II

106TH CONGRESS

2D SESSION S. 3048

To institute a moratorium on the imposition of the death penalty at the

Federal level until a Commission on the Federal Death Penalty studies

its use and policies ensuring justice, fairness, and due process are implemented.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 14, 2000

Mr. FEINGOLD (for himself, Mr. WELLSTONE, and Mrs. BOXER) introduced

the following bill; which was read twice and referred to the Committee

on the Judiciary

A BILL

To institute a moratorium on the imposition of the death

penalty at the Federal level until a Commission on the

Federal Death Penalty studies its use and policies ensuring justice, fairness, and due process are implemented.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Federal Death Penalty

5 Moratorium Act of 2000’’.
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1 TITLE I—MORATORIUM ON THE

2 FEDERAL DEATH PENALTY

3 SEC. 101. FINDINGS.

4 Congress makes the following findings:

5 (1) The administration of the Federal death

6 penalty should be consistent with our Nation’s fun7 damental principles of justice, equality, and due

8 process.

9 (2) The fairness of the administration of the

10 Federal death penalty, however, has recently come

11 under serious scrutiny, specifically raising questions

12 of racial and geographic disparities:

13 (A) About three-quarters of Federal death

14 row inmates are members of minority groups.

15 (B) A report released by the Department

16 of Justice on September 12, 2000, found that

17 about 80 percent of defendants who were

18 charged with death-eligible offenses under Fed19 eral law and whose cases were submitted by the

20 United States attorneys under the Depart21 ment’s death penalty decision-making proce22 dures were African American, Hispanic Amer23 ican, or members of other minority groups.

24 (C) The Department of Justice report

25 shows that United States attorneys in only 5 of
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1 94 Federal districts—1 each in Virginia, Mary2 land, Puerto Rico, and 2 in New York—submit

3 40 percent of all cases in which the death pen4 alty is considered.

5 (D) The Department of Justice report

6 shows that United States attorneys who have

7 frequently recommended seeking the death pen8 alty are often from States with a high number

9 of executions under State law, including Texas,

10 Virginia, and Missouri.

11 (E) The Department of Justice report

12 shows that white defendants are more likely

13 than black defendants to negotiate plea bar14 gains saving them from the death penalty in

15 Federal cases.

16 (F) A study conducted by the House Judi17 ciary Subcommittee on Civil and Constitutional

18 Rights in 1994 concluded that 89 percent of de19 fendants selected for capital prosecution under

20 the Anti-Drug Abuse Act of 1988 have been ei21 ther African American or Hispanic American.

22 SEC. 102. FEDERAL DEATH PENALTY MORATORIUM.

23 The Federal Government shall not carry out any sen24 tence of death imposed under Federal law until Congress

25 considers the final findings and recommendations of the
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1 Commission on the Federal Death Penalty in the report

2 submitted under section 202(c)(2) and enacts legislation

3 repealing this section and implementing or rejecting the

4 guidelines and procedures recommended by the Commis5 sion.

6 TITLE II—COMMISSION ON THE

7 FEDERAL DEATH PENALTY

8 SEC. 201. ESTABLISHMENT OF COMMISSION.

9 (a) ESTABLISHMENT.—There is established a com10 mission to be known as the Commission on the Federal

11 Death Penalty (in this title referred to as the ‘‘Commis12 sion’’).

13 (b) MEMBERSHIP.—

14 (1) APPOINTMENT.—Members of the Commis15 sion shall be appointed by the President in consulta16 tion with the Attorney General and the Chairmen

17 and Ranking Members of the Committees on the Ju18 diciary of the House of Representatives and the Sen19 ate.

20 (2) COMPOSITION.—The Commission shall be

21 composed of 15 members, of whom—

22 (A) 3 members shall be Federal prosecu23 tors;

24 (B) 3 members shall be attorneys experi25 enced in capital defense;
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1 (C) 2 members shall be current or former

2 Federal judges;

3 (D) 2 members shall be current or former

4 Federal law enforcement officials; and

5 (E) 5 members shall be individuals from

6 the public or private sector who have knowledge

7 or expertise, whether by experience or training,

8 in matters to be studied by the Commission,

9 which may include—

10 (i) officers or employees of the Fed11 eral Government or State or local govern12 ments;

13 (ii) members of academia, nonprofit

14 organizations, the religious community, or

15 industry; and

16 (iii) other interested individuals.

17 (3) BALANCED VIEWPOINTS.—In appointing the

18 members of the Commission, the President shall, to

19 the maximum extent practicable, ensure that the

20 membership of the Commission is fairly balanced

21 with respect to the opinions of the members of the

22 Commission regarding support for or opposition to

23 the use of the death penalty.

24 (4) DATE.—The appointments of the initial

25 members of the Commission shall be made not later
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1 than 30 days after the date of enactment of this

2 Act.

3 (c) PERIOD OF APPOINTMENT; VACANCIES.—Mem4 bers shall be appointed for the life of the Commission. Any

5 vacancy in the Commission shall not affect its powers, but

6 shall be filled in the same manner as the original appoint7 ment.

8 (d) INITIAL MEETING.—Not later than 30 days after

9 all initial members of the Commission have been ap10 pointed, the Commission shall hold its first meeting.

11 (e) MEETINGS.—The Commission shall meet at the

12 call of the Chairperson.

13 (f) QUORUM.—A majority of the members of the

14 Commission shall constitute a quorum for conducting

15 business, but a lesser number of members may hold hear16 ings.

17 (g) CHAIR.—The President shall designate 1 member

18 appointed under subsection (a) to serve as the Chair of

19 the Commission.

20 (h) RULES AND PROCEDURES.—The Commission

21 shall adopt rules and procedures to govern its proceedings.

22 SEC. 202. DUTIES OF THE COMMISSION.

23 (a) STUDY.—

24 (1) IN GENERAL.—The Commission shall con25 duct a thorough study of all matters relating to the
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1 administration of the death penalty at the Federal

2 level to determine whether it comports with constitu3 tional principles and requirements of fairness, jus4 tice, equality, and due process.

5 (2) MATTERS STUDIED.—The matters studied

6 by the Commission shall include the following:

7 (A) Racial disparities in capital charging,

8 prosecuting, and sentencing decisions.

9 (B) Disproportionality in capital charging,

10 prosecuting, and sentencing decisions based on,

11 or in correlation to, the geographic location and

12 income status of defendant or any other factor

13 resulting in such disproportionality.

14 (C) Adequacy of representation of capital

15 defendants, including consideration of the ABA

16 ‘‘Guidelines for the Appointment and Perform17 ance of Counsel in Death Penalty Cases’’

18 (adopted February 1989) and Association poli19 cies intended to encourage competency of coun20 sel in capital cases (adopted February 1979,

21 February 1988, February 1990, and August

22 1996).

23 (D) Whether innocent persons have been

24 sentenced to death and the reasons these

25 wrongful convictions have occurred.
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1 (E) Whether the Federal Government

2 should seek the death penalty in any State in

3 which State statutes do not provide for imposi4 tion of the death penalty.

5 (F) Procedures to ensure that persons sen6 tenced to death have access to forensic evidence

7 and modern testing of such evidence, including

8 DNA testing, when such testing could result in

9 new evidence of innocence.

10 (G) Any other law or procedure to ensure

11 that death penalty cases are administered fairly

12 and impartially, in accordance with the Con13 stitution.

14 (b) GUIDELINES AND PROCEDURES.—

15 (1) IN GENERAL.—Based on the study con16 ducted pursuant to subsection (a), the Commission

17 shall establish guidelines and procedures for the ad18 ministration of the Federal death penalty consistent

19 with paragraph (2).

20 (2) INTENT OF GUIDELINES AND PROCE21 DURES.—The guidelines and procedures required by

22 this subsection shall—

23 (A) ensure that the death penalty cases are

24 administered fairly and impartially, in accord25 ance with due process;
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1 (B) minimize the risk that innocent per2 sons may be executed; and

3 (C) ensure that the death penalty is not

4 administered in a racially discriminatory man5 ner.

6 (c) REPORT.—

7 (1) PRELIMINARY REPORT.—Not later than 1

8 year after the date of enactment of this Act, the

9 Commission shall submit to the President, the Attor10 ney General, and the Congress a preliminary report,

11 which shall contain a preliminary statement of find12 ings and conclusions.

13 (2) FINAL REPORT.—Not later than 2 years

14 after the date of enactment of this Act, the Commis15 sion shall submit a report to the President, the At16 torney General, and the Congress which shall con17 tain a detailed statement of the findings and conclu18 sions of the Commission, together with its rec19 ommendations for such legislation and administra20 tive actions implementing the guidelines and proce21 dures as it considers appropriate.

22 SEC. 203. POWERS OF THE COMMISSION.

23 (a) INFORMATION FROM FEDERAL AND STATE

24 AGENCIES.—The Commission may secure directly from

25 any Federal or State department or agency such informa-
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1 tion as the Commission considers necessary to carry out

2 the provisions of this title. Upon request of the Chair3 person of the Commission, the head of such department

4 or agency shall furnish such information to the Commis5 sion.

6 (b) POSTAL SERVICES.—The Commission may use

7 the United States mails in the same manner and under

8 the same conditions as other departments and agencies of

9 the Federal Government.

10 (c) GIFTS.—The Commission may accept, use, and

11 dispose of gifts or donations of services or property.

12 (d) HEARINGS.—The Commission or, at its direction,

13 any subcommittee or member of the Commission, may, for

14 the purpose of carrying out the provisions of this title—

15 (1) hold such hearings, sit and act at such

16 times and places, take such testimony, receive such

17 evidence, administer such oaths; and

18 (2) require, by subpoena or otherwise, the at19 tendance and testimony of such witnesses and the

20 production of such books, records, correspondence,

21 memoranda, papers, documents, tapes, and materials

22 as the Commission or such subcommittee or member

23 considers advisable.

24 (e) ISSUANCE AND ENFORCEMENT OF SUB25 POENAS.—
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1 (1) ISSUANCE.—Subpoenas issued pursuant to

2 subsection (d) shall bear the signature of the Chair3 person of the Commission and shall be served by any

4 person or class of persons designated by the Chair5 person for that purpose.

6 (2) ENFORCEMENT.—In the case of contumacy

7 or failure to obey a subpoena issued under sub8 section (d), the district court of the United States

9 for the judicial district in which the subpoenaed per10 son resides, is served, or may be found may issue an

11 order requiring such person to appear at any des12 ignated place to testify or to produce documentary

13 or other evidence. Any failure to obey the order of

14 the court may be punished by the court as a con15 tempt.

16 (3) TESTIMONY OF PERSONS IN CUSTODY.—A

17 court of the United States within the jurisdiction in

18 which testimony of a person held in custody is

19 sought by the Commission or within the jurisdiction

20 of which such person is held in custody, may, upon

21 application by the Attorney General, issue a writ of

22 habeas corpus ad testificandum requiring the custo23 dian to produce such person before the Commission,

24 or before a member of the Commission or a member
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1 of the staff of the Commission designated by the

2 Commission for such purpose.

3 (f) WITNESS ALLOWANCES AND FEES.—The provi4 sions of section 1821 of title 28, United States Code, shall

5 apply to witnesses requested or subpoenaed to appear at

6 any hearing of the Commission. The per diem and mileage

7 allowances for witnesses shall be paid from funds available

8 to pay the expenses of the Commission.

9 SEC. 204. COMMISSION PERSONNEL MATTERS.

10 (a) COMPENSATION OF MEMBERS.—Members of the

11 Commission shall serve without compensation for their

12 services to the Commission.

13 (b) TRAVEL EXPENSES.—The members of the Com14 mission shall be allowed travel expenses, including per

15 diem in lieu of subsistence, at rates authorized for employ16 ees of agencies under subchapter I of chapter 57 of title

17 5, United States Code, while away from their homes or

18 regular places of business in the performance of services

19 for the Commission.

20 (c) STAFF.—

21 (1) IN GENERAL.—The Chairperson of the

22 Commission may, without regard to the civil service

23 laws and regulations, appoint and terminate an exec24 utive director and such other additional personnel as

25 may be necessary to enable the Commission to per-
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1 form its duties. The employment of an executive di2 rector shall be subject to confirmation by the Com3 mission.

4 (2) COMPENSATION.—The Chairperson of the

5 Commission may fix the compensation of the execu6 tive director and other personnel without regard to

7 the provisions of chapter 51 and subchapter III of

8 chapter 53 of title 5, United States Code, relating

9 to classification of positions and General Schedule

10 pay rates, except that the rate of pay for the execu11 tive director and other personnel may not exceed the

12 rate payable for level V of the Executive Schedule

13 under section 5316 of such title.

14 (d) DETAIL OF GOVERNMENT EMPLOYEES.—Any

15 Federal Government employee may be detailed to the

16 Commission without reimbursement, and such detail shall

17 be without interruption or loss of civil service status or

18 privilege.

19 (e) PROCUREMENT OF TEMPORARY AND INTERMIT20 TENT SERVICES.—The Chairperson of the Commission

21 may procure temporary and intermittent services under

22 section 3109(b) of title 5, United States Code, at rates

23 for individuals which do not exceed the daily equivalent

24 of the annual rate of basic pay prescribed for level V of

25 the Executive Schedule under section 5316 of such title.
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1 SEC. 205. TERMINATION OF THE COMMISSION.

2 The Commission shall terminate 90 days after the

3 date on which the Commission submits its report under

4 section 202.

5 SEC. 206. FUNDING.

6 (a) IN GENERAL.—The Commission may expend not

7 to exceed $850,000 as provided by subsection (b) to carry

8 out this title.

9 (b) AVAILABILITY.—Sums appropriated to the De10 partment of Justice shall be made available to carry out

11 this title.

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