I

107TH CONGRESS

1ST SESSION H. R. 1038

To place a moratorium on executions by the Federal Government and urge

the States to do the same, while a National Commission on the Death

Penalty reviews the fairness of the imposition of the death penalty.

IN THE HOUSE OF REPRESENTATIVES

MARCH 15, 2001

Mr. JACKSON of Illinois (for himself, Mr. RODRIGUEZ, Mr. CLAY, Mr.

HOEFFEL, and Ms. JACKSON-LEE of Texas) introduced the following bill;

which was referred to the Committee on the Judiciary

A BILL

To place a moratorium on executions by the Federal Government and urge the States to do the same, while a National Commission on the Death Penalty reviews the

fairness of the imposition of the 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.

4 This Act may be cited as the ‘‘National Death Pen5 alty Moratorium Act of 2001’’.
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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) GENERAL FINDINGS.—

6 (A) The administration of the death pen7 alty by the Federal government and the States

8 should be consistent with our Nation’s funda9 mental principles of fairness, justice, equality,

10 and due process.

11 (B) At a time when Federal executions are

12 scheduled to recommence, Congress should con13 sider that more than ever Americans are ques14 tioning the use of the death penalty and calling

15 for assurances that it be fairly applied. Support

16 for the death penalty has dropped to the lowest

17 level in 19 years. An NBC News/Wall Street

18 Journal Poll revealed that 63 percent of Ameri19 cans support a suspension of executions until

20 questions of fairness can be addressed.

21 (C) Documented unfairness in the Federal

22 system requires Congress to act and suspend

23 Federal executions. Additionally, substantial

24 evidence of unfairness throughout death penalty
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1 States justifies further investigation by Con2 gress.

3 (2) ADMINISTRATION OF THE DEATH PENALTY

4 BY THE FEDERAL GOVERNMENT.—

5 (A) The fairness of the administration of

6 the Federal death penalty has recently come

7 under serious scrutiny, specifically raising ques8 tions of racial and geographic disparities:

9 (i) Eighty percent of Federal death

10 row inmates are members of minority

11 groups.

12 (ii) A report released by the Depart13 ment of Justice on September 12, 2000,

14 found that 80 percent of defendants who

15 were charged with death-eligible offenses

16 under Federal law and whose cases were

17 submitted by the United States attorneys

18 under the Department’s death penalty de19 cision-making procedures were African

20 American, Hispanic American, or members

21 of other minority groups.

22 (iii) The Department of Justice report

23 shows that United States attorneys in only

24 5 of 94 Federal districts—1 each in Vir25 ginia, Maryland, Puerto Rico, and 2 in
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1 New York—submit 40 percent of all cases

2 in which the death penalty is considered.

3 (iv) The Department of Justice report

4 shows that United States attorneys who

5 have frequently recommended seeking the

6 death penalty are often from States with a

7 high number of executions under State

8 law, including Texas, Virginia, and Mis9 souri.

10 (v) The Department of Justice report

11 shows that white defendants are more like12 ly than black defendants to negotiate plea

13 bargains saving them from the death pen14 alty in Federal cases.

15 (vi) A study conducted by the House

16 Judiciary Subcommittee on Civil and Con17 stitutional Rights in 1994 concluded that

18 89 percent of defendants selected for cap19 ital prosecution under the Anti-Drug

20 Abuse Act of 1988 were either African

21 American or Hispanic American.

22 (vii) The National Institute of Justice

23 has already set into motion a comprehen24 sive study of these racial and geographic

25 disparities.
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1 (viii) Federal executions should not

2 proceed until these disparities are fully

3 studied, discussed, and the federal death

4 penalty process is subjected to necessary

5 remedial action.

6 (B) In addition to racial and geographic

7 disparities in the administration of the federal

8 death penalty, other serious questions exist

9 about the fairness and reliability of federal

10 death penalty prosecutions:

11 (i) Federal prosecutors rely heavily on

12 bargained-for testimony from accomplices

13 of the capital defendant, which is often ob14 tained in exchange for not seeking the

15 death penalty against the accomplices.

16 This practice creates a serious risk of false

17 testimony.

18 (ii) Federal prosecutors are not re19 quired to provide discovery sufficiently

20 ahead of trial to permit the defense to be

21 prepared to use this information effectively

22 in defending their clients.

23 (iii) The Federal Bureau of Investiga24 tion (FBI), in increasing isolation from the

25 rest of the nation’s law enforcement agen-
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1 cies, refuses to make electronic recordings

2 of interrogations that produce confessions,

3 thus making subsequent scrutiny of the le4 gality and reliability of such interrogations

5 more difficult.

6 (iv) Federal prosecutors rely heavily

7 on predictions of ‘‘future dangerous8 ness’’—predictions deemed unreliable and

9 misleading by the American Psychiatric

10 Association and the American Psycho11 logical Association—to secure death sen12 tences.

13 (3) ADMINISTRATION OF THE DEATH PENALTY

14 BY THE STATES.—

15 (A) The punishment of death carries an

16 especially heavy burden to be free from arbi17 trariness and discrimination. The Supreme

18 Court has held that ‘‘super due process’’, a

19 higher standard than that applied in regular

20 criminal trials, is necessary to meet constitu21 tional requirements. There is significant evi22 dence that States are not providing this height23 ened level of due process. For example:

24 (i) In the most comprehensive review

25 of modern death sentencing, Professor
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1 James Liebman and researchers at Colum2 bia University found that, during the pe3 riod 1973 to 1995, 68 percent of all death

4 penalty cases reviewed were overturned due

5 to serious constitutional errors. In the

6 wake of the Liebman study, 6 States (Ari7 zona, Maryland, North Carolina, Illinois,

8 Indiana, and Nebraska), as well as the

9 Chicago Tribune and the Texas Defender

10 Service are conducting additional studies.

11 These studies may expose additional prob12 lems. With few exceptions, the rate of

13 error was consistent across all death pen14 alty States.

15 (ii) Forty percent of the cases over16 turned were reversed in Federal court after

17 having been upheld by the States.

18 (B) The high rate of error throughout all

19 death penalty jurisdictions suggests that there

20 is a grave risk that innocent persons may have

21 been, or will likely be, wrongfully executed. Al22 though the Supreme Court has never conclu23 sively addressed the issue of whether executing

24 an innocent person would in and of itself violate

25 the Constitution, in Herrara v. Collins, 506
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1 U.S. 390 (1993), a majority of the court ex2 pressed the view that a persuasive demonstra3 tion of actual innocence would violate sub4 stantive due process rendering imposition of a

5 death sentence unconstitutional. In any event,

6 the wrongful conviction and sentencing of a per7 son to death is a serious concern for many

8 Americans. For example:

9 (i) After 13 innocent people were re10 leased from Illinois death row in the same

11 period that the State had executed 12 peo12 ple, on January 31, 2000, Governor

13 George Ryan of Illinois imposed a morato14 rium on executions until he could be ‘‘sure

15 with moral certainty that no innocent man

16 or woman is facing a lethal injection, no

17 one will meet that fate’’.

18 (ii) Since 1973, 93 persons have been

19 freed and exonerated from death rows

20 across the country, most after serving

21 lengthy sentences.

22 (C) Wrongful convictions create a serious

23 public safety problem because the true killer is

24 still at large, while the innocent person lan25 guishes in prison.
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1 (D) There are many systemic problems

2 that result in innocent people being convicted

3 such as mistaken identification, reliance on jail4 house informants, reliance on faulty forensic

5 testing and no access to reliable DNA testing.

6 For example:

7 (i) A study of cases of innocent people

8 who were later exonerated, conducted by

9 attorneys Barry Scheck and Peter Neufeld

10 with ‘‘The Innocence Project’’ at Cardozo

11 Law School, showed that mistaken identi12 fications of eyewitnesses or victims contrib13 uted to 84 percent of the wrongful convic14 tions.

15 (ii) Many persons on death row were

16 convicted prior to 1994 and did not receive

17 the benefit of modern DNA testing. At

18 least 10 individuals sentenced to death

19 have been exonerated through post-convic20 tion DNA testing, some within days of exe21 cution. Yet in spite of the current wide22 spread prevalence and availability of DNA

23 testing, many States have procedural bar24 riers blocking introduction of post-convic25 tion DNA testing. More than 30 States
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1 have laws that require a motion for a new

2 trial based on newly discovered evidence to

3 be filed within 6 months or less.

4 (iii) The widespread use of jailhouse

5 snitches who earn reduced charges or sen6 tences by fabricating ‘‘admissions’’ by fel7 low inmates to unsolved crimes can lead to

8 wrongful convictions.

9 (iv) The misuse of forensic evidence

10 can lead to wrongful convictions. A re11 cently released report from the Texas De12 fender Service entitled ‘‘A State of Denial:

13 Texas and the Death Penalty’’ found 160

14 cases of official forensic misconduct includ15 ing 121 cases where expert psychiatrists

16 testified ‘‘with absolute certainty that the

17 defendant would be a danger in the fu18 ture’’, often without even interviewing the

19 defendant.

20 (E) The sixth amendment to the Constitu21 tion guarantees all accused persons access to

22 competent counsel. The Supreme Court set out

23 standards for determining competency in the

24 case of Strickland v. Washington, 466 U.S. 668

25 (1984). Unfortunately, there is unequal access
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1 to competent counsel throughout death penalty

2 States. For example:

3 (i) Ninety percent of capital defend4 ants cannot afford to hire their own attor5 ney.

6 (ii) Fewer than one-quarter of the 38

7 death penalty States have set any stand8 ards for competency of counsel and in

9 those few States, these standards were set

10 only recently. In most States, any person

11 who passes a bar examination, even if that

12 attorney has never represented a client in

13 any type of case, may represent a client in

14 a death penalty case.

15 (iii) Thirty-seven percent of capital

16 cases were reversed because of ineffective

17 assistance of counsel, according to the Co18 lumbia study.

19 (iv) The recent Texas report noted

20 problems with Texas defense attorneys who

21 slept through capital trials, ignored obvious

22 exculpatory evidence, suffered discipline for

23 ethical lapses or for being under the influ24 ence of drugs or alcohol while representing

25 an indigent capital defendant at trial.
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1 (v) Poor lawyering was also cited by

2 Governor Ryan in Illinois as a basis for a

3 moratorium. More than half of all capital

4 defendants there were represented by law5 yers who were later disciplined or dis6 barred for unethical conduct.

7 (F) The Supreme Court has held that it is

8 a violation of the eighth amendment to impose

9 the death penalty in a manner that is arbitrary,

10 capricious, or discriminatory. McKlesky v.

11 Kemp, 481 U.S. 279 (1987). Studies consist12 ently indicate racial disparity in the application

13 of the death penalty both for the defendants

14 and the victims. The death penalty is dispar15 ately applied in various regions throughout the

16 country, suggesting arbitrary administration of

17 the death penalty based on where the prosecu18 tion takes place. For example:

19 (i) Of the 85 executions in the year

20 2000, 51 percent of the defendants were

21 white, 40 percent were black, 7 percent

22 were Latino and 2 percent Native Amer23 ican. Of the victims in the underlying mur24 der, 76 percent were white, 18 percent

25 were black, 2 percent were Latino, and 3
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1 percent were ‘‘other’’. These figures show

2 a continuing trend since reinstatement of

3 the modern death penalty of a predomi4 nance of white victims’ cases. Despite the

5 fact that nationally whites and blacks are

6 victims of murder in approximately equal

7 numbers, 83 percent of the victims in8 volved in capital cases overall since rein9 statement, and 76 percent of the victims in

10 2000, have been white. Since this disparity

11 is confirmed in studies that control for

12 similar crimes by defendants with similar

13 backgrounds, it implies that white victims

14 are considered more valuable in the crimi15 nal justice system.

16 (ii) Executions are conducted pre17 dominately in southern States. Ninety per18 cent of all executions in 2000 were con19 ducted in the south. Only 3 States outside

20 the south, Arizona, California, and Mis21 souri, conducted an execution in 2000.

22 Texas accounted for almost as many execu23 tions as all the remaining States combined.
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1 SEC. 102. FEDERAL AND STATE DEATH PENALTY MORATO2 RIUM.

3 (a) IN GENERAL.—The Federal Government shall

4 not carry out any sentence of death imposed under Fed5 eral law until the Congress considers the final findings and

6 recommendations of the National Commission on the

7 Death Penalty in the report submitted under section

8 202(c)(2) and the Congress enacts legislation repealing

9 this section and implements or rejects the guidelines and

10 procedures recommended by the Commission.

11 (b) SENSE OF CONGRESS.—It is the sense of Con12 gress that each State that authorizes the use of the death

13 penalty should enact a moratorium on executions to allow

14 time to review whether the administration of the death

15 penalty by that State is consistent with constitutional re16 quirements of fairness, justice, equality, and due process.

17 TITLE II—NATIONAL COMMIS18 SION ON THE DEATH PEN19 ALTY

20 SEC. 201. ESTABLISHMENT OF COMMISSION.

21 (a) ESTABLISHMENT.—There is established a com22 mission to be known as the National Commission on the

23 Death Penalty (in this title referred to as the ‘‘Commis24 sion’’).

25 (b) MEMBERSHIP.—
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1 (1) APPOINTMENT.—Members of the Commis2 sion shall be appointed by the President in consulta3 tion with the Attorney General and the Chairmen

4 and Ranking Members of the Committees on the Ju5 diciary of the House of Representatives and the Sen6 ate.

7 (2) COMPOSITION.—The Commission shall be

8 composed of 15 members, of whom—

9 (A) 3 members shall be Federal or State

10 prosecutors;

11 (B) 3 members shall be attorneys experi12 enced in capital defense;

13 (C) 2 members shall be current or former

14 Federal or State judges;

15 (D) 2 members shall be current or former

16 Federal or State law enforcement officials; and

17 (E) 5 members shall be individuals from

18 the public or private sector who have knowledge

19 or expertise, whether by experience or training,

20 in matters to be studied by the Commission,

21 which may include—

22 (i) officers or employees of the Fed23 eral Government or State or local govern24 ments;
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1 (ii) members of academia, nonprofit

2 organizations, the religious community, or

3 industry; and

4 (iii) other interested individuals.

5 (3) BALANCED VIEWPOINTS.—In appointing the

6 members of the Commission, the President shall, to

7 the maximum extent practicable, ensure that the

8 membership of the Commission is fairly balanced

9 with respect to the opinions of the members of the

10 Commission regarding support for or opposition to

11 the use of the death penalty.

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

13 members of the Commission shall be made not later

14 than 30 days after the date of enactment of this

15 Act.

16 (c) PERIOD OF APPOINTMENT.—Each member shall

17 be appointed for the life of the Commission.

18 (d) VACANCIES.—A vacancy in the Commission shall

19 not affect the powers of the Commission, but shall be filled

20 in the same manner as the original appointment.

21 (e) INITIAL MEETING.—Not later than 30 days after

22 all initial members of the Commission have been ap23 pointed, the Commission shall hold the first meeting.

24 (f) MEETINGS.—The Commission shall meet at the

25 call of the Chairperson.
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1 (g) QUORUM.—A majority of the members of the

2 Commission shall constitute a quorum for conducting

3 business, but a lesser number of members may hold hear4 ings.

5 (h) CHAIR.—The President shall designate 1 member

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

7 the Commission.

8 (i) RULES AND PROCEDURES.—The Commission

9 shall adopt rules and procedures to govern the proceedings

10 of the Commission.

11 SEC. 202. DUTIES OF THE COMMISSION.

12 (a) STUDY.—

13 (1) IN GENERAL.—The Commission shall con14 duct a thorough study of all matters relating to the

15 administration of the death penalty to determine

16 whether the administration of the death penalty

17 comports with constitutional principles and require18 ments of fairness, justice, equality, and due process.

19 (2) MATTERS STUDIED.—The matters studied

20 by the Commission shall include the following:

21 (A) Racial disparities in capital charging,

22 prosecuting, and sentencing decisions.

23 (B) Disproportionality in capital charging,

24 prosecuting, and sentencing decisions based on

25 geographic location and income status of de-
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1 fendants or any other factor resulting in such

2 disproportionality.

3 (C) Adequacy of representation of capital

4 defendants, including consideration of the

5 American Bar Association ‘‘Guidelines for the

6 Appointment and Performance of Counsel in

7 Death Penalty Cases’’ (adopted February 1989)

8 and American Bar Association policies that are

9 intended to encourage competency of counsel in

10 capital cases (adopted February 1979, Feb11 ruary 1988, February 1990, and August 1996).

12 (D) Whether innocent persons have been

13 sentenced to death and the reasons these

14 wrongful convictions have occurred.

15 (E) Whether the Federal Government

16 should seek the death penalty in a State with

17 no death penalty.

18 (F) Whether courts are adequately exer19 cising independent judgment on the merits of

20 constitutional claims in State post-conviction

21 and Federal habeas corpus proceedings.

22 (G) Whether mentally retarded persons

23 and persons who were under the age of 18 at

24 the time of their offenses should be sentenced
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1 to death after conviction of death-eligible of2 fenses.

3 (H) Procedures to ensure that persons sen4 tenced to death have access to forensic evidence

5 and modern testing of forensic evidence, includ6 ing DNA testing, when modern testing could

7 result in new evidence of innocence.

8 (I) Any other law or procedure to ensure

9 that death penalty cases are administered fairly

10 and impartially, in accordance with the Con11 stitution.

12 (b) GUIDELINES AND PROCEDURES.—

13 (1) IN GENERAL.—Based on the study con14 ducted under subsection (a), the Commission shall

15 establish guidelines and procedures for the adminis16 tration of the death penalty consistent with para17 graph (2).

18 (2) INTENT OF GUIDELINES AND PROCE19 DURES.—The guidelines and procedures required by

20 this subsection shall—

21 (A) ensure that the death penalty cases are

22 administered fairly and impartially, in accord23 ance with due process;

24 (B) minimize the risk that innocent per25 sons may be executed; and
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1 (C) ensure that the death penalty is not

2 administered in a racially discriminatory man3 ner.

4 (c) REPORT.—

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

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

7 Commission shall submit to the President, the Attor8 ney General, and the Congress a preliminary report,

9 which shall contain a preliminary statement of find10 ings and conclusions.

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

12 after the date of enactment of this Act, the Commis13 sion shall submit a report to the President, the At14 torney General, and the Congress which shall con15 tain a detailed statement of the findings and conclu16 sions of the Commission, together with the rec17 ommendations of the Commission for legislation and

18 administrative actions that implement the guidelines

19 and procedures that the Commission considers ap20 propriate.

21 SEC. 203. POWERS OF THE COMMISSION.

22 (a) INFORMATION FROM FEDERAL AND STATE

23 AGENCIES.—

24 (1) IN GENERAL.—The Commission may secure

25 directly from any Federal or State department or
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1 agency information that the Commission considers

2 necessary to carry out the provisions of this title.

3 (2) FURNISHING OF INFORMATION.—Upon a

4 request of the Chairperson of the Commission, the

5 head of any Federal or State department or agency

6 shall furnish the information requested by the Chair7 person to the Commission.

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

9 the United States mails in the same manner and under

10 the same conditions as other departments and agencies of

11 the Federal Government.

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

13 dispose of gifts or donations of services or property.

14 (d) HEARINGS.—The Commission or, at the direction

15 of the Commission, any subcommittee or member of the

16 Commission, may, for the purpose of carrying out the pro17 visions of this title—

18 (1) hold hearings, sit and act at times and

19 places, take testimony, receive evidence, and admin20 ister oaths that the Commission, subcommittee, or

21 member considers advisable; and

22 (2) require, by subpoena or otherwise, the at23 tendance and testimony of witnesses and the produc24 tion of books, records, correspondence, memoranda,

25 papers, documents, tapes, and materials that the
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1 Commission, subcommittee, or member considers ad2 visable.

3 (e) ISSUANCE AND ENFORCEMENT OF SUB4 POENAS.—

5 (1) ISSUANCE.—Subpoenas issued pursuant to

6 subsection (d)—

7 (A) shall bear the signature of the Chair8 person of the Commission; and

9 (B) shall be served by any person or class

10 of persons designated by the Chairperson for

11 that purpose.

12 (2) ENFORCEMENT.—

13 (A) IN GENERAL.—In the case of contu14 macy or failure to obey a subpoena issued

15 under subsection (d), the district court of the

16 United States for the judicial district in which

17 the subpoenaed person resides, is served, or

18 may be found, may issue an order requiring

19 that person to appear at any designated place

20 to testify or to produce documentary or other

21 evidence.

22 (B) CONTEMPT.—Any failure to obey a

23 court order issued under subparagraph (A) may

24 be punished by the court as a contempt.
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1 (3) TESTIMONY OF PERSONS IN CUSTODY.—A

2 court of the United States within the jurisdiction in

3 which testimony of a person held in custody is

4 sought by the Commission or within the jurisdiction

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

6 application by the Attorney General, issue a writ of

7 habeas corpus ad testificandum requiring the custo8 dian to produce such person before the Commission,

9 or before a member of the Commission or a member

10 of the staff of the Commission designated by the

11 Commission for such purpose.

12 (f) WITNESS ALLOWANCES AND FEES.—

13 (1) IN GENERAL.—The provisions of section

14 1821 of title 28, United States Code, shall apply to

15 witnesses requested or subpoenaed to appear at any

16 hearing of the Commission.

17 (2) TRAVEL EXPENSES.—The per diem and

18 mileage allowances for witnesses shall be paid from

19 funds available to pay the expenses of the Commis20 sion.

21 SEC. 204. COMMISSION PERSONNEL MATTERS.

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

23 Commission shall serve without compensation for the serv24 ices of the member to the Commission.
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1 (b) TRAVEL EXPENSES.—The members of the Com2 mission shall be allowed travel expenses, including per

3 diem in lieu of subsistence, at rates authorized for employ4 ees of agencies under subchapter I of chapter 57 of title

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

6 regular places of business in the performance of services

7 for the Commission.

8 (c) STAFF.—

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

10 Commission may, without regard to the civil service

11 laws and regulations, appoint and terminate an exec12 utive director and such other additional personnel as

13 may be necessary to enable the Commission to per14 form the duties of the Commission.

15 (2) EXECUTIVE DIRECTOR.—The employment

16 of an executive director shall be subject to confirma17 tion by the Commission.

18 (3) COMPENSATION.—The Chairperson of the

19 Commission may fix the compensation of the execu20 tive director and other personnel without regard to

21 the provisions of chapter 51 and subchapter III of

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

23 to classification of positions and General Schedule

24 pay rates, except that the rate of pay for the execu25 tive director and other personnel may not exceed the
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1 rate payable for level V of the Executive Schedule

2 under section 5316 of title 5.

3 (d) DETAIL OF GOVERNMENT EMPLOYEES.—Any

4 Federal Government employee may be detailed to the

5 Commission without reimbursement, and the detail shall

6 be without interruption or loss of civil service status or

7 privilege.

8 (e) PROCUREMENT OF TEMPORARY AND INTERMIT9 TENT SERVICES.—The Chairperson of the Commission

10 may procure temporary and intermittent services under

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

12 for individuals which do not exceed the daily equivalent

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

14 the Executive Schedule under section 5316 of title 5.

15 SEC. 205. TERMINATION OF THE COMMISSION.

16 The Commission shall terminate 90 days after the

17 date on which the Commission submits its report under

18 section 202.

19 SEC. 206. FUNDING.

20 (a) IN GENERAL.—The Commission may expend an

21 amount not to exceed $850,000, as provided by subsection

22 (b), to carry out this title.
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1 (b) AVAILABILITY.—Sums appropriated to the De2 partment of Justice shall be made available to carry out

3 this title.

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