I 

109TH CONGRESS 

2D SESSION H. R. 5040 

To modify the law with respect to the death penalty, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 29, 2006 

Mr. GOHMERT introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To modify the law with respect to the death penalty, and 

for other purposes. 

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 Reform 

5 Act of 2006’’. 

6 SEC. 2. AMENDMENTS RELATING TO TITLE 28. 

7 Chapter 153 of title 28, United States Code, is 

8 amended— 

9 (1) in section 2254(h) by striking ‘‘section 408 

10 of the Controlled Substances Act’’ and inserting 

11 ‘‘section 3599 of title 18’’; and 


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1 (2) in section 2255 by striking ‘‘section 408 of 

2 the Controlled Substances Act’’ and inserting ‘‘sec3 tion 3599 of title 18’’. 

4 SEC. 3. AMENDMENTS RELATING TO SECTION 3592 OF 

5 TITLE 18. 

6 Section 3592 of title 18, United States Code, is 

7 amended— 

8 (1) in subsection (a), by inserting ‘‘for which 

9 notice has been provided’’ after ‘‘factor’’; 

10 (2) in subsection (c)(1)— 

11 (A) by inserting ‘‘section 241 (conspiracy 

12 against rights), section 245 (federally protected 

13 activities), section 247 (interference with reli14 gious exercise)’’ after ‘‘section 37 (violence at 

15 international airports),’’; and 

16 (B) by inserting ‘‘section 1512 (tampering 

17 with a witness, victim, or an informant), section 

18 1513 (retaliating against a witness, victim, or 

19 an informant),’’ after ‘‘section 1203 (hostage 

20 taking),’’; 

21 (3) in subsection (c)(2)— 

22 (A) by striking ‘‘For any offense, other 

23 than an offense for which a sentence of death 

24 is sought on the basis of section 924(c), the’’ 

25 and inserting ‘‘The’’; and 


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1 (B) by striking ‘‘previously’’ and inserting 

2 ‘‘, in a prior adjudication,’’; 

3 (4) in subsection (c)(8)— 

4 (A) by striking ‘‘or’’; and 

5 (B) by inserting ‘‘or in order to retain ille6 gal possession’’ before ‘‘of anything’’; 

7 (5) in subsection (c)(12), by striking ‘‘had pre8 viously’’ each place that term appears and inserting 

9 ‘‘has previously’’; and 

10 (6) in subsection (c), by inserting after para11 graph (16) the following: 

12 ‘‘(17) OBSTRUCTION OF JUSTICE.—The defend13 ant engaged in any conduct resulting in the death of 

14 another person in order to obstruct the investigation 

15 or prosecution of any offense.’’. 

16 SEC. 4. AMENDMENTS RELATING TO SECTION 3593 OF 

17 TITLE 18. 

18 Section 3593 of title 18, United States Code, is 

19 amended— 

20 (1) in subsection (a)— 

21 (A) by striking ‘‘, a reasonable time before 

22 the trial or before acceptance by the court of a 

23 plea of guilty,’’; 

24 (B) by inserting after paragraph (2) the 

25 following: 


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1 ‘‘The notice must be filed a reasonable time before trial 

2 or before acceptance by the court of a plea of guilty. The 

3 court shall, where necessary to ensure adequate prepara4 tion time for the defense, grant a reasonable continuance 

5 of the trial. If the government has not filed a notice of 

6 intent to seek the death penalty or informed the court that 

7 a notice of intent to seek the death penalty will not be 

8 filed, the court shall not accept a plea of guilty to an of9 fense described in section 3591 without the concurrence 

10 of the government.’’; and 

11 (C) by inserting before the last sentence 

12 the following: ‘‘The government may also pro13 vide notice under this subsection of any factor 

14 concerning the state of mind, intent or other 

15 culpability of the defendant in committing the 

16 offense.’’; 

17 (2) in subsection (b), by inserting at the end of 

18 paragraph (3) the following: 

19 ‘‘The court shall not dismiss alternate jurors impaneled 

20 during the guilt phase unless for good cause as to indi21 vidual alternates or upon a finding, under this subsection, 

22 that the sentencing hearing will be heard by the court 

23 alone. The court shall retain such alternate jurors to hear 

24 the sentencing trial until the completion of the hearing. 

25 If at any time, whether before or after the final submission 


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1 of the sentencing case to the jury, a sitting juror dies or 

2 becomes ill, or upon other good cause shown to the court 

3 is found to be unable to perform his or her duty in a timely 

4 manner, or if a juror requests a discharge and good cause 

5 appears therefor, the court shall order the juror to be dis6 charged and draw the name of an alternate, who shall then 

7 take a place in the jury box, and be subject to the same 

8 rules and regulations as though the alternate juror had 

9 been selected as one of the original jurors. If deliberations 

10 have begun when the substitution is made, the court shall 

11 instruct the newly constituted jury to recommence delib12 erations as if none had previously taken place. The panel, 

13 in all other respects, shall be considered unaltered by the 

14 substitution of a duly seated alternate.’’; 

15 (3) in subsection (c) — 

16 (A) in the fourth sentence, by inserting 

17 ‘‘for which notice has been provided under sub18 section (b)’’ before the period; 

19 (B) in the fifth sentence, by inserting ‘‘, 

20 including information pertaining to 

21 unadjudicated conduct’’ before the period; 

22 (C) by inserting after the eighth sentence 

23 the following: ‘‘The government shall be per24 mitted to cross-examine the defendant regardVerDate Aug 31 2005 01:48 Mar 30, 2006 Jkt 049196 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5040.IH H5040

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1 ing any statements or testimony by the defend2 ant to the sentencing jury.’’; 

3 (D) by inserting after the fourth sentence 

4 the following: ‘‘If the defendant has raised the 

5 issue of mental retardation as required under 

6 subsection (b), the defendant may introduce in7 formation relevant to mental retardation.’’; and 

8 (E) by inserting at the end the following: 

9 ‘‘The defendant shall have the burden of prov10 ing mental retardation by the preponderance of 

11 the information.’’; 

12 (4) in subsection (d)— 

13 (A) in the second sentence by inserting 

14 ‘‘determine the truth of the allegations in the 

15 notice filed under subsection (a) of this section 

16 regarding any mental state set forth in section 

17 3591(a), and’’ after ‘‘It shall’’; 

18 (B) by inserting after the second sentence 

19 the following: ‘‘In any case in which the defend20 ant has raised the issue of mental retardation 

21 as required under subsection (b), the jury, or if 

22 there is no jury, the court, shall determine the 

23 issue of mental retardation only if any aggra24 vating factor set forth in section 3592 is found 

25 to exist. Such determination shall occur prior to 


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1 the consideration of any mitigating factor.’’; 

2 and 

3 (C) by inserting at the end the following: 

4 ‘‘If the jury, or if there is no jury, the court, 

5 determines that the defendant is mentally re6 tarded, the court shall sentence the defendant 

7 to life imprisonment without the possibility of 

8 release, or some other lesser sentence author9 ized by law.’’; 

10 (5) in subsection (e)— 

11 (A) by inserting before the last sentence 

12 the following: ‘‘In assessing the appropriateness 

13 of a sentence of death, the jury, or if there is 

14 no jury, the court must base the decision on the 

15 facts of the offense and the aggravating and 

16 mitigating factors and avoid any influence of 

17 sympathy, sentiment, passion, prejudice, or 

18 other arbitrary factor when imposing sen19 tence.’’; and 

20 (B) by striking ‘‘, to life imprisonment’’ 

21 and all that follows through ‘‘lesser sentence’’ 

22 and inserting ‘‘or to life imprisonment without 

23 possibility of release’’. 

24 (6) by redesignating subsections (b) through (f) 

25 as subsections (c) through (g); and 


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1 (7) by adding after subsection (a) the following: 

2 ‘‘(b) NOTICE BY THE DEFENDANT.— 

3 ‘‘(1) If, as required under subsection (a), the 

4 government has filed notice seeking a sentence of 

5 death, the defendant shall, a reasonable time before 

6 the trial, sign and file with the court, and serve on 

7 the attorney for the government, notice setting forth 

8 the mitigating factor or factors that the defendant 

9 proposes to prove mitigate against imposition of a 

10 sentence of death. In any case in which the defend11 ant intends to raise the issue of mental retardation 

12 as precluding a sentence of death, the defendant 

13 shall, a reasonable time before trial, sign and file 

14 with the court, and serve on the attorney for the 

15 government, notice of such intent. 

16 ‘‘(2) When a defendant makes a claim of men17 tal retardation or intends to rely on evidence of men18 tal impairment, or other mental defect or disease as 

19 a mitigating factor under this section, the govern20 ment shall have the right to an independent mental 

21 health examination of the defendant. A mental 

22 health examination ordered under this subsection 

23 shall be conducted by a licensed or certified psychia24 trist, psychologist, neurologist, 

25 psychopharmacologist, or other allied mental health 


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1 professional. If the court finds it appropriate, more 

2 than one such professional shall perform the exam3 ination. To facilitate the examination, the court may 

4 commit the person to be examined for a reasonable 

5 period, but not to exceed 30 days, to the custody of 

6 the Attorney General for placement in a suitable fa7 cility. Unless impracticable, the psychiatric or psy8 chological examination shall be conducted in a suit9 able facility reasonably close to the court. The direc10 tor of the facility may apply for a reasonable exten11 sion, but not to exceed 15 days upon a showing of 

12 good cause that the additional time is necessary to 

13 observe and evaluate the defendant. 

14 ‘‘(3) Following the filing of a defendant’s notice 

15 under this subsection, the court shall, where nec16 essary to ensure adequate preparation time for the 

17 government, grant a reasonable continuance of the 

18 trial. 

19 ‘‘(4) For purposes of this section, a defendant 

20 is mentally retarded if, since some point in time 

21 prior to age 18, he or she has continuously had an 

22 intelligence quotient of 70 or lower and, as a result 

23 of that significantly subaverage mental functioning, 

24 has since that point in time continuously had a di25 minished capacity to understand and process inforVerDate Aug 31 2005 01:48 Mar 30, 2006 Jkt 049196 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5040.IH H5040

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1 mation, abstract from mistakes and learn from expe2 rience, engage in logical reasoning, control impulses, 

3 and understand others’ reactions.’’. 

4 SEC. 5. AMENDMENTS RELATING TO SECTION 3594 OF 

5 TITLE 18. 

6 Section 3594 of title 18, United States Code, is 

7 amended— 

8 (1) in the first sentence— 

9 (A) by striking ‘‘3593(e)’’ and inserting 

10 ‘‘3593(f)’’; and 

11 (B) by striking ‘‘or life imprisonment with12 out possibility of release’’; 

13 (2) in the second sentence— 

14 (A) by striking ‘‘any lesser sentence that is 

15 authorized by law’’ and inserting ‘‘life imprison16 ment without the possibility of release’’; and 

17 (B) by inserting ‘‘as limited by section 

18 3593(f)’’ before the period. 

19 SEC. 6. AMENDMENTS RELATING TO SECTIONS 3595, 3596, 

20 AND 3597 OF TITLE 18. 

21 (a) SECTION 3596.—Section 3596 of title 18, United 

22 States Code, is amended— 

23 (1) in subsection (a), by striking ‘‘When the 

24 sentence is to be implemented’’ and all that follows 

25 through ‘‘such law’’ and inserting the following: ‘‘A 


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1 sentence of death for any offense against the United 

2 States shall be implemented pursuant to regulations 

3 promulgated by the Attorney General’’; and 

4 (2) in subsection (c)— 

5 (A) by striking the first sentence; and 

6 (B) by adding at the end the following: 

7 ‘‘The government shall not be limited in its op8 portunities to seek rehearing, based on changed 

9 circumstances, of a finding of mental incapacity 

10 under this subsection.’’. 

11 (b) SECTION 3595.—Section 3595 of title 18, United 

12 States Code, is amended by striking ‘‘3593(d)’’ and insert13 ing ‘‘3593(e)’’. 

14 (c) SECTION 3597.—Section 3597 of title 18, United 

15 States Code, is amended— 

16 (1) in the heading, by striking ‘‘State’’; 

17 (2) in subsection (a), by striking ‘‘A United 

18 States marshal’’ and all that follows through ‘‘Attor19 ney General’’ and inserting the following: ‘‘An offi20 cial charged with supervising the implementation of 

21 a sentence of death shall use appropriate Federal or 

22 State facilities for such purpose’’; and 

23 (3) by adding at the end the following new sub24 section: 


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1 ‘‘(c) CONFIDENTIALITY.—Notwithstanding any other 

2 law, the identity of any employee of the United States De3 partment of Justice, the Federal Bureau of Prisons, the 

4 United States Marshals Service, or any State department 

5 of corrections, or of any person providing services relating 

6 to an execution under contract or victim or victim’s sur7 vivor, who participates in or witnesses the administration 

8 of an execution pursuant to this section shall not be pub9 licly disclosed, absent the consent of any such individual.’’. 

10 (d) CONFORMING AMENDMENT.—The table of sec11 tions at the beginning of chapter 228 of title 18, United 

12 States Code, is amended by striking the item relating to 

13 section 3597 and inserting the following: 

‘‘3597. Use of facilities.’’. 

14 SEC. 7. AMENDMENT RELATING TO SECTION 3005 OF TITLE 

15 18. 

16 (a) IN GENERAL.—Section 3005 of title 18, United 

17 States Code, is amended to read as follows: 

18 ‘‘§ 3005. Counsel and voir dire in capital cases 

19 ‘‘(a) In any case in which the Government files a no20 tice of intent to seek a sentence of death, the court shall 

21 promptly, upon the defendant’s request, assign a second 

22 counsel for the defendant in addition to any previously as23 signed counsel. At least one assigned counsel shall be 

24 learned in the law applicable to capital cases. Both counsel 

25 shall have free access to the accused at all reasonable 


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1 hours. In assigning counsel under this section, the court 

2 shall consider the recommendation of the Federal Public 

3 Defender organization, or, if no such organization exists 

4 in the district, of the Administrative Office of the United 

5 States Courts. 

6 ‘‘(b) In any case in which the government files a no7 tice of intent to seek the death penalty, the court shall, 

8 at the outset of any trial, permit voir dire of the venire 

9 concerning personal scruples with regard to the death pen10 alty. The trial court shall allow strikes for cause as to any 

11 member of the venire whose personal views would prevent 

12 or substantially impair the performance of a juror’s sworn 

13 duties under the court’s instructions in a death penalty 

14 case.’’. 

15 (b) CONFORMING AMENDMENT.—The table of sec16 tions at the beginning of chapter 201 of title 18, United 

17 States Code is amended by striking the item relating to 

18 section 3005 and inserting the following: 

‘‘3005. Counsel and voir dire in capital cases.’’. 

19 SEC. 8. ADDITIONAL PROCEDURAL MODIFICATIONS. 

20 (a) MODIFICATION OF MITIGATING FACTORS.—Sec21 tion 3592(a)(4) of title 18, United States Code, is amend22 ed— 

23 (1) by striking ‘‘Another’’ and inserting ‘‘The 

24 Government could have, but has not, sought the 

25 death penalty against another’’; and 


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1 (2) by striking ‘‘, will not be punished by 

2 death’’. 

3 (b) MODIFICATION OF AGGRAVATING FACTORS FOR

4 OFFENSES RESULTING IN DEATH.—Section 3592(c) of 

5 title 18, United States Code, is amended in paragraph (1), 

6 by inserting ‘‘section 2339D (terrorist offenses resulting 

7 in death),’’ after ‘‘destruction),’’. 

8 (c) JURIES OF LESS THAN 12 MEMBERS.—Sub9 section (c), as redesignated by section 4(6) of this Act, 

10 of section 3593 of title 18, United States Code, is amend11 ed by striking ‘‘unless’’ and all that follows through the 

12 end of the subsection and inserting ‘‘unless the court finds 

13 good cause, or the parties stipulate, with the approval of 

14 the court, a lesser number.’’. 

15 (d) PEREMPTORY CHALLENGES.—Rule 24(c) of the 

16 Federal Rules of Criminal Procedure is amended— 

17 (1) in paragraph (1), by striking ‘‘6’’ and in18 serting ‘‘9’’; and 

19 (2) in paragraph (4), by adding at the end the 

20 following: 

21 ‘‘(D) SEVEN, EIGHT OR NINE ALTER22 NATES.—Four additional peremptory challenges 

23 are permitted when seven, eight, or nine alter24 nates are impaneled.’’. 

Æ 


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