufficiently outweigh all the mitigating factor or factors

10 found to exist to justify a sentence of death, or, in the

11 absence of a mitigating factor, whether the aggravating

12 factor or factors alone are sufficient to justify a sentence

13 of death. Based upon this consideration, the jury by unan14 imous vote, or if there is no jury, the court, shall rec15 ommend whether the defendant should be sentenced to

16 death, to life imprisonment without possibility of release,

17 or to some other lesser sentence. The jury or the court,

18 if there is no jury, regardless of its findings with respect

19 to aggravating and mitigating factors, is never required

20 to impose a death sentence and the jury shall be so in21 structed.

22 ‘‘(f) SPECIAL PRECAUTION TO ENSURE AGAINST

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

24 court, prior to the return of a finding under subsection

25 (e), shall instruct the jury that, in considering whether
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1 a sentence of death is justified, it shall not consider the

2 race, color, religious beliefs, national origin, or sex of the

3 defendant or of any victim and that the jury is not to rec4 ommend a sentence of death unless it has concluded that

5 it would recommend a sentence of death for the crime in

6 question no matter what the race, color, religious beliefs,

7 national origin, or sex of the defendant or of any victim

8 may be. The jury, upon return of a finding under sub9 section (e), shall also return to the court a certificate,

10 signed by each juror, that consideration of the race, color,

11 religious beliefs, national origin, or sex of the defendant

12 or any victim was not involved in reaching his or her indi13 vidual decision and that the individual juror would have

14 made the same recommendation regarding a sentence for

15 the crime in question no matter what the race, color, reli16 gious beliefs, national origin, or sex of the defendant or

17 any victim may be.

18 ‘‘§ 3594. Imposition of a sentence of death

19 ‘‘Upon a recommendation under section 3593(e) that

20 the defendant should be sentenced to death or life impris21 onment without possibility of release, the court shall sen22 tence the defendant accordingly. Otherwise, the court shall

23 impose any lesser sentence that is authorized by law. Not24 withstanding any other provision of law, if the maximum

25 term of imprisonment for the offense is life imprisonment,
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1 the court may impose a sentence of life imprisonment

2 without possibility of release.

3 ‘‘§ 3595. Review of a sentence of death

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

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

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

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

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

9 be consolidated with an appeal of the judgment of convic10 tion and shall have priority over all other cases.

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

12 entire record in the case, including—

13 ‘‘(1) the evidence submitted during the trial;

14 ‘‘(2) the information submitted during the sen15 tencing hearing;

16 ‘‘(3) the procedures employed in the sentencing

17 hearing; and

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

19 3593(d).

20 ‘‘(c) DECISION AND DISPOSITION.—

21 ‘‘(1) The court of appeals shall address all sub22 stantive and procedural issues raised on the appeal

23 of a sentence of death, and shall consider whether

24 the sentence of death was imposed under the influ25 ence of passion, prejudice, or any other arbitrary
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1 factor and whether the evidence supports the special

2 finding of the existence of an aggravating factor re3 quired to be considered under section 3592.

4 ‘‘(2) Whenever the court of appeals finds

5 that—

6 ‘‘(A) the sentence of death was imposed

7 under the influence of passion, prejudice, or any

8 other arbitrary factor;

9 ‘‘(B) the admissible evidence and informa10 tion adduced does not support the special find11 ing of the existence of the required aggravating

12 factor; or

13 ‘‘(C) the proceedings involved any other

14 legal error requiring reversal of the sentence

15 that was properly preserved for appeal under

16 the rules of criminal procedure,

17 the court shall remand the case for reconsideration

18 under section 3593 or imposition of a sentence other

19 than death.

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

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

23 ‘‘§ 3596. Implementation of a sentence of death

24 ‘‘(a) IN GENERAL.—A person who has been sen25 tenced to death pursuant to the provisions of this chapter
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1 shall be committed to the custody of the Attorney General

2 until exhaustion of the procedures for appeal of the judg3 ment of conviction and for review of the sentence. When

4 the sentence is to be implemented, the Attorney General

5 shall release the person sentenced to death to the custody

6 of a United States marshal, who shall supervise implemen7 tation of the sentence in the manner prescribed by the law

8 of the State in which the sentence is imposed. If the law

9 of such State does not provide for implementation of a

10 sentence of death, the court shall designate another State,

11 the law of which does provide for the implementation of

12 a sentence of death, and the sentence shall be implemented

13 in the latter State in the manner prescribed by such law.

14 ‘‘(b) PREGNANT WOMAN.—A sentence of death shall

15 not be carried out upon a woman while she is pregnant.

16 ‘‘(c) MENTAL CAPACITY.—A sentence of death shall

17 not be carried out upon a person who is mentally retarded.

18 A sentence of death shall not be carried out upon a person

19 who, as a result of mental disability, lacks the mental ca20 pacity to understand the death penalty and why it was

21 imposed on that person.

22 ‘‘§ 3597. Use of State facilities

23 ‘‘(a) IN GENERAL.—A United States marshal

24 charged with supervising the implementation of a sentence

25 of death may use appropriate State or local facilities for
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1 the purpose, may use the services of an appropriate State

2 or local official or of a person such an official employs

3 for the purpose, and shall pay the costs thereof in an

4 amount approved by the Attorney General.

5 ‘‘(b) EXCUSE OF AN EMPLOYEE ON MORAL OR RELI6 GIOUS GROUNDS.—No employee of any State department

7 of corrections, the United States Department of Justice,

8 the Federal Bureau of Prisons, or the United States Mar9 shals Service, and no employee providing services to that

10 department, bureau, or service under contract shall be re11 quired, as a condition of that employment or contractual

12 obligation, to be in attendance at or to participate in any

13 prosecution or execution under this section if such partici14 pation is contrary to the moral or religious convictions of

15 the employee. For purposes of this subsection, the term

16 ‘participation’ includes personal preparation of the con17 demned individual and the apparatus used for execution

18 and supervision of the activities of other personnel in car19 rying out such activities.

20 ‘‘§ 3598. Special provisions for Indian country

21 ‘‘Notwithstanding sections 1152 and 1153, no person

22 subject to the criminal jurisdiction of an Indian tribal gov23 ernment shall be subject to a capital sentence under this

24 chapter for any offense the Federal jurisdiction for which

25 is predicated solely on Indian country as defined in section
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1 1151 of this title, and which has occurred within the

2 boundaries of such Indian country, unless the governing

3 body of the tribe has elected that this chapter have effect

4 over land and persons subject to its criminal jurisdiction.’’.

5 (b) AMENDMENT OF CHAPTER ANALYSIS.—The

6 chapter analysis of part II of title 18, United States Code,

7 is amended by adding the following new item after the

8 item relating to chapter 227:

‘‘228. Death sentence ........................................................................ 3591.’’.

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