II

103D CONGRESS

1ST SESSION S. 247

To establish constitutional procedures for the imposition of the death penalty

for certain Federal offenses.

IN THE SENATE OF THE UNITED STATES

JANUARY 27 (legislative day, JANUARY 5), 1993

Mr. SPECTER introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To establish constitutional procedures for the imposition of

the death penalty for certain Federal offenses.

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 ‘‘Death Penalty Act of

5 1993’’.

6 SEC. 2. DEATH PENALTY.

7 (a) IN GENERAL.—Title 18, United States Code, is

8 amended by inserting after chapter 227 the following new

9 chapter:
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1 ‘‘CHAPTER 228—DEATH PENALTY PROCEDURES

‘‘Sec.

‘‘3591. Sentence of death.

‘‘3592. 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.

‘‘3595. Review of a sentence of death.

‘‘3596. Implementation of a sentence of death.

‘‘3597. Use of State facilities.

‘‘3598. Appointment of counsel.

‘‘3599. Collateral attack on judgment imposing sentence of death.

2 ‘‘§ 3591. Sentence of death

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

4 ‘‘(1) an offense described in section 794 or sec5 tion 2381 of this title;

6 ‘‘(2) an offense described in section 1751(c) of

7 this title if the offense, as determined beyond a rea8 sonable doubt at a hearing under section 3593, con9 stitutes an attempt to murder the President of the

10 United States and results in bodily injury to the

11 President or comes dangerously close to causing the

12 death of the President; or

13 ‘‘(3) any other offense for which a sentence of

14 death is provided, if the defendant, as determined

15 beyond a reasonable doubt at a hearing under sec16 tion 3593 either—

17 ‘‘(A) intentionally killed the victim;

18 ‘‘(B) intentionally participated in an act,

19 contemplating that the life of a person would be

20 taken or intending that lethal force would be
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1 used in connection with a person, other than

2 one of the participants in the offense, and the

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

4 ‘‘(C) acting with reckless disregard for

5 human life, engaged or substantially partici6 pated in conduct which the defendant knew

7 would create a grave risk of death to another

8 person or persons and death resulted from such

9 conduct,

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

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

12 held under section 3593, it is determined that imposition

13 of a sentence of death is justified, except that no person

14 may be sentenced to death who was less than 18 years

15 of age at the time of the offense.

16 ‘‘§ 3592. Factors to be considered in determining

17 whether a sentence of death is justified

18 ‘‘(a) MITIGATING FACTORS.—In determining wheth19 er a sentence of death is justified for any offense, the jury,

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

21 the following mitigating factors and determine which, if

22 any, exist:

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

24 mental capacity to appreciate the wrongfulness of

25 the defendant’s conduct or to conform the defend-
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1 ant’s conduct to the requirements of law was signifi2 cantly impaired, regardless of whether the capacity

3 was so impaired as to constitute a defense to the

4 charge.

5 ‘‘(2) DURESS.—The defendant was under un6 usual and substantial duress, regardless of whether

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

8 defense to the charge.

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

10 defendant is punishable as a principal (as defined in

11 section 2 of title 18 of the United States Code) in

12 the offense, which was committed by another, but

13 the defendant’s participation was relatively minor,

14 regardless of whether the participation was so minor

15 as to constitute a defense to the charge.

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

17 whether any other aspect of the defendant’s character or

18 record or any other circumstances of the offense that the

19 defendant may proffer as a mitigating factor exists.

20 ‘‘(b) AGGRAVATING FACTORS FOR ESPIONAGE AND

21 TREASON.—In determining whether a sentence of death

22 is justified for an offense described in section 3591(1), the

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

24 of the following aggravating factors and determine which,

25 if any, exist:
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1 ‘‘(1) PREVIOUS ESPIONAGE OR TREASON CON2 VICTION.—The defendant has previously been con3 victed of another offense involving espionage or trea4 son for which a sentence of life imprisonment or

5 death was authorized by statute.

6 ‘‘(2) RISK OF SUBSTANTIAL DANGER TO NA7 TIONAL SECURITY.—In the commission of the of8 fense the defendant knowingly created a grave risk

9 to the national security.

10 ‘‘(3) RISK OF DEATH TO ANOTHER.—In the

11 commission of the offense the defendant knowingly

12 created a grave risk of death to another person.

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

14 whether any other aggravating factor exists.

15 ‘‘(c) AGGRAVATING FACTORS FOR HOMICIDE AND

16 FOR ATTEMPTED MURDER OF THE PRESIDENT.—In de17 termining whether a sentence of death is justified for an

18 offense described in section 3591 (2) or (6), the jury, or

19 if there is no jury, the court, shall consider each of the

20 following aggravating factors and determine which, if any,

21 exist:

22 ‘‘(1) DEATH OCCURRED DURING COMMISSION

23 OF ANOTHER CRIME.—The death occurred during

24 the commission or attempted commission of, or dur25 ing the immediate flight from the commission of, an
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1 offense under section 751 (prisoners in custody of

2 institution or officer), section 794 (gathering or de3 livering defense information to aid foreign govern4 ment), section 844(d) (transportation of explosives

5 in interstate commerce for certain purposes), section

6 844(f) (destruction of Government property by ex7 plosives), section 1118 (prisoners serving life term),

8 section 1201 (kidnapping), or section 2381 (treason)

9 of this title, section 1826 of title 28 (persons in cus10 tody as recalcitrant witnesses or hospitalized follow11 ing a finding of not guilty only by reason of insan12 ity), or section 902 (i) or (n) of the Federal Aviation

13 Act of 1958, as amended (49 U.S.C. 1472 (i) or (n)

14 (aircraft piracy)).

15 ‘‘(2) INVOLVEMENT OF FIREARM OR PREVIOUS

16 CONVICTION OF VIOLENT FELONY INVOLVING FIRE17 ARM.—The defendant—

18 ‘‘(A) during and in relation to the commis19 sion of the offense or in escaping apprehension

20 used or possessed a firearm as defined in sec21 tion 921 of this title; or

22 ‘‘(B) has previously been convicted of a

23 Federal or State offense punishable by a term

24 of imprisonment of more than one year, involv25 ing the use or attempted or threatened use of
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1 a firearm, as defined in section 921 of this title,

2 against another person.

3 ‘‘(3) PREVIOUS CONVICTION OF OFFENSE FOR

4 WHICH A SENTENCE OF DEATH OR LIFE IMPRISON5 MENT WAS AUTHORIZED.—The defendant has pre6 viously been convicted of another Federal or State

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

8 a sentence of life imprisonment or death was author9 ized by statute.

10 ‘‘(4) PREVIOUS CONVICTION OF OTHER SERI11 OUS OFFENSES.—The defendant has previously been

12 convicted of 2 or more Federal or State offenses,

13 each punishable by a term of imprisonment of more

14 than one year, committed on different occasions, in15 volving the importation, manufacture, or distribution

16 of a controlled substance (as defined in section 102

17 of the Controlled Substances Act (21 U.S.C. 802))

18 or the infliction of, or attempted infliction of, serious

19 bodily injury or death upon another person.

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

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

22 offense or in escaping apprehension, knowingly cre23 ated a grave risk of death to one or more persons

24 in addition to the victim of the offense.
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1 ‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER

2 OF COMMISSION.—The defendant committed the of3 fense in an especially heinous, cruel, or depraved

4 manner in that it involved torture or serious physical

5 abuse to the victim.

6 ‘‘(7) PROCUREMENT OF OFFENSE BY PAY7 MENT.—The defendant procured the commission of

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

9 anything of pecuniary value.

10 ‘‘(8) COMMISSION OF THE OFFENSE FOR PECU11 NIARY GAIN.—The defendant committed the offense

12 as consideration for the receipt, or in the expectation

13 of the receipt, of anything of pecuniary value.

14 ‘‘(9) SUBSTANTIAL PLANNING AND

15 PREMEDITATION.—The defendant committed the of16 fense after substantial planning and premeditation.

17 ‘‘(10) VULNERABILITY OF VICTIM.—The victim

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

19 infirmity.

20 ‘‘(11) TYPE OF VICTIM.—The defendant com21 mitted the offense against—

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

23 the President-elect, the Vice President, the Vice

24 President-elect, the Vice President-designate,

25 or, if there is no Vice President, the officer next
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1 in order of succession to the office of the Presi2 dent of the United States, or any person who

3 is acting as President under the Constitution

4 and laws of the United States;

5 ‘‘(B) a chief of state, head of government,

6 or the political equivalent, of a foreign nation;

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

8 1116(b)(3)(A) of this title, if that official is in

9 the United States on official business; or

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

11 judge, a Federal law enforcement officer, an

12 employee (including a volunteer or contract em13 ployee) of a Federal prison, or an official of the

14 Federal Bureau of Prisons—

15 ‘‘(i) while such public servant is en16 gaged in the performance of the public

17 servant’s official duties;

18 ‘‘(ii) because of the performance of

19 such public servant’s official duties; or

20 ‘‘(iii) because of such public servant’s

21 status as a public servant.

22 For purposes of this paragraph, the terms ‘Presi23 dent-elect’ and ‘Vice President-elect’ mean such per24 sons as are the apparent successful candidates for

25 the offices of President and Vice President, respec-
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1 tively, as ascertained from the results of the general

2 elections held to determine the electors of President

3 and Vice President in accordance with title 3, Unit4 ed States Code, sections 1 and 2; a ‘Federal law en5 forcement officer’ is a public servant authorized by

6 law or by a government agency or Congress to con7 duct or engage in the prevention, investigation, or

8 prosecution of an offense; ‘Federal prison’ means a

9 Federal correctional, detention, or penal facility,

10 Federal community treatment center, or Federal

11 halfway house, or any such prison operated under

12 contract with the Federal Government; and ‘Federal

13 judge’ means any judicial officer of the United

14 States, and includes a justice of the Supreme Court

15 and a magistrate.

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

17 whether any other aggravating factor exists.

18 ‘‘§ 3593. Special hearing to determine whether a sen19 tence of death is justified

20 ‘‘(a) NOTICE BY THE GOVERNMENT.—Whenever the

21 Government intends to seek the death penalty for an of22 fense described in section 3591, the attorney for the Gov23 ernment, a reasonable time before the trial, or before ac24 ceptance by the court of a plea of guilty, or at such time

25 thereafter as the court may permit upon a showing of good
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1 cause, shall sign and file with the court, and serve on the

2 defendant, a notice—

3 ‘‘(1) that the Government in the event of con4 viction will seek the sentence of death; and

5 ‘‘(2) setting forth the aggravating factor or fac6 tors enumerated in section 3592 and any other ag7 gravating factor not specifically enumerated in sec8 tion 3592, that the Government, if the defendant is

9 convicted, will seek to prove as the basis for the

10 death penalty.

11 The court may permit the attorney for the Government

12 to amend the notice upon a showing of good cause.

13 ‘‘(b) HEARING BEFORE A COURT OR JURY.—When

14 the attorney for the Government has filed a notice as re15 quired under subsection (a) of this section and the defend16 ant is found guilty of an offense described in section 3591

17 of this title, the judge who presided at the trial or before

18 whom the guilty plea was entered, or another judge if that

19 judge is unavailable, shall conduct a separate sentencing

20 hearing to determine the punishment to be imposed. Be21 fore such a hearing, no presentence report shall be pre22 pared by the United States Probation Service, notwith23 standing the Federal Rules of Criminal Procedure. The

24 hearing shall be conducted—
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1 ‘‘(1) before the jury that determined the de2 fendant’s guilt;

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

4 the hearing if—

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

6 plea of guilty;

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

8 trial before the court sitting without a jury;

9 ‘‘(C) the jury that determined the defend10 ant’s guilt was discharged for good cause; or

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

12 under this section, reconsideration of the sen13 tence under the section is necessary; or

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

15 defendant and with the approval of the attorney for

16 the Government.

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

18 of 12 members, unless, at any time before the conclusion

19 of the hearing, the parties stipulate, with the approval of

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

21 ‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC22 TORS.—At the hearing, information may be presented as

23 to—
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1 ‘‘(1) any matter relating to any mitigating fac2 tor listed in section 3592 and any other mitigating

3 factor; and

4 ‘‘(2) any matter relating to any aggravating

5 factor listed in section 3592 for which notice has

6 been provided under subsection (a)(2) and (if infor7 mation is presented relating to such a listed factor)

8 any other aggravating factor for which notice has

9 been so provided.

10 Information presented may include the trial transcript and

11 exhibits. Any other information relevant to such mitigat12 ing or aggravating factors may be presented by either the

13 government or the defendant, regardless of its admissibil14 ity under the rules governing admission of evidence at

15 criminal trials, except that information may be excluded

16 if its probative value is outweighed by the danger of creat17 ing unfair prejudice, confusing the issues, or misleading

18 the jury. The attorney for the Government and for the

19 defendant shall be permitted to rebut any information re20 ceived at the hearing, and shall be given fair opportunity

21 to present argument as to the adequacy of the information

22 to establish the existence of any aggravating or mitigating

23 factor, and as to the appropriateness in that case of im24 posing a sentence of death. The attorney for the Govern25 ment shall open the argument. The defendant shall be per-
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1 mitted to reply. The Government shall then be permitted

2 to reply in rebuttal. The burden of establishing the exist3 ence of an aggravating factor is on the Government, and

4 is not satisfied unless the existence of such a factor is es5 tablished beyond a reasonable doubt. The burden of estab6 lishing the existence of any mitigating factor is on the de7 fendant, and is not satisfied unless the existence of such

8 a factor is established by a preponderance of the evidence.

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

10 if there is no jury, the court, shall consider all the informa11 tion received during the hearing. It shall return special

12 findings identifying any aggravating factor or factors set

13 forth in section 3592 of this title found to exist and any

14 other aggravating factor for which notice has been pro15 vided under subsection (a) found to exist. A finding with

16 respect to a mitigating factor may be made by one or more

17 members of the jury, and any member of the jury who

18 finds the existence of a mitigating factor may consider

19 such factor established for purposes of this section regard20 less of the number of jurors who concur that the factor

21 has been established. A finding with respect to any aggra22 vating factor must be unanimous. If no aggravating factor

23 set forth in section 3592 of this title is found to exist,

24 the court shall impose a sentence other than death author25 ized by law.
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1 ‘‘(e) RETURN OF A FINDING CONCERNING A SEN2 TENCE OF DEATH.—If, in the case of—

3 ‘‘(1) an offense described in section 3591(1) of

4 this title, an aggravating factor required to be con5 sidered under section 3592(b) of this title is found

6 to exist; or

7 ‘‘(2) an offense described in section 3591 (2) or

8 (6) of this title, an aggravating factor required to be

9 considered under section 3592(c) of this title is

10 found to exist;

11 the jury, or if there is no jury, the court, shall then con12 sider whether the aggravating factor or factors found to

13 exist outweigh any mitigating factor or factors. The jury,

14 or if there is no jury, the court, shall recommend a sen15 tence of death if it unanimously finds at least one aggra16 vating factor and no mitigating factor or if it finds one

17 or more aggravating factors which outweigh any mitigat18 ing factors. In any other case, it shall not recommend a

19 sentence of death. The jury shall be instructed that it

20 must avoid any influence of sympathy, sentiment, passion,

21 prejudice, or other arbitrary factors in its decision, and

22 should make such a recommendation as the information

23 warrants.

24 ‘‘(f) SPECIAL PRECAUTION TO ASSURE AGAINST

25 DISCRIMINATION.—In a hearing held before a jury, the
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1 court, before the return of a finding under subsection (e)

2 of this section, shall instruct the jury that, in considering

3 whether a sentence of death is justified, it shall not con4 sider the race, color, religious beliefs, national origin, or

5 sex of the defendant or of any victim and that the jury

6 is not to recommend a sentence of death unless it has con7 cluded that it would recommend a sentence of death for

8 the crime in question no matter what the race, color, reli9 gious beliefs, national origin, or sex of the defendant or

10 of any victim may be. The jury, upon return of a finding

11 under subsection (e) of this section, shall also return to

12 the court a certificate, signed by each juror, that consider13 ation of the race, color, religious beliefs, national origin,

14 or sex of the defendant or any victim was not involved

15 in reaching the juror’s individual decision and that the in16 dividual juror would have made the same recommendation

17 regarding a sentence for the crime in question no matter

18 what the race, color, religious beliefs, national origin, or

19 sex of the defendant or any victim may be.

20 ‘‘§ 3594. Imposition of a sentence of death

21 ‘‘Upon the recommendation under section 3593(e) of

22 this title that a sentence of death be imposed, the court

23 shall sentence the defendant to death. Otherwise the court

24 shall impose a sentence, other than death, authorized by

25 law. Notwithstanding any other provision of law, if the
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1 maximum term of imprisonment for the offense is life im2 prisonment, the court may impose a sentence of life im3 prisonment without the possibility of release or furlough.

4 ‘‘§ 3595. Review of a sentence of death

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

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

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

8 appeal of the sentence must be filed within the time speci9 fied for the filing of a notice of appeal of the judgment

10 of conviction. An appeal of the sentence under this section

11 may be consolidated with an appeal of the judgment of

12 conviction and shall have priority over all other cases.

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

14 entire record in the case, including—

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

16 ‘‘(2) the information submitted during the sen17 tencing hearing;

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

19 hearing; and

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

21 3593(d) of this title.

22 ‘‘(c) DECISION AND DISPOSITION.—

23 ‘‘(1) If the court of appeals determines that—
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1 ‘‘(A) the sentence of death was not im2 posed under the influence of passion, prejudice,

3 or any other arbitrary factor; and

4 ‘‘(B) the evidence and information support

5 the special findings of the existence of an ag6 gravating factor or factors;

7 it shall affirm the sentence.

8 ‘‘(2) In any other case, the court of appeals

9 shall remand the case for reconsideration under sec10 tion 3593 of this title or for imposition of another

11 authorized sentence as appropriate.

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

13 the reasons for its disposition of an appeal of sen14 tence of death under this section.

15 ‘‘§ 3596. Implementation of a sentence of death

16 ‘‘(a) IN GENERAL.—A person who has been sen17 tenced to death pursuant to this chapter shall be commit18 ted to the custody of the Attorney General until exhaus19 tion of the procedures for appeal of the judgment of con20 viction and for review of the sentence. When the sentence

21 is to be implemented, the Attorney General shall release

22 the person sentenced to death to the custody of a United

23 States marshal, who shall supervise implementation of the

24 sentence in the manner prescribed by the law of the State

25 in which the sentence is imposed. If the law of such State
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1 does not provide for implementation of a sentence of

2 death, the court shall designate another State, the law of

3 which does so provide, and the sentence shall be imple4 mented in the manner prescribed by such law.

5 ‘‘(b) IMPAIRED MENTAL CAPACITY, AGE, OR PREG6 NANCY.—A sentence of death shall not be carried out upon

7 a person who is under 18 years of age at the time the

8 crime was committed. A sentence of death shall not be

9 carried out upon a person who is mentally retarded. A sen10 tence of death shall not be carried out upon a person who,

11 as a result of mental disability—

12 ‘‘(1) cannot understand the nature of the pend13 ing proceedings, what such person was tried for, the

14 reason for the punishment, or the nature of the pun15 ishment; or

16 ‘‘(2) lacks the capacity to recognize or under17 stand facts which would make the punishment un18 just or unlawful or lacks the ability to convey such

19 information to counsel or to the court.

20 A sentence of death shall not be carried out upon a woman

21 while she is pregnant.

22 ‘‘(c) EMPLOYEES MAY DECLINE TO PARTICIPATE.—

23 No employee of any State department of corrections or

24 the Federal Bureau of Prisons and no employee providing

25 services to that department or bureau under contract shall
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1 be required, as a condition of that employment or contrac2 tual obligation, to be in attendance at or to participate

3 in any execution carried out under this section, if such

4 participation is contrary to the moral or religious convic5 tions of the employee. For purposes of this subsection, the

6 term ‘participate in any execution’ includes personal prep7 aration of the condemned individual and the apparatus

8 used for the execution, and supervision of the activities

9 of other personnel in carrying out such activities.

10 ‘‘§ 3597. Use of State facilities

11 ‘‘A United States marshal charged with supervising

12 the implementation of a sentence of death may use appro13 priate State or local facilities for the purpose, may use

14 the services of an appropriate State or local official or of

15 a person such as an official employed for the purpose, and

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

17 Attorney General.

18 ‘‘§ 3598. Appointment of counsel

19 ‘‘(a) FEDERAL CAPITAL CASES.—

20 ‘‘(1) REPRESENTATION OF INDIGENT DEFEND21 ANTS.—Notwithstanding any other provision of law,

22 this subsection shall govern the appointment of

23 counsel for any defendant against whom a sentence

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

25 has been imposed, for an offense against the United
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1 States, where the defendant is or becomes financially

2 unable to obtain adequate representation. Such a de3 fendant shall be entitled to appointment of counsel

4 from the commencement of trial proceedings until

5 one of the conditions specified in section 3599(b) of

6 this title has occurred.

7 ‘‘(2) REPRESENTATION BEFORE FINALITY OF

8 JUDGMENT.—A defendant within the scope of this

9 subsection shall have counsel appointed for trial rep10 resentation as provided in section 3005 of this title.

11 At least one counsel so appointed shall continue to

12 represent the defendant until the conclusion of direct

13 review of the judgment, unless replaced by the court

14 with other qualified counsel.

15 ‘‘(3) REPRESENTATION AFTER FINALITY OF

16 JUDGMENT.—When a judgment imposing a sentence

17 of death has become final through affirmance by the

18 Supreme Court on direct review, denial of certiorari

19 by the Supreme Court on direct review, or expiration

20 of the time for seeking direct review in the court of

21 appeals or the Supreme Court, the Government shall

22 promptly notify the district court that imposed the

23 sentence. Within 10 days of receipt of such notice,

24 the district court shall proceed to make a determina25 tion whether the defendant is eligible under this sub-
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1 section for appointment of counsel for subsequent

2 proceedings. On the basis of the determination, the

3 court shall issue an order (A) appointing one or

4 more counsel to represent the defendant upon a

5 finding that the defendant is financially unable to

6 obtain adequate representation and wishes to have

7 counsel appointed or is unable competently to decide

8 whether to accept or reject appointment of counsel;

9 (B) finding, after a hearing if necessary, that the

10 defendant rejected appointment of counsel and made

11 the decision with an understanding of its legal con12 sequences; or (C) denying the appointment of coun13 sel upon a finding that the defendant is financially

14 able to obtain adequate representation. Counsel ap15 pointed pursuant to this paragraph shall be different

16 from the counsel who represented the defendant at

17 trial and on direct review unless the defendant and

18 counsel request a continuation or renewal of the ear19 lier representation.

20 ‘‘(4) STANDARDS FOR COMPETENCE OF COUN21 SEL.—In relation to a defendant who is entitled to

22 appointment of counsel under this subsection, at

23 least one counsel appointed for trial representation

24 must have been admitted to the bar for at least 5

25 years and have at least 3 years of experience in the
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1 trial of felony cases in the Federal district courts. If

2 new counsel is appointed after judgment, at least

3 one counsel so appointed must have been admitted

4 to the bar for at least 5 years and have at least 3

5 years of experience in the litigation of felony cases

6 in the Federal courts of appeals or the Supreme

7 Court. The court, for good cause, may appoint coun8 sel who does not meet these standards, but whose

9 background, knowledge, or experience would other10 wise enable him or her to properly represent the de11 fendant, with due consideration of the seriousness of

12 the penalty and the nature of the litigation.

13 ‘‘(5) APPLICABILITY OF CRIMINAL JUSTICE

14 ACT.—Except as otherwise provided in this sub15 section, the provisions of section 3006A of this title

16 shall apply to appointments under this subsection.

17 ‘‘(6) CLAIMS OF INEFFECTIVENESS OF COUN18 SEL.—The ineffectiveness or incompetence of coun19 sel during proceedings on a motion under section

20 2255 of title 28, United States Code, in a capital

21 case shall not be a ground for relief from the judg22 ment or sentence in any proceeding. This limitation

23 shall not preclude the appointment of different coun24 sel at any stage of the proceedings.
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1 ‘‘(b) STATE CAPITAL CASES.—The laws of the Unit2 ed States shall not be construed to impose any require3 ment with respect to the appointment of counsel in any

4 proceeding in a State court or other State proceeding in

5 a capital case, other than any requirement imposed by the

6 Constitution of the United States. In a proceeding under

7 section 2254 of title 28, United States Code, relating to

8 a State capital case, or any subsequent proceeding on re9 view, appointment of counsel for a petitioner who is or

10 becomes financially unable to afford counsel shall be in

11 the discretion of the court, except as provided by a rule

12 promulgated by the Supreme Court pursuant to statutory

13 authority. Such appointment of counsel shall be governed

14 by the provisions of section 3006A of this title.

15 ‘‘§ 3599. Collateral attack on judgment imposing sen16 tence of death

17 ‘‘(a) TIME FOR MAKING SECTION 2255 MOTION.—

18 In a case in which a sentence of death has been imposed,

19 and the judgment has become final as described in section

20 3598(a)(3) of this title, a motion in the case under section

21 2255 of title 28, United States Code, must be filed within

22 90 days of the issuance of the order relating to appoint23 ment of counsel under section 3598(a)(3) of this title. The

24 court in which the motion is filed, for good cause shown,

25 may extend the time for filing for a period not exceeding
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1 60 days. A motion described in this section shall have pri2 ority over all noncapital matters in the district court, and

3 in the court of appeals on review of the district court’s

4 decision.

5 ‘‘(b) STAY OF EXECUTION.—The execution of a sen6 tence of death shall be stayed in the course of direct review

7 of the judgment and during the litigation of an initial mo8 tion in the case under section 2255 of title 28, United

9 States Code. The stay shall run continuously following im10 position of the sentence and shall expire if—

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

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

13 the time specified in subsection (a), or fails to make

14 a timely application for court of appeals review fol15 lowing the denial of such a motion by a district

16 court;

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

18 of appeals review under section 2255 of title 28,

19 United States Code, the motion under that section

20 is denied and (A) the time for filing a petition for

21 certiorari has expired and no petition has been filed;

22 (B) a timely petition for certiorari was filed and the

23 Supreme Court denied the petition; or (C) a timely

24 petition for certiorari was filed and upon consider25 ation of the case, the Supreme Court disposed of it
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1 in a manner that left the capital sentence undis2 turbed; or

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

4 counsel and after having been advised of the con5 sequences of his decision, the defendant waives the

6 right to file a motion under section 2255 of title 28,

7 United States Code.

8 ‘‘(c) FINALITY OF THE DECISION ON REVIEW.—If

9 one of the conditions specified in subsection (b) has oc10 curred, no court thereafter shall have the authority to

11 enter a stay of execution or grant relief in the case un12 less—

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

14 is a claim not presented in earlier proceedings;

15 ‘‘(2) the failure to raise the claim is (A) the re16 sult of governmental action in violation of the Con17 stitution or laws of the United States; (B) the result

18 of the Supreme Court recognition of a new Federal

19 right that is retroactively applicable; or (C) based on

20 a factual predicate that could not have been discov21 ered through the exercise of reasonable diligence in

22 time to present the claim in earlier proceedings; and

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

24 sufficient, if proven, to undermine the court’s con25 fidence in the determination of guilt on the offense
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1 or offenses for which the death penalty was im2 posed.’’.

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

4 at the beginning of part II of title 28, United States Code,

5 is amended by inserting after the item relating to chapter

6 227 the following new item:

‘‘228. Death penalty procedures ................................................... 3591’’.

7 SEC. 3. CONFORMING AMENDMENT RELATING TO DE8 STRUCTION OF AIRCRAFT OR AIRCRAFT FA9 CILITIES.

10 Section 34 of title 18, United States Code, is amend11 ed by striking the comma after ‘‘imprisonment for life’’

12 and all that follows and inserting a period.

13 SEC. 4. CONFORMING AMENDMENT RELATING TO ESPIO14 NAGE.

15 Section 794(a) of title 18, United States Code, is

16 amended by inserting before the period at the end the fol17 lowing: ‘‘, except that the sentence of death shall not be

18 imposed unless the jury or, if there is no jury, the court,

19 further finds beyond a reasonable doubt at a hearing

20 under section 3593 of this title that the offense directly

21 concerned nuclear weaponry, military spacecraft and sat22 ellites, early warning systems, or other means of defense

23 or retaliation against large-scale attack; war plans; com24 munications intelligence or cryptographic information;

25 sources or methods of intelligence or counterintelligence
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1 operations; or any other major weapons system or major

2 element of defense strategy’’.

3 SEC. 5. CONFORMING AMENDMENT RELATING TO TRANS4 PORTING EXPLOSIVES.

5 Section 844(d) of title 18, United States Code, is

6 amended by striking ‘‘as provided in section 34 of this

7 title’’.

8 SEC. 6. CONFORMING AMENDMENT RELATING TO MALI9 CIOUS DESTRUCTION OF FEDERAL PROP10 ERTY BY EXPLOSIVES.

11 Section 844(f) of title 18, United States Code, is

12 amended by striking ‘‘as provided in section 34 of this

13 title’’.

14 SEC. 7. CONFORMING AMENDMENT RELATING TO MALI15 CIOUS DESTRUCTION OF INTERSTATE PROP16 ERTY BY EXPLOSIVES.

17 Section 844(i) of title 18, United States Code, is

18 amended by striking ‘‘as provided in section 34 of this

19 title’’.

20 SEC. 8. CONFORMING AMENDMENT RELATING TO MURDER.

21 The second paragraph of section 1111(b) of title 18,

22 United States Code, is amended to read as follows:

23 ‘‘Whoever is guilty of murder in the first degree shall

24 be punished by death or by imprisonment for life;’’.
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1 SEC. 9. CONFORMING AMENDMENT RELATING TO KILLING

2 OFFICIAL GUESTS OR INTERNATIONALLY

3 PROTECTED PERSONS.

4 Section 1116(a) of title 18, United States Code, is

5 amended by striking ‘‘any such person who is found guilty

6 of murder in the first degree shall be sentenced to impris7 onment for life, and’’.

8 SEC. 10. MURDER BY FEDERAL PRISONER.

9 (a) IN GENERAL.—Chapter 51 of title 18, United

10 States Code, is amended by adding at the end the follow11 ing:

12 ‘‘§ 1118. Murder by a Federal prisoner

13 ‘‘(a) Whoever, while confined in a Federal prison

14 under a sentence for a term of life imprisonment, murders

15 another shall be punished by death or by life imprisonment

16 without the possibility of release or furlough.

17 ‘‘(b) For the purposes of this section—

18 ‘‘(1) ‘Federal prison’ means any Federal correc19 tional, detention, or penal facility, Federal commu20 nity treatment center, or Federal halfway house, or

21 any such prison operated under contract with the

22 Federal Government;

23 ‘‘(2) ‘term of life imprisonment’ means a sen24 tence for the term of natural life, a sentence com25 muted to natural life, an indeterminate term of a
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1 minimum of at least 15 years and a maximum of

2 life, or an unexecuted sentence of death.’’.

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

4 at the beginning of chapter 51 of title 18, United States

5 Code, is amended by adding at the end the following:

‘‘1118. Murder by a Federal prisoner.’’.

6 SEC. 11. DEATH PENALTY RELATING TO KIDNAPING.

7 Section 1201(a) of title 18, United States Code, is

8 amended by inserting ‘‘and, if the death of any person re9 sults, shall be punished by death or life imprisonment’’

10 after ‘‘or for life’’ .

11 SEC. 12. DEATH PENALTY RELATING TO HOSTAGE TAKING.

12 Section 1203(a) of title 18, United States Code, is

13 amended by inserting ‘‘and, if the death of any person re14 sults, shall be punished by death or life imprisonment’’

15 after ‘‘or for life’’ .

16 SEC. 13. CONFORMING AMENDMENT RELATING TO MAIL17 ABILITY OF INJURIOUS ARTICLES.

18 The last paragraph of section 1716 of title 18, United

19 States Code, is amended by striking the comma after ‘‘im20 prisonment for life’’ and all that follows and inserting a

21 period.

22 SEC. 14. CONFORMING AMENDMENT RELATING TO PRESI23 DENTIAL ASSASSINATION.

24 Subsection (c) of section 1751 of title 18, United

25 States Code, is amended to read as follows:
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1 ‘‘(c) Whoever attempts to murder or kidnap any indi2 vidual designated in subsection (a) of this section shall be

3 punished—

4 ‘‘(1) by imprisonment for any term of years or

5 for life, or

6 ‘‘(2) by death or imprisonment for any term of

7 years or for life, if the conduct constitutes an at8 tempt to murder the President of the United States

9 and results in bodily injury to the President or oth10 erwise comes dangerously close to causing the death

11 of the President.’’.

12 SEC. 15. CONFORMING AMENDMENT RELATING TO MUR13 DER FOR HIRE.

14 Section 1958(a) of title 18, United States Code, is

15 amended by striking ‘‘and if death results, shall be subject

16 to imprisonment for any term of years or for life, or shall

17 be fined not more than $50,000, or both’’ and inserting

18 ‘‘and if death results, shall be punished by death or life

19 imprisonment, or shall be fined under this title, or both’’.

20 SEC. 16. CONFORMING AMENDMENT RELATING TO VIO21 LENT CRIMES IN AID OF RACKETEERING AC22 TIVITY.

23 Paragraph (1) of section 1959(a) of title 18, United

24 States Code, is amended to read as follows:
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1 ‘‘(1) for murder, by death or life imprisonment,

2 or a fine in accordance with this title, or both; and

3 for kidnapping, by imprisonment for any term of

4 years or for life, or a fine in accordance with this

5 title, or both;’’.

6 SEC. 17. CONFORMING AMENDMENT RELATING TO WRECK7 ING TRAINS.

8 The second to the last paragraph of section 1992 of

9 title 18, United States Code, is amended by striking the

10 comma after ‘‘imprisonment for life’’ and all that follows

11 and inserting a period.

12 SEC. 18. CONFORMING AMENDMENT RELATING TO BANK

13 ROBBERY.

14 Section 2113(e) of title 18, United States Code, is

15 amended by striking ‘‘or punished by death if the verdict

16 of the jury shall so direct’’ and inserting ‘‘or if death re17 sults shall be punished by death or life imprisonment’’.

18 SEC. 19. CONFORMING AMENDMENT RELATING TO TER19 RORIST ACTS.

20 Paragraph (1) of subsection 2331(a) of title 18 of

21 the United States Code is amended to read as follows:

22 ‘‘(1)(A) if the killing is a first degree murder

23 as defined in section 1111(a) of this title, be pun24 ished by death or imprisonment for any term of
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1 years or for life, or be fined under this title, or both;

2 and

3 ‘‘(B) if the killing is a murder other than a first

4 degree murder as defined in section 1111(a) of this

5 title, be fined under this title or imprisoned for any

6 term of years or for life, or both so fined and so im7 prisoned;’’.

8 SEC. 20. CONFORMING AMENDMENT RELATING TO AIR9 CRAFT HIJACKING.

10 Section 903 of the Federal Aviation Act of 1958 (49

11 U.S.C. APP. 1473), is amended by striking subsection (c).

12 SEC. 21. APPLICATION TO UNIFORM CODE OF MILITARY

13 JUSTICE.

14 Chapter 228 of title 18 of the United States Code,

15 as added by this Act, does not apply to prosecutions under

16 the Uniform Code of Military Justice (10 U.S.C. 801 et

17 seq.).

18 SEC. 22. CONFORMING AMENDMENT RELATING TO GENO19 CIDE.

20 Section 1091(b)(1) of title 18, United States Code,

21 is amended by striking ‘‘a fine of not more than

22 $1,000,000 and imprisonment for life’’ and inserting in

23 lieu thereof ‘‘by death or imprisonment for life, or a fine

24 of not more than $1,000,000, or both’’.
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1 SEC. 23. CONFORMING AMENDMENT RELATING TO PRO2 TECTION OF COURT OFFICERS AND JURORS.

3 Section 1503 of title 18, United States Code, is

4 amended—

5 (1) by striking ‘‘Whoever corruptly’’ and insert6 ing ‘‘(a) Whoever corruptly’’;

7 (2) in subsection (a) (as so designated), by

8 striking ‘‘fined not more than $5,000 or imprisoned

9 not more than five years, or both’’ and inserting

10 ‘‘punished as provided in subsection (b)’’; and

11 (3) by adding at the end the following:

12 ‘‘(b) The punishment for an offense under this sec13 tion is—

14 ‘‘(1) in the case of a killing, the punishment

15 provided in sections 1111 and 1112 of this title;

16 ‘‘(2) in the case of an attempted killing, impris17 onment for not more than 20 years; and

18 ‘‘(3) in any other case, imprisonment for not

19 more than 10 years.’’.

20 SEC. 24. CONFORMING AMENDMENT RELATING TO PROHI21 BITION OF RETALIATORY KILLINGS OF WIT22 NESSES, VICTIMS, AND INFORMANTS.

23 Section 1513 of title 18, United States Code, is

24 amended—

25 (1) by redesignating subsections (a) and (b) as

26 subsections (b) and (c) respectively;
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1 (2) by inserting before subsection (b) (as so re2 designated) the following:

3 ‘‘(a)(1) Whoever kills or attempts to kill another per4 son with intent to retaliate against any person for—

5 ‘‘(A) the attendance of a witness or party at an

6 official proceeding, or any testimony given or any

7 record, document, or other object produced by a wit8 ness in an official proceeding; or

9 ‘‘(B) any information relating to the commis10 sion or possible commission of a Federal offense or

11 a violation of conditions of probation, parole, or re12 lease pending judicial proceedings given by a person

13 to a law enforcement officer;

14 shall be punished as provided in paragraph (2).

15 ‘‘(2) The punishment for an offense under this sub16 section is—

17 ‘‘(A) in the case of a killing, the punishment

18 provided in sections 1111 and 1112 of this title; and

19 ‘‘(B) in the case of an attempt, imprisonment

20 for not more than 20 years.’’.

21 SEC. 25. APPLICATION TO DRUG KINGPINS.

22 Title II of the Controlled Substances Act (21 U.S.C.

23 801 et seq.) is amended by inserting after section 408 the

24 following:
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1 ‘‘DEATH PENALTY FOR DRUG KINGPINS

2 ‘‘SEC. 408A. (a) IN GENERAL.—A defendant who has

3 been found guilty of—

4 ‘‘(1) an offense referred to in section 408(c)(1)

5 (21 U.S.C. 848(c)(1)), committed as part of a con6 tinuing criminal enterprise offense under the condi7 tions described in subsection (b) of that section;

8 ‘‘(2) an offense referred to in section 408(c)(1)

9 (21 U.S.C. 848(c)(1)), committed as part of a con10 tinuing criminal enterprise offense under that sec11 tion, where the defendant is a principal adminis12 trator, organizer or leader of such an enterprise, and

13 the defendant, in order to obstruct the investigation

14 or prosecution of an enterprise or an offense in15 volved in the enterprise, attempts to kill or know16 ingly directs, advises, authorizes, or assists another

17 to attempt to kill any public officer, juror, witness,

18 or member of the family or household of such a per19 son; or

20 ‘‘(3) an offense constituting a felony violation of

21 this Act (21 U.S.C. 801 et seq.), the Controlled Sub22 stance Import and Export Act (21 U.S.C. 951 et

23 seq.), or the Maritime-Drug Law Enforcement Act

24 (46 U.S.C. App. 1901 et seq.), where the defendant,

25 intending to cause death or acting with reckless dis-
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1 regard for human life, engaged in such a violation,

2 and the death of another person results in the

3 course of the violation or from the use of the con4 trolled substance involved in the violation,

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

6 procedures set forth in chapter 228 of title 18, United

7 States Code, and subject to the consideration of the addi8 tional aggravating factors set forth in subsection (b), it

9 is determined that imposition of a sentence of death is

10 justified.

11 ‘‘(b) ADDITIONAL AGGRAVATING FACTORS.—In addi12 tion to the aggravating factors set forth in section 3592

13 (c) of title 18, United States Code, the following aggravat14 ing factors shall be considered in determining whether a

15 sentence of death is justified for an offense under this sec16 tion:

17 ‘‘(1) DISTRIBUTION TO PERSONS UNDER TWEN18 TY-ONE.—The offense, or a continuing criminal en19 terprise of which the offense was a part, involved a

20 violation of section 405 of this Act which was com21 mitted directly by the defendant or for which the de22 fendant would be liable under section 2 of title 18,

23 United States Code.

24 ‘‘(2) DISTRIBUTION NEAR SCHOOLS.—The of25 fense, or a continuing criminal enterprise of which
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1 the offense was a part, involved a violation of section

2 405A of this Act which was committed directly by

3 the defendant or for which the defendant would be

4 liable under section 2 of title 18, United States

5 Code.

6 ‘‘(3) USING MINORS IN TRAFFICKING.—The of7 fense, or a continuing criminal enterprise of which

8 the offense was a part, involved a violation of section

9 405B of this Act which was committed directly by

10 the defendant or for which the defendant would be

11 liable under section 2 of title 18, United States

12 Code.

13 ‘‘(4) LETHAL ADULTERANT.—The offense in14 volved the importation, manufacture, or distribution

15 of a controlled substance mixed with a potentially le16 thal adulterant, and the defendant was aware of the

17 presence of the adulterant.’’.

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