II

106TH CONGRESS

2D SESSION S. 2463

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

Federal and State level until a National Commission on the Death

Penalty studies its use and policies ensuring justice, fairness, and due

process are implemented.

IN THE SENATE OF THE UNITED STATES

APRIL 26, 2000

Mr. FEINGOLD (for himself and Mr. LEVIN) 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 and State level until a National

Commission on the 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 ‘‘National Death Pen5 alty Moratorium Act of 2000’’.
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1 TITLE I—MORATORIUM ON THE

2 DEATH PENALTY

3 SEC. 101. FINDINGS.

4 Congress makes the following findings:

5 (1) Death sentences are disproportionately vis6 ited on the poor:

7 (A) About 90 percent of people facing cap8 ital charges cannot afford their own attorney.

9 (B) No State has met standards developed

10 by the American Bar Association (ABA) for ap11 pointment, performance, and compensation of

12 counsel for indigent prisoners.

13 (2) There is ample evidence that the death pen14 alty is applied disproportionately to members of cer15 tain racial and ethnic groups:

16 (A) Although African-Americans constitute

17 only 13 percent of the American population,

18 since 1976 African-Americans account for 35

19 percent of those executed, 43 percent of those

20 who wait on death row nationwide, and 67 per21 cent of those who wait on death row in the Fed22 eral system. Although only 50 percent of mur23 der victims are white, fully 84 percent of the

24 victims in death penalty cases were white.
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1 (B) A study conducted by the House Judi2 ciary Subcommittee on Civil and Constitutional

3 Rights in 1994 concluded that 89 percent of de4 fendants selected for capital prosecution under

5 the Anti-Drug Abuse Act of 1988 have been ei6 ther African-American or Hispanic American.

7 (C) In 1990, the General Accounting Of8 fice reported ‘‘a pattern of evidence indicating

9 racial disparities in charging, sentencing, and

10 imposition of the death penalty’’.

11 (3) Prisoner appeals have been severely cur12 tailed, increasing the risk of imprisonment and exe13 cution of innocent people:

14 (A) In a series of rulings since 1976, the

15 Supreme Court has restricted the rights of

16 death row prisoners to appeal their convictions

17 and death sentences in Federal courts, even in

18 cases where prisoners present compelling evi19 dence of innocence.

20 (B) In 1996, new legislation limited Fed21 eral court review of death penalty appeals and

22 severely curtailed public funding of legal aid

23 services for death row prisoners.
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1 SEC. 102. FEDERAL AND STATE DEATH PENALTY MORATO2 RIUM.

3 Neither the Federal Government nor any State shall

4 carry out the death penalty until Congress considers the

5 final findings and recommendations of the National Com6 mission on the Death Penalty in the report submitted

7 under section 202(c)(2) and enacts legislation repealing

8 this section and implementing or rejecting the guidelines

9 and procedures recommended by the Commission.

10 TITLE II—NATIONAL COMMIS11 SION ON THE DEATH PEN12 ALTY

13 SEC. 201. ESTABLISHMENT OF COMMISSION.

14 (a) ESTABLISHMENT.—There is established a com15 mission to be known as the National Commission on the

16 Death Penalty (in this title referred to as the ‘‘Commis17 sion’’).

18 (b) MEMBERSHIP.—

19 (1) APPOINTMENT.—Members of the Commis20 sion shall be appointed by the President in consulta21 tion with the Attorney General and the Chairmen

22 and Ranking Members of the Committees on the Ju23 diciary of the House of Representatives and the Sen24 ate.

25 (2) COMPOSITION.—The Commission shall be

26 composed of 15 members, of whom—
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1 (A) 3 members shall be Federal or State

2 prosecutors;

3 (B) 3 members shall be attorneys experi4 enced in capital defense;

5 (C) 2 members shall be current or former

6 Federal or State judges; and

7 (D) 2 members shall be current or former

8 Federal or State law enforcement officials; and

9 (E) 5 members shall be individuals from

10 the public or private sector who have knowledge

11 or expertise, whether by experience or training,

12 in matters to be studied by the Commission,

13 which may include—

14 (i) officers or employees of the Fed15 eral Government or State or local govern16 ments;

17 (ii) members of academia, nonprofit

18 organizations, the religious community, or

19 industry; and

20 (iii) other interested individuals.

21 (3) BALANCED VIEWPOINTS.—In appointing the

22 members of the Commission, the President shall, to

23 the maximum extent practicable, ensure that the

24 membership of the Commission is fairly balanced

25 with respect to the opinions of the members of the
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1 Commission regarding support for or opposition to

2 the use of the death penalty.

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

4 members of the Commission shall be made not later

5 than 30 days after the date of enactment of this

6 Act.

7 (c) PERIOD OF APPOINTMENT; VACANCIES.—Mem8 bers shall be appointed for the life of the Commission. Any

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

10 shall be filled in the same manner as the original appoint11 ment.

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

13 all initial members of the Commission have been ap14 pointed, the Commission shall hold its first meeting.

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

16 call of the Chairperson.

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

18 Commission shall constitute a quorum for conducting

19 business, but a lesser number of members may hold hear20 ings.

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

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

23 the Commission.

24 (h) RULES AND PROCEDURES.—The Commission

25 shall adopt rules and procedures to govern its proceedings.
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1 SEC. 202. DUTIES OF THE COMMISSION.

2 (a) STUDY.—

3 (1) IN GENERAL.—The Commission shall con4 duct a thorough study of all matters relating to the

5 administration of the death penalty to determine

6 whether it comports with constitutional principles

7 and requirements of fairness, justice, equality, and

8 due process.

9 (2) MATTERS STUDIED.—The matters studied

10 by the Commission shall include the following:

11 (A) Racial disparities in capital charging,

12 prosecuting, and sentencing decisions.

13 (B) Disproportionality in capital charging,

14 prosecuting, and sentencing decisions based on

15 geographic location and income status of de16 fendant or any other factor resulting in such

17 disproportionality.

18 (C) Adequacy of representation of capital

19 defendants, including consideration of the ABA

20 ‘‘Guidelines for the Appointment and Perform21 ance of Counsel in Death Penalty Cases’’

22 (adopted February 1989) and Association poli23 cies intended to encourage competency of coun24 sel in capital cases (adopted February 1979,

25 February 1988, February 1990, and August

26 1996).
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1 (D) Whether innocent persons have been

2 sentenced to death and the reasons these

3 wrongful convictions have occurred.

4 (E) Whether the Federal government

5 should seek the death penalty in a State with

6 no death penalty.

7 (F) Whether courts are adequately exer8 cising independent judgment on the merits of

9 constitutional claims in State post-conviction

10 and Federal habeas corpus proceedings.

11 (G) Whether mentally retarded persons

12 and persons who were under the age of 18 at

13 the time of their offenses should be sentenced

14 to death after conviction of death-eligible of15 fenses.

16 (H) Procedures to ensure that persons sen17 tenced to death have access to forensic evidence

18 and modern testing of such evidence, including

19 DNA testing, when such testing could result in

20 new evidence of innocence.

21 (I) Any other law or procedure to ensure

22 that death penalty cases are administered fairly

23 and impartially, in accordance with the Con24 stitution.

25 (b) GUIDELINES AND PROCEDURES.—
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1 (1) IN GENERAL.—Based on the study con2 ducted pursuant to subsection (a), the Commission

3 shall establish guidelines and procedures for the ad4 ministration of the death penalty consistent with

5 paragraph (2).

6 (2) INTENT OF GUIDELINES AND PROCE7 DURES.—The guidelines and procedures required by

8 this subsection shall—

9 (A) ensure that the death penalty cases are

10 administered fairly and impartially, in accord11 ance with due process;

12 (B) minimize the risk that innocent per13 sons may be executed; and

14 (C) ensure that the death penalty is not

15 administered in a racially discriminatory man16 ner.

17 (c) REPORT.—

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

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

20 Commission shall submit to the President, the Attor21 ney General, and the Congress a preliminary report,

22 which shall contain a preliminary statement of find23 ings and conclusions.

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

25 after the date of enactment of this Act, the Commis-
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1 sion shall submit a report to the President, the At2 torney General, and the Congress which shall con3 tain a detailed statement of the findings and conclu4 sions of the Commission, together with its rec5 ommendations for such legislation and administra6 tive actions implementing the guidelines and proce7 dures as it considers appropriate.

8 SEC. 203. POWERS OF THE COMMISSION.

9 (a) INFORMATION FROM FEDERAL AND STATE

10 AGENCIES.—The Commission may secure directly from

11 any Federal or State department or agency such informa12 tion as the Commission considers necessary to carry out

13 the provisions of this title. Upon request of the Chair14 person of the Commission, the head of such department

15 or agency shall furnish such information to the Commis16 sion.

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

18 the United States mails in the same manner and under

19 the same conditions as other departments and agencies of

20 the Federal Government.

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

22 dispose of gifts or donations of services or property.

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

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

25 the purpose of carrying out the provisions of this title—
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1 (1) hold such hearings, sit and act at such

2 times and places, take such testimony, receive such

3 evidence, administer such oaths; and

4 (2) require, by subpoena or otherwise, the at5 tendance and testimony of such witnesses and the

6 production of such books, records, correspondence,

7 memoranda, papers, documents, tapes, and materials

8 as the Commission or such subcommittee or member

9 considers advisable.

10 (e) ISSUANCE AND ENFORCEMENT OF SUB11 POENAS.—

12 (1) ISSUANCE.—Subpoenas issued pursuant to

13 subsection (d) shall bear the signature of the Chair14 person of the Commission and shall be served by any

15 person or class of persons designated by the Chair16 person for that purpose.

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

18 or failure to obey a subpoena issued under sub19 section (d), the district court of the United States

20 for the judicial district in which the subpoenaed per21 son resides, is served, or may be found may issue an

22 order requiring such person to appear at any des23 ignated place to testify or to produce documentary

24 or other evidence. Any failure to obey the order of
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1 the court may be punished by the court as a con2 tempt.

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

4 court of the United States within the jurisdiction in

5 which testimony of a person held in custody is

6 sought by the Commission or within the jurisdiction

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

8 application by the Attorney General, issue a writ of

9 habeas corpus ad testificandum requiring the custo10 dian to produce such person before the Commission,

11 or before a member of the Commission or a member

12 of the staff of the Commission designated by the

13 Commission for such purpose.

14 (f) WITNESS ALLOWANCES AND FEES.—The provi15 sions of section 1821 of title 28, United States Code, shall

16 apply to witnesses requested or subpoenaed to appear at

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

18 allowances for witnesses shall be paid from funds available

19 to pay the expenses of the Commission.

20 SEC. 204. COMMISSION PERSONNEL MATTERS.

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

22 Commission shall serve without compensation for their

23 services to the Commission.

24 (b) TRAVEL EXPENSES.—The members of the Com25 mission shall be allowed travel expenses, including per
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1 diem in lieu of subsistence, at rates authorized for employ2 ees of agencies under subchapter I of chapter 57 of title

3 5, United States Code, while away from their homes or

4 regular places of business in the performance of services

5 for the Commission.

6 (c) STAFF.—

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

8 Commission may, without regard to the civil service

9 laws and regulations, appoint and terminate an exec10 utive director and such other additional personnel as

11 may be necessary to enable the Commission to per12 form its duties. The employment of an executive di13 rector shall be subject to confirmation by the Com14 mission.

15 (2) COMPENSATION.—The Chairperson of the

16 Commission may fix the compensation of the execu17 tive director and other personnel without regard to

18 the provisions of chapter 51 and subchapter III of

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

20 to classification of positions and General Schedule

21 pay rates, except that the rate of pay for the execu22 tive director and other personnel may not exceed the

23 rate payable for level V of the Executive Schedule

24 under section 5316 of such title.
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1 (d) DETAIL OF GOVERNMENT EMPLOYEES.—Any

2 Federal Government employee may be detailed to the

3 Commission without reimbursement, and such detail shall

4 be without interruption or loss of civil service status or

5 privilege.

6 (e) PROCUREMENT OF TEMPORARY AND INTERMIT7 TENT SERVICES.—The Chairperson of the Commission

8 may procure temporary and intermittent services under

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

10 for individuals which do not exceed the daily equivalent

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

12 the Executive Schedule under section 5316 of such title.

13 SEC. 205. TERMINATION OF THE COMMISSION.

14 The Commission shall terminate 90 days after the

15 date on which the Commission submits its report under

16 section 202.

17 SEC. 206. FUNDING.

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

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

20 out this title.

21 (b) AVAILABILITY.—Sums appropriated to the De22 partment of Justice shall be made available to carry out

23 this title.

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