Union Calendar No. 10

104TH CONGRESS

1ST SESSION H.R. 729

[Report No. 104–23]

A BILL

To control crime by a more effective death penalty.

FEBRUARY 8, 1995

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 10

104TH CONGRESS

1ST SESSION H. R. 729

[Report No. 104–23]

To control crime by a more effective death penalty.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 30, 1995

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

Committee on the Judiciary

FEBRUARY 8, 1995

Additional sponsors: Mr. BRYANT of Tennessee, Mr. BLILEY, Mr. ENGLISH

of Pennsylvania, Mr. WELLER, and Mr. ROYCE

FEBRUARY 8, 1995

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on January 30, 1995]

A BILL

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,
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the ‘‘Ef3 fective Death Penalty Act of 1995’’.

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

5 follows:

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 failure to exhaust State remedies.

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.
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1 TITLE I—EFFECTIVE DEATH

2 PENALTY

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 amend10 ed 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 in

13 custody pursuant to the judgment of a State court. The lim14 itation period shall run from the latest of the following

15 times:

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

17 final by the conclusion of direct review or the expira18 tion of the time for seeking such review.

19 ‘‘(B) The time at which the impediment to filing

20 an application created by State action in violation of

21 the Constitution or laws of the United States is re22 moved, where the applicant was prevented from filing

23 by such State action.

24 ‘‘(C) The time at which the Federal right as25 serted was initially recognized by the Supreme Court,
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1 where the right has been newly recognized by the

2 Court and is retroactively applicable.

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

4 the claim or claims presented could have been discov5 ered through the exercise of reasonable diligence.

6 ‘‘(2) Time that passes during the pendency of a prop7 erly filed application for State review with respect to the

8 pertinent judgment or claim shall not be counted toward

9 any period of limitation under this subsection.’’.

10 SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE

11 CERTIFICATES OF PROBABLE CAUSE FOR AP12 PEAL IN HABEAS CORPUS AND FEDERAL COL13 LATERAL RELIEF PROCEEDINGS.

14 Section 2253 of title 28, United States Code, is amend15 ed to read as follows:

16 ‘‘§ 2253. Appeal

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

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

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

20 by the court of appeals for the circuit where the proceeding

21 is had.

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

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

24 remove, to another district or place for commitment or trial,

25 a person charged with a criminal offense against the United
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1 States, or to test the validity of his detention pending re2 moval proceedings.

3 ‘‘(c) An appeal may not be taken to the court of ap4 peals from the final order in a habeas corpus proceeding

5 where the detention complained of arises out of process is6 sued by a State court, or from the final order in a proceed7 ing under section 2255 of this title, unless a circuit justice

8 or judge issues a certificate of probable cause. A certificate

9 of probable cause may only issue if the petitioner has made

10 a substantial showing of the denial of a Federal right. The

11 certificate of probable cause must indicate which specific

12 issue or issues satisfy this standard.’’.

13 SEC. 103. CONFORMING AMENDMENT TO THE RULES OF AP14 PELLATE PROCEDURE.

15 Federal Rule of Appellate Procedure 22 is amended to

16 read as follows:

17 ‘‘RULE 22

18 ‘‘HABEAS CORPUS AND SECTION 2255 PROCEEDINGS

19 ‘‘(a) APPLICATION FOR AN ORIGINAL WRIT OF HA20 BEAS CORPUS.—An application for a writ of habeas corpus

21 shall be made to the appropriate district court. If applica22 tion is made to a circuit judge, the application will ordi23 narily be transferred to the appropriate district court. If

24 an application is made to or transferred to the district

25 court and denied, renewal of the application before a circuit
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1 judge is not favored; the proper remedy is by appeal to the

2 court of appeals from the order of the district court denying

3 the writ.

4 ‘‘(b) NECESSITY OF CERTIFICATE OF PROBABLE

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

6 which the detention complained of arises out of process is7 sued by a State court, and in a motion proceeding pursuant

8 to section 2255 of title 28, United States Code, an appeal

9 by the applicant or movant may not proceed unless a cir10 cuit judge issues a certificate of probable cause. If a request

11 for a certificate of probable cause is addressed to the court

12 of appeals, it shall be deemed addressed to the judges thereof

13 and shall be considered by a circuit judge or judges as the

14 court deems appropriate. If no express request for a certifi15 cate is filed, the notice of appeal shall be deemed to con16 stitute a request addressed to the judges of the court of ap17 peals. If an appeal is taken by a State or the Government

18 or its representative, a certificate of probable cause is not

19 required.’’.

20 SEC. 104. EFFECT OF FAILURE TO EXHAUST STATE REM21 EDIES.

22 Section 2254(b) of title 28, United States Code, is

23 amended to read as follows:

24 ‘‘(b) An application for a writ of habeas corpus in be25 half of a person in custody pursuant to the judgment of
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1 a State court shall not be granted unless it appears that

2 the applicant has exhausted the remedies available in the

3 courts of the State, or that there is either an absence of

4 available State corrective process or the existence of cir5 cumstances rendering such process ineffective to protect the

6 rights of the applicant. An application may be denied on

7 the merits notwithstanding the failure of the applicant to

8 exhaust the remedies available in the courts of the State.

9 A State shall not be deemed to have waived the exhaustion

10 requirement, or be estopped from reliance upon the require11 ment unless through its counsel it waives the requirement

12 expressly.’’.

13 SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRIS14 ONERS FILING FOR COLLATERAL REMEDY.

15 Section 2255 of title 28, United States Code, is amend16 ed by striking the second paragraph and the penultimate

17 paragraph thereof, and by adding at the end the following

18 new paragraphs:

19 ‘‘A two-year period of limitation shall apply to a mo20 tion under this section. The limitation period shall run

21 from the latest of the following times:

22 ‘‘(1) The time at which the judgment of convic23 tion becomes final.

24 ‘‘(2) The time at which the impediment to mak25 ing a motion created by governmental action in viola-
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1 tion of the Constitution or laws of the United States

2 is removed, where the movant was prevented from

3 making a motion by such governmental action.

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

5 initially recognized by the Supreme Court, where the

6 right has been newly recognized by the Court and is

7 retroactively applicable.

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

9 the claim or claims presented could have been discov10 ered through the exercise of reasonable diligence.’’.

11 Subtitle B—Special Procedures for

12 Collateral Proceedings in Cap13 ital Cases

14 SEC. 111. DEATH PENALTY LITIGATION PROCEDURES.

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

16 amended by inserting the following new chapter after chap17 ter 153:

18 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

19 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 inapplicable.

‘‘2261. Application to State unitary review procedures.

‘‘2262. Limitation periods for determining petitions.

‘‘2263. Rule of construction.
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1 ‘‘§ 2256. Prisoners in State custody subject to capital

2 sentence; appointment of counsel; require3 ment of rule of court or statute; proce4 dures for appointment

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

6 section 2254 brought by prisoners in State custody who are

7 subject to a capital sentence. It shall apply only if the provi8 sions of subsections (b) and (c) are satisfied.

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

10 by rule of its court of last resort or by statute a mechanism

11 for the appointment, compensation and payment of reason12 able litigation expenses of competent counsel in State

13 postconviction proceedings brought by indigent prisoners

14 whose capital convictions and sentences have been upheld

15 on direct appeal to the court of last resort in the State or

16 have otherwise become final for State law purposes. The rule

17 of court or statute must provide standards of competency

18 for the appointment of such counsel.

19 ‘‘(c) Any mechanism for the appointment, compensa20 tion and reimbursement of counsel as provided in subsection

21 (b) must offer counsel to all State prisoners under capital

22 sentence and must provide for the entry of an order by a

23 court of record: (1) appointing one or more counsel to rep24 resent the prisoner upon a finding that the prisoner is indi25 gent and accepted the offer or is unable competently to de26 cide whether to accept or reject the offer; (2) finding, after
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1 a hearing if necessary, that the prisoner rejected the offer

2 of counsel and made the decision with an understanding

3 of its legal consequences; or (3) denying the appointment

4 of counsel upon a finding that the prisoner is not indigent.

5 ‘‘(d) No counsel appointed pursuant to subsections (b)

6 and (c) to represent a State prisoner under capital sentence

7 shall have previously represented the prisoner at trial or

8 on direct appeal in the case for which the appointment is

9 made unless the prisoner and counsel expressly request con10 tinued representation.

11 ‘‘(e) The ineffectiveness or incompetence of counsel dur12 ing State or Federal collateral postconviction proceedings

13 in a capital case shall not be a ground for relief in a pro14 ceeding arising under section 2254 of this chapter. This

15 limitation shall not preclude the appointment of different

16 counsel, on the court’s own motion or at the request of the

17 prisoner, at any phase of State or Federal postconviction

18 proceedings on the basis of the ineffectiveness or incom19 petence of counsel in such proceedings.

20 ‘‘§ 2257. Mandatory stay of execution; duration; limits

21 on stays of execution; successive petitions

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

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

24 order setting an execution date for a State prisoner shall

25 be stayed upon application to any court that would have
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1 jurisdiction over any proceedings filed under section 2254.

2 The application must recite that the State has invoked the

3 postconviction review procedures of this chapter and that

4 the scheduled execution is subject to stay.

5 ‘‘(b) A stay of execution granted pursuant to subsection

6 (a) shall expire if—

7 ‘‘(1) a State prisoner fails to file a habeas corpus

8 petition under section 2254 within the time required

9 in section 2258, or fails to make a timely application

10 for court of appeals review following the denial of

11 such a petition by a district court;

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

13 of appeals review under section 2254 the petition for

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

15 for certiorari has expired and no petition has been

16 filed; (B) a timely petition for certiorari was filed

17 and the Supreme Court denied the petition; or (C) a

18 timely petition for certiorari was filed and upon con19 sideration of the case, the Supreme Court disposed of

20 it in a manner that left the capital sentence undis21 turbed; or

22 ‘‘(3) before a court of competent jurisdiction, in

23 the presence of counsel and after having been advised

24 of the consequences of his decision, a State prisoner
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1 under capital sentence waives the right to pursue ha2 beas corpus review under section 2254.

3 ‘‘(c) If one of the conditions in subsection (b) has oc4 curred, no Federal court thereafter shall have the authority

5 to enter a stay of execution or grant relief in a capital case

6 unless—

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

8 is a claim not previously presented in the State or

9 Federal courts;

10 ‘‘(2) the failure to raise the claim is (A) the re11 sult of State action in violation of the Constitution or

12 laws of the United States; (B) the result of the Su13 preme Court recognition of a new Federal right that

14 is retroactively applicable; or (C) based on a factual

15 predicate that could not have been discovered through

16 the exercise of reasonable diligence in time to present

17 the claim for State or Federal postconviction review;

18 and

19 ‘‘(3) the facts underlying the claim would be suf20 ficient to establish by clear and convincing evidence

21 that but for constitutional error, no reasonable fact

22 finder would have found the petitioner guilty of the

23 underlying offense.

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

25 Federal district court or appellate judge shall have the au-
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1 thority to enter a stay of execution, issue injunctive relief,

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

3 any successive habeas petition unless the court first deter4 mines the petition or other action does not constitute an

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

6 by the district judge or appellate panel who adjudicated the

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

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

9 subsequently assigned as a result of the unavailability of

10 the original court or judges). In the Federal courts of ap11 peal, a stay may issue pursuant to the terms of this provi12 sion only when a majority of the original panel or majority

13 of the active judges determines the petition does not con14 stitute an abuse of the writ.

15 ‘‘§ 2258. Filing of habeas corpus petition; time require16 ments; tolling rules

17 ‘‘Any petition for habeas corpus relief under section

18 2254 must be filed in the appropriate district court within

19 one hundred and eighty days from the filing in the appro20 priate State court of record of an order under section

21 2256(c). The time requirements established by this section

22 shall be tolled—

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

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

25 disposition of the petition if a State prisoner files the
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1 petition to secure review by the Supreme Court of the

2 affirmance of a capital sentence on direct review by

3 the court of last resort of the State or other final State

4 court decision on direct review;

5 ‘‘(2) during any period in which a State pris6 oner under capital sentence has a properly filed re7 quest for postconviction review pending before a State

8 court of competent jurisdiction; if all State filing

9 rules are met in a timely manner, this period shall

10 run continuously from the date that the State pris11 oner initially files for postconviction review until

12 final disposition of the case by the highest court of the

13 State, but the time requirements established by this

14 section are not tolled during the pendency of a peti15 tion for certiorari before the Supreme Court except as

16 provided in paragraph (1); and

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

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

19 is filed in the Federal district court that would have

20 proper jurisdiction over the case upon the filing of a

21 habeas corpus petition under section 2254; and (B) a

22 showing of good cause is made for the failure to file

23 the habeas corpus petition within the time period es24 tablished by this section.
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1 ‘‘§ 2259. Scope of Federal review; district court adju2 dications

3 ‘‘(a) Whenever a State prisoner under capital sentence

4 files a petition for habeas corpus relief to which this chapter

5 applies, the district court shall only consider a claim or

6 claims that have been raised and decided on the merits in

7 the State courts, unless the failure to raise the claim prop8 erly is—

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

10 Constitution or laws of the United States;

11 ‘‘(2) the result of the Supreme Court recognition

12 of a new Federal right that is retroactively applica13 ble; or

14 ‘‘(3) based on a factual predicate that could not

15 have been discovered through the exercise of reasonable

16 diligence in time to present the claim for State or

17 Federal postconviction review.

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

19 forth in subsection (a) and section 2254(d) of this title, the

20 court shall rule on the claims properly before it.

21 ‘‘§ 2260. Certificate of probable cause inapplicable

22 ‘‘The requirement of a certificate of probable cause in

23 order to appeal from the district court to the court of ap24 peals does not apply to habeas corpus cases subject to the

25 provisions of this chapter except when a second or successive

26 petition is filed.
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1 ‘‘§ 2261. Application to State unitary review procedure

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

3 procedure means a State procedure that authorizes a person

4 under sentence of death to raise, in the course of direct re5 view of the judgment, such claims as could be raised on

6 collateral attack. The provisions of this chapter shall apply,

7 as provided in this section, in relation to a State unitary

8 review procedure if the State establishes by rule of its court

9 of last resort or by statute a mechanism for the appoint10 ment, compensation and payment of reasonable litigation

11 expenses of competent counsel in the unitary review pro12 ceedings, including expenses relating to the litigation of col13 lateral claims in the proceedings. The rule of court or stat14 ute must provide standards of competency for the appoint15 ment of such counsel.

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

17 section, must include an offer of counsel following trial for

18 the purpose of representation on unitary review, and entry

19 of an order, as provided in section 2256(c), concerning ap20 pointment of counsel or waiver or denial of appointment

21 of counsel for that purpose. No counsel appointed to rep22 resent the prisoner in the unitary review proceedings shall

23 have previously represented the prisoner at trial in the case

24 for which the appointment is made unless the prisoner and

25 counsel expressly request continued representation.
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1 ‘‘(c) Sections 2257, 2258, 2259, 2260, and 2262 shall

2 apply in relation to cases involving a sentence of death from

3 any State having a unitary review procedure that qualifies

4 under this section. References to State ‘post-conviction re5 view’ and ‘direct review’ in those sections shall be under6 stood as referring to unitary review under the State proce7 dure. The references in sections 2257(a) and 2258 to ‘an

8 order under section 2256(c)’ shall be understood as referring

9 to the post-trial order under subsection (b) concerning rep10 resentation in the unitary review proceedings, but if a tran11 script of the trial proceedings is unavailable at the time

12 of the filing of such an order in the appropriate State court,

13 then the start of the one hundred and eighty day limitation

14 period under section 2258 shall be deferred until a tran15 script is made available to the prisoner or his counsel.

16 ‘‘§ 2262. Limitation periods for determining petitions

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

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

19 on an evidentiary hearing, or where no evidentiary hearing

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

21 the case.

22 ‘‘(2)(A) The court of appeals shall determine any ap23 peal relating to such a petition or motion within 90 days

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

25 such reply brief would be due. For purposes of this provi-
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1 sion, any reply brief shall be due within 14 days of the

2 opposition brief.

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

4 for rehearing and or request by an appropriate judge for

5 rehearing en banc within 20 days of the filing of such a

6 petition or request unless a responsive pleading is required

7 in which case the court of appeals shall decide the applica8 tion within 20 days of the filing of the responsive pleading.

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

10 determine the appeal within 90 days of the decision to grant

11 such consideration.

12 ‘‘(3) The time limitations contained in paragraphs (1)

13 and (2) may be extended only once for 20 days, upon an

14 express good cause finding by the court that the interests

15 of justice warrant such a one-time extension. The specific

16 grounds for the good cause finding shall be set forth in writ17 ing in any extension order of the court.

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

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

20 or successive petition or motion. The same limitations shall

21 also apply to the re-determination of a petition or motion

22 or related appeal following a remand by the court of ap23 peals or the Supreme Court for further proceedings, and in

24 such a case the limitation period shall run from the date

25 of the remand.
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1 ‘‘(c) The time limitations under this section shall not

2 be construed to entitle a petitioner or movant to a stay of

3 execution, to which the petitioner or movant would other4 wise not be entitled, for the purpose of litigating any peti5 tion, motion, or appeal.

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

7 the time limitations under this section shall not be a ground

8 for granting relief from a judgment of conviction or sen9 tence. The State or Government may enforce the time limi10 tations under this section by applying to the court of ap11 peals or the Supreme Court for a writ of mandamus.

12 ‘‘(e) The Administrative Office of United States Courts

13 shall report annually to Congress on the compliance by the

14 courts with the time limits established in this section.

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

16 2254 of this title that is subject to this chapter, and the

17 adjudication of any motion under section 2255 of this title

18 by a person under sentence of death, shall be given priority

19 by the district court and by the court of appeals over all

20 noncapital matters.

21 ‘‘§ 2263. Rule of construction

22 ‘‘This chapter shall be construed to promote the expedi23 tious conduct and conclusion of State and Federal court

24 review in capital cases.’’.
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1 (b) CLERICAL AMENDMENT.—The table of chapters at

2 the beginning of part VI of title 28, United States Code,

3 is amended by inserting after the item relating to chapter

4 153 the following new item:

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

5 Subtitle C—Funding for Litigation

6 of Federal Habeas Corpus Peti7 tions in Capital Cases

8 SEC. 121. FUNDING FOR DEATH PENALTY PROSECUTIONS.

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

10 Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711

11 et seq.) is amended by adding at the end the following new

12 section:

13 ‘‘FUNDING FOR LITIGATION OF FEDERAL HABEAS CORPUS

14 PETITIONS IN CAPITAL CASES

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

16 this subpart, the Director shall provide grants to the States,

17 from the funding allocated pursuant to section 511, for the

18 purpose of supporting litigation pertaining to Federal ha19 beas corpus petitions in capital cases. The total funding

20 available for such grants within any fiscal year shall be

21 equal to the funding provided to capital resource centers,

22 pursuant to Federal appropriation, in the same fiscal

23 year.’’.

24 (b) CLERICAL AMENDMENT.—The table of contents at

25 the beginning of title I of the Omnibus Crime Control and
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1 Safe Streets Act of 1968 is amended by inserting after the

2 item relating to section 522 the following new item:

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

cases.’’.

3 TITLE II—FEDERAL DEATH

4 PENALTY 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 out12 weigh any mitigating factors. The jury, or if there is no

13 jury, the court shall recommend a sentence of death if it

14 unanimously finds at least one aggravating factor and no

15 mitigating factor or if it finds one or more aggravating

16 factors which outweigh any mitigating factors. In any other

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

18 shall be instructed that it must avoid any influence of sym19 pathy, sentiment, passion, prejudice, or other arbitrary fac20 tors in its decision, and should make such a recommenda21 tion as the information warrants. The jury shall be in22 structed that its recommendation concerning a sentence of

23 death is to be based on the aggravating factor or factors

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

2 mitigating factors is a matter for the jury’s judgment.’’.

3 (b) CONFORMING AMENDMENT.—Section 3594 of title

4 18, United States Code, is amended by striking ‘‘or life im5 prisonment without possibility of release’’.

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