104TH CONGRESS

1ST SESSION H. R. 729

AN ACT

To control crime by a more effective death penalty.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Effective Death Penalty Act of 1995’’.

6 (b) TABLE OF CONTENTS.—The table of contents is

7 as follows:
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Sec. 1. Short title; table of contents.

TITLE I—HABEAS CORPUS REFORM

SUBTITLE A—POST CONVICTION PETITIONS: GENERAL HABEAS CORPUS

REFORM

Sec. 101. Period of limitation for filing writ of habeas corpus following final

judgment of a State court.

Sec. 102. Authority of appellate judges to issue certificates of probable cause

for appeal in habeas corpus and Federal collateral relief proceedings.

Sec. 103. Conforming amendment to the rules of appellate procedure.

Sec. 104. Effect of prior State consideration.

Sec. 105. Period of limitation for Federal prisoners filing for collateral remedy.

SUBTITLE B—SPECIAL PROCEDURES FOR COLLATERAL PROCEEDINGS IN

CAPITAL CASES

Sec. 111. Death penalty litigation procedures.

SUBTITLE C—FUNDING FOR LITIGATION OF FEDERAL HABEAS CORPUS

PETITIONS IN CAPITAL CASES

Sec. 121. Funding for death penalty prosecutions.

TITLE II—FEDERAL DEATH PENALTY PROCEDURES REFORM

Sec. 201. Federal death penalty procedures reform.

1 TITLE I—HABEAS CORPUS

2 REFORM

3 Subtitle A—Post Conviction Peti4 tions: General Habeas Corpus

5 Reform

6 SEC. 101. PERIOD OF LIMITATION FOR FILING WRIT OF HA7 BEAS CORPUS FOLLOWING FINAL JUDGMENT

8 OF A STATE COURT.

9 Section 2244 of title 28, United States Code, is

10 amended by adding at the end the following:

11 ‘‘(d)(1) A one-year period of limitation shall apply to

12 an application for a writ of habeas corpus by a person

13 in custody pursuant to the judgment of a State court. The
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1 limitation period shall run from the latest of the following

2 times:

3 ‘‘(A) The time at which the judgment became

4 final by the conclusion of direct review or the expira5 tion of the time for seeking such review.

6 ‘‘(B) The time at which the impediment to fil7 ing an application created by State action in viola8 tion of the Constitution or laws of the United States

9 is removed, where the applicant was prevented from

10 filing by such State action.

11 ‘‘(C) The time at which the Federal right as12 serted was initially recognized by the Supreme

13 Court, where the right has been newly recognized by

14 the Court and is retroactively applicable.

15 ‘‘(D) The time at which the factual predicate of

16 the claim or claims presented could have been dis17 covered through the exercise of reasonable diligence.

18 ‘‘(2) Time that passes during the pendency of a prop19 erly filed application for State review with respect to the

20 pertinent judgment or claim shall not be counted toward

21 any period of limitation under this subsection.’’.
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1 SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE

2 CERTIFICATES OF PROBABLE CAUSE FOR AP3 PEAL IN HABEAS CORPUS AND FEDERAL COL4 LATERAL RELIEF PROCEEDINGS.

5 Section 2253 of title 28, United States Code, is

6 amended to read as follows:

7 ‘‘§ 2253. Appeal

8 ‘‘(a) In a habeas corpus proceeding or a proceeding

9 under section 2255 of this title before a circuit or district

10 judge, the final order shall be subject to review, on appeal,

11 by the court of appeals for the circuit where the proceed12 ing is had.

13 ‘‘(b) There shall be no right of appeal from such an

14 order in a proceeding to test the validity of a warrant to

15 remove, to another district or place for commitment or

16 trial, a person charged with a criminal offense against the

17 United States, or to test the validity of his detention pend18 ing removal proceedings.

19 ‘‘(c) An appeal may not be taken to the court of ap20 peals from the final order in a habeas corpus proceeding

21 where the detention complained of arises out of process

22 issued by a State court, or from the final order in a pro23 ceeding under section 2255 of this title, unless a circuit

24 justice or judge issues a certificate of probable cause. A

25 certificate of probable cause may only issue if the peti26 tioner has made a substantial showing of the denial of a
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1 Federal right. The certificate of probable cause must indi2 cate which specific issue or issues satisfy this standard.’’.

3 SEC. 103. CONFORMING AMENDMENT TO THE RULES OF AP4 PELLATE PROCEDURE.

5 Federal Rule of Appellate Procedure 22 is amended

6 to read as follows:

7 ‘‘RULE 22

8 ‘‘HABEAS CORPUS AND SECTION 2255 PROCEEDINGS

9 ‘‘(a) APPLICATION FOR AN ORIGINAL WRIT OF HA10 BEAS CORPUS.—An application for a writ of habeas cor11 pus shall be made to the appropriate district court. If ap12 plication is made to a circuit judge, the application will

13 ordinarily be transferred to the appropriate district court.

14 If an application is made to or transferred to the district

15 court and denied, renewal of the application before a cir16 cuit judge is not favored; the proper remedy is by appeal

17 to the court of appeals from the order of the district court

18 denying the writ.

19 ‘‘(b) NECESSITY OF CERTIFICATE OF PROBABLE

20 CAUSE FOR APPEAL.—In a habeas corpus proceeding in

21 which the detention complained of arises out of process

22 issued by a State court, and in a motion proceeding pursu23 ant to section 2255 of title 28, United States Code, an

24 appeal by the applicant or movant may not proceed unless

25 a circuit judge issues a certificate of probable cause. If
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1 a request for a certificate of probable cause is addressed

2 to the court of appeals, it shall be deemed addressed to

3 the judges thereof and shall be considered by a circuit

4 judge or judges as the court deems appropriate. If no ex5 press request for a certificate is filed, the notice of appeal

6 shall be deemed to constitute a request addressed to the

7 judges of the court of appeals. If an appeal is taken by

8 a State or the Government or its representative, a certifi9 cate of probable cause is not required.’’.

10 SEC. 104. EFFECT OF PRIOR STATE CONSIDERATION.

11 (a) EXHAUSTION OF REMEDIES.—Section 2254(b) of

12 title 28, United States Code, is amended to read as fol13 lows:

14 ‘‘(b) An application for a writ of habeas corpus in

15 behalf of a person in custody pursuant to the judgment

16 of a State court shall not be granted unless it appears

17 that the applicant has exhausted the remedies available

18 in the courts of the State, or that there is either an ab19 sence of available State corrective process or the existence

20 of circumstances rendering such process ineffective to pro21 tect the rights of the applicant. An application may be

22 denied on the merits notwithstanding the failure of the

23 applicant to exhaust the remedies available in the courts

24 of the State. A State shall not be deemed to have waived

25 the exhaustion requirement or be estopped from reliance
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1 upon the requirement unless through its counsel it waives

2 the requirement expressly.’’.

3 (b) STANDARD OF DEFERENCE TO STATE JUDICIAL

4 DECISIONS.—Section 2254 of title 28, United States

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

6 ‘‘(g) An application for a writ of habeas corpus on

7 behalf of a person in custody pursuant to the judgment

8 of a State court shall not be granted with respect to any

9 claim that was decided on the merits in State proceedings

10 unless the adjudication of the claim—

11 ‘‘(1) resulted in a decision that was based on an

12 arbitrary or unreasonable interepretation of clearly

13 established Federal law as articulated in the deci14 sions of the Supreme Court of the United States;

15 ‘‘(2) resulted in a decision that was based on an

16 arbitrary or unreasonable application to the facts of

17 clearly established Federal law as articulated in the

18 decisions of the Supreme Court of the United States;

19 or

20 ‘‘(3) resulted in a decision that was based on an

21 arbitrary or unreasonable determination of the facts

22 in light of the evidence presented in the State pro23 ceeding.’’.
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1 SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRIS2 ONERS FILING FOR COLLATERAL REMEDY.

3 Section 2255 of title 28, United States Code, is

4 amended by striking the second paragraph and the penul5 timate paragraph thereof, and by adding at the end the

6 following new paragraphs:

7 ‘‘A two-year period of limitation shall apply to a mo8 tion under this section. The limitation period shall run

9 from the latest of the following times:

10 ‘‘(1) The time at which the judgment of convic11 tion becomes final.

12 ‘‘(2) The time at which the impediment to mak13 ing a motion created by governmental action in vio14 lation of the Constitution or laws of the United

15 States is removed, where the movant was prevented

16 from making a motion by such governmental action.

17 ‘‘(3) The time at which the right asserted was

18 initially recognized by the Supreme Court, where the

19 right has been newly recognized by the Court and is

20 retroactively applicable.

21 ‘‘(4) The time at which the factual predicate of

22 the claim or claims presented could have been dis23 covered through the exercise of reasonable dili24 gence.’’.
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1 Subtitle B—Special Procedures for

2 Collateral Proceedings in Cap3 ital Cases

4 SEC. 111. DEATH PENALTY LITIGATION PROCEDURES.

5 (a) IN GENERAL.—Title 28, United States Code, is

6 amended by inserting the following new chapter after

7 chapter 153:

8 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

9 PROCEDURES IN CAPITAL CASES

‘‘Sec.

‘‘2256. Prisoners in State custody subject to capital sentence; appointment of

counsel; requirement of rule of court or statute; procedures for

appointment.

‘‘2257. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.

‘‘2258. Filing of habeas corpus petition; time requirements; tolling rules.

‘‘2259. Scope of Federal review; district court adjudications.

‘‘2260. Certificate of probable cause.

‘‘2261. Application to State unitary review procedure.

‘‘2262. Limitation periods for determining petitions.

‘‘2263. Rule of construction.

10 ‘‘§ 2256. Prisoners in State custody subject to capital

11 sentence; appointment of counsel; re12 quirement of rule of court or statute; pro13 cedures for appointment

14 ‘‘(a) This chapter shall apply to cases arising under

15 section 2254 brought by prisoners in State custody who

16 are subject to a capital sentence. It shall apply only if the

17 provisions of subsections (b) and (c) are satisfied.

18 ‘‘(b) This chapter is applicable if a State establishes

19 by rule of its court of last resort or by statute a mecha-
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1 nism for the appointment, compensation and payment of

2 reasonable litigation expenses of competent counsel in

3 State postconviction proceedings brought by indigent pris4 oners whose capital convictions and sentences have been

5 upheld on direct appeal to the court of last resort in the

6 State or have otherwise become final for State law pur7 poses. The rule of court or statute must provide standards

8 of competency for the appointment of such counsel.

9 ‘‘(c) Any mechanism for the appointment, compensa10 tion and reimbursement of counsel as provided in sub11 section (b) must offer counsel to all State prisoners under

12 capital sentence and must provide for the entry of an

13 order by a court of record: (1) appointing one or more

14 counsel to represent the prisoner upon a finding that the

15 prisoner is indigent and accepted the offer or is unable

16 competently to decide whether to accept or reject the offer;

17 (2) finding, after a hearing if necessary, that the prisoner

18 rejected the offer of counsel and made the decision with

19 an understanding of its legal consequences; or (3) denying

20 the appointment of counsel upon a finding that the pris21 oner is not indigent.

22 ‘‘(d) No counsel appointed pursuant to subsections

23 (b) and (c) to represent a State prisoner under capital

24 sentence shall have previously represented the prisoner at

25 trial or on direct appeal in the case for which the appoint-
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1 ment is made unless the prisoner and counsel expressly

2 request continued representation.

3 ‘‘(e) The ineffectiveness or incompetence of counsel

4 during State or Federal collateral postconviction proceed5 ings in a capital case shall not be a ground for relief in

6 a proceeding arising under section 2254 of this chapter.

7 This limitation shall not preclude the appointment of dif8 ferent counsel, on the court’s own motion or at the request

9 of the prisoner, at any phase of State or Federal

10 postconviction proceedings on the basis of the ineffective11 ness or incompetence of counsel in such proceedings.

12 ‘‘§ 2257. Mandatory stay of execution; duration; limits

13 on stays of execution; successive peti14 tions

15 ‘‘(a) Upon the entry in the appropriate State court

16 of record of an order under section 2256(c), a warrant

17 or order setting an execution date for a State prisoner

18 shall be stayed upon application to any court that would

19 have jurisdiction over any proceedings filed under section

20 2254. The application must recite that the State has in21 voked the postconviction review procedures of this chapter

22 and that the scheduled execution is subject to stay.

23 ‘‘(b) A stay of execution granted pursuant to sub24 section (a) shall expire if—
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1 ‘‘(1) a State prisoner fails to file a habeas cor2 pus petition under section 2254 within the time re3 quired in section 2258;

4 ‘‘(2) before a court of competent jurisdiction, in

5 the presence of counsel and after having been ad6 vised of the consequences of his decision, a State

7 prisoner under capital sentence waives the right to

8 pursue habeas corpus review under section 2254; or

9 ‘‘(3) a State prisoner files a habeas corpus peti10 tion under section 2254 within the time required in

11 section 2258 and fails to make a substantial showing

12 of the denial of a Federal right or is denied relief

13 in the district court or at any subsequent stage of

14 review.

15 ‘‘(c) On a second or later habeas corpus petition

16 under section 2254, no Federal court shall have the au17 thority to enter a stay of execution or grant relief in a

18 capital case unless—

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

20 is a claim not previously presented in the State or

21 Federal courts;

22 ‘‘(2) the failure to raise the claim is (A) the re23 sult of State action in violation of the Constitution

24 or laws of the United States; (B) the result of the

25 Supreme Court recognition of a new Federal right
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1 that is retroactively applicable; or (C) based on a

2 factual predicate that could not have been discovered

3 through the exercise of reasonable diligence in time

4 to present the claim for State or Federal

5 postconviction review; and

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

7 sufficient to establish by clear and convincing evi8 dence that but for constitutional error, no reasonable

9 fact finder would have found the petitioner guilty of

10 the underlying offense.

11 ‘‘(d) Notwithstanding any other provision of law, no

12 Federal district court or appellate judge shall have the au13 thority to enter a stay of execution, issue injunctive relief,

14 or grant any equitable or other relief in a capital case on

15 any successive habeas petition unless the court first deter16 mines the petition or other action does not constitute an

17 abuse of the writ. This determination shall be made only

18 by the district judge or appellate panel who adjudicated

19 the merits of the original habeas petition (or to the district

20 judge or appellate panel to which the case may have been

21 subsequently assigned as a result of the unavailability of

22 the original court or judges). In the Federal courts of ap23 peal, a stay may issue pursuant to the terms of this provi24 sion only when a majority of the original panel or majority
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1 of the active judges determines the petition does not con2 stitute an abuse of the writ.

3 ‘‘§ 2258. Filing of habeas corpus petition; time re4 quirements; tolling rules

5 ‘‘Any petition for habeas corpus relief under section

6 2254 must be filed in the appropriate district court within

7 one hundred and eighty days from the filing in the appro8 priate State court of record of an order under section

9 2256(c). The time requirements established by this section

10 shall be tolled—

11 ‘‘(1) from the date that a petition for certiorari

12 is filed in the Supreme Court until the date of final

13 disposition of the petition if a State prisoner files

14 the petition to secure review by the Supreme Court

15 of the affirmance of a capital sentence on direct re16 view by the court of last resort of the State or other

17 final State court decision on direct review;

18 ‘‘(2) during any period in which a State pris19 oner under capital sentence has a properly filed re20 quest for postconviction review pending before a

21 State court of competent jurisdiction; if all State fil22 ing rules are met in a timely manner, this period

23 shall run continuously from the date that the State

24 prisoner initially files for postconviction review until

25 final disposition of the case by the highest court of
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1 the State, but the time requirements established by

2 this section are not tolled during the pendency of a

3 petition for certiorari before the Supreme Court ex4 cept as provided in paragraph (1); and

5 ‘‘(3) during an additional period not to exceed

6 sixty days, if (A) a motion for an extension of time

7 is filed in the Federal district court that would have

8 proper jurisdiction over the case upon the filing of

9 a habeas corpus petition under section 2254; and

10 (B) a showing of good cause is made for the failure

11 to file the habeas corpus petition within the time pe12 riod established by this section.

13 ‘‘§ 2259. Scope of Federal review; district court adju14 dications

15 ‘‘(a) Whenever a State prisoner under capital sen16 tence files a petition for habeas corpus relief to which this

17 chapter applies, the district court shall only consider a

18 claim or claims that have been raised and decided on the

19 merits in the State courts, unless the failure to raise the

20 claim properly is—

21 ‘‘(1) the result of State action in violation of

22 the Constitution or laws of the United States;

23 ‘‘(2) the result of the Supreme Court recogni24 tion of a new Federal right that is retroactively ap25 plicable; or
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1 ‘‘(3) based on a factual predicate that could not

2 have been discovered through the exercise of reason3 able diligence in time to present the claim for State

4 or Federal postconviction review.

5 ‘‘(b) Following review subject to the constraints set

6 forth in subsection (a) and subsections (d) and (g) of sec7 tion 2254 of this title, the court shall rule on the claims

8 properly before it.

9 ‘‘§ 2260. Certificate of probable cause

10 ‘‘An appeal may not be taken to the court of appeals

11 from the final order of a district court denying relief in

12 a habeas corpus proceeding that is subject to the provi13 sions of this chapter unless a circuit justice or judge issues

14 a certificate of probable cause. A certificate of probable

15 cause may only be issued if the petitioner has made a sub16 stantial showing of the denial of a Federal right. The cer17 tificate of probable cause must indicate which specific

18 issue or issues satisfy this standard.

19 ‘‘§ 2261. Application to State unitary review proce20 dure

21 ‘‘(a) For purposes of this section, a ‘unitary review’

22 procedure means a State procedure that authorizes a per23 son under sentence of death to raise, in the course of di24 rect review of the judgment, such claims as could be raised

25 on collateral attack. The provisions of this chapter shall
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1 apply, as provided in this section, in relation to a State

2 unitary review procedure if the State establishes by rule

3 of its court of last resort or by statute a mechanism for

4 the appointment, compensation and payment of reasonable

5 litigation expenses of competent counsel in the unitary re6 view proceedings, including expenses relating to the litiga7 tion of collateral claims in the proceedings. The rule of

8 court or statute must provide standards of competency for

9 the appointment of such counsel.

10 ‘‘(b) A unitary review procedure, to qualify under this

11 section, must include an offer of counsel following trial

12 for the purpose of representation on unitary review, and

13 entry of an order, as provided in section 2256(c), concern14 ing appointment of counsel or waiver or denial of appoint15 ment of counsel for that purpose. No counsel appointed

16 to represent the prisoner in the unitary review proceedings

17 shall have previously represented the prisoner at trial in

18 the case for which the appointment is made unless the

19 prisoner and counsel expressly request continued represen20 tation.

21 ‘‘(c) Sections 2257, 2258, 2259, 2260, and 2262

22 shall apply in relation to cases involving a sentence of

23 death from any State having a unitary review procedure

24 that qualifies under this section. References to State ‘post25 conviction review’ and ‘direct review’ in those sections
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1 shall be understood as referring to unitary review under

2 the State procedure. The references in sections 2257(a)

3 and 2258 to ‘an order under section 2256(c)’ shall be un4 derstood as referring to the post-trial order under sub5 section (b) concerning representation in the unitary review

6 proceedings, but if a transcript of the trial proceedings

7 is unavailable at the time of the filing of such an order

8 in the appropriate State court, then the start of the one

9 hundred and eighty day limitation period under section

10 2258 shall be deferred until a transcript is made available

11 to the prisoner or his counsel.

12 ‘‘§ 2262. Limitation periods for determining petitions

13 ‘‘(a)(1) A Federal district court shall determine such

14 a petition or motion within 60 days of any argument heard

15 on an evidentiary hearing, or where no evidentiary hearing

16 is held, within 60 days of any final argument heard in

17 the case.

18 ‘‘(2)(A) The court of appeals shall determine any ap19 peal relating to such a petition or motion within 90 days

20 after the filing of any reply brief or within 90 days after

21 such reply brief would be due. For purposes of this provi22 sion, any reply brief shall be due within 14 days of the

23 opposition brief.

24 ‘‘(B) The court of appeals shall decide any petition

25 for rehearing and or request by an appropriate judge for
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1 rehearing en banc within 20 days of the filing of such a

2 petition or request unless a responsive pleading is required

3 in which case the court of appeals shall decide the applica4 tion within 20 days of the filing of the responsive pleading.

5 If en banc consideration is granted, the en banc court shall

6 determine the appeal within 90 days of the decision to

7 grant such consideration.

8 ‘‘(3) The time limitations contained in paragraphs

9 (1) and (2) may be extended only once for 20 days, upon

10 an express good cause finding by the court that the inter11 ests of justice warrant such a one-time extension. The spe12 cific grounds for the good cause finding shall be set forth

13 in writing in any extension order of the court.

14 ‘‘(b) The time limitations under subsection (a) shall

15 apply to an initial petition or motion, and to any second

16 or successive petition or motion. The same limitations

17 shall also apply to the re-determination of a petition or

18 motion or related appeal following a remand by the court

19 of appeals or the Supreme Court for further proceedings,

20 and in such a case the limitation period shall run from

21 the date of the remand.

22 ‘‘(c) The time limitations under this section shall not

23 be construed to entitle a petitioner or movant to a stay

24 of execution, to which the petitioner or movant would oth-
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1 erwise not be entitled, for the purpose of litigating any

2 petition, motion, or appeal.

3 ‘‘(d) The failure of a court to meet or comply with

4 the time limitations under this section shall not be a

5 ground for granting relief from a judgment of conviction

6 or sentence. The State or Government may enforce the

7 time limitations under this section by applying to the court

8 of appeals or the Supreme Court for a writ of mandamus.

9 ‘‘(e) The Administrative Office of United States

10 Courts shall report annually to Congress on the compli11 ance by the courts with the time limits established in this

12 section.

13 ‘‘(f) The adjudication of any petition under section

14 2254 of this title that is subject to this chapter, and the

15 adjudication of any motion under section 2255 of this title

16 by a person under sentence of death, shall be given prior17 ity by the district court and by the court of appeals over

18 all noncapital matters.

19 ‘‘§ 2263. Rule of construction

20 ‘‘This chapter shall be construed to promote the expe21 ditious conduct and conclusion of State and Federal court

22 review in capital cases.’’.

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

24 at the beginning of part VI of title 28, United States Code,
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1 is amended by inserting after the item relating to chapter

2 153 the following new item:

‘‘154. Special habeas corpus procedures in capital cases 2256’’.

3 Subtitle C—Funding for Litigation

4 of Federal Habeas Corpus Peti5 tions in Capital Cases

6 SEC. 121. FUNDING FOR DEATH PENALTY PROSECUTIONS.

7 (a) IN GENERAL.—Part E of title I of the Omnibus

8 Crime Control and Safe Streets Act of 1968 (42 U.S.C.

9 3711 et seq.) is amended by adding at the end the follow10 ing new section:

11 ‘‘FUNDING FOR LITIGATION OF FEDERAL HABEAS

12 CORPUS PETITIONS IN CAPITAL CASES

13 ‘‘SEC. 523. Notwithstanding any other provision of

14 this subpart, the Director is authorized to provide grants

15 to the States, from the funding allocated pursuant to sec16 tion 511, for the purpose of supporting litigation pertain17 ing to Federal habeas corpus petitions in capital cases.

18 The total funding available for such grants within any fis19 cal year shall be equal to the funding provided to capital

20 resource centers, pursuant to Federal appropriation, in

21 the same fiscal year.’’.

22 (b) CLERICAL AMENDMENT.—The table of contents

23 at the beginning of title I of the Omnibus Crime Control

24 and Safe Streets Act of 1968 is amended by inserting
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1 after the item relating to section 522 the following new

2 item:

‘‘Sec. 523. Funding for litigation of Federal habeas corpus petitions in capital

cases.’’.

3 TITLE II—FEDERAL DEATH PEN4 ALTY PROCEDURES REFORM

5 SEC. 201. FEDERAL DEATH PENALTY PROCEDURES RE6 FORM.

7 (a) IN GENERAL.—Subsection (e) of section 3593 of

8 title 18, United States Code, is amended by striking ‘‘shall

9 consider’’ and all that follows through the end of such sub10 section and inserting the following: ‘‘shall then consider

11 whether the aggravating factor or factors found to exist

12 outweigh any mitigating factors. The jury, or if there is

13 no jury, the court shall recommend a sentence of death

14 if it unanimously finds at least one aggravating factor and

15 no mitigating factor or if it finds one or more aggravating

16 factors which outweigh any mitigating factors. In any

17 other case, it shall not recommend a sentence of death.

18 The jury shall be instructed that it must avoid any influ19 ence of sympathy, sentiment, passion, prejudice, or other

20 arbitrary factors in its decision, and should make such a

21 recommendation as the information warrants. The jury

22 shall be instructed that its recommendation concerning a

23 sentence of death is to be based on the aggravating factor

24 or factors and any mitigating factors which have been
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1 found, but that the final decision concerning the balance

2 of aggravating and mitigating factors is a matter for the

3 jury’s judgment.’’.

4 (b) CONFORMING AMENDMENT.—Section 3594 of

5 title 18, United States Code, is amended by striking ‘‘or

6 life imprisonment without possibility of release’’.

Passed the House of Representatives February 8,

1995.

Attest:

Clerk.
104TH CONGRESS

1ST SESSION H. R. 729

AN ACT

To control crime by a more effective death penalty.