I

103D CONGRESS

1ST SESSION H. R. 267

To amend chapter 47 of title 10, United States Code (the Uniform Code

of Military Justice), to establish procedures for the adjudication by

courts-martial of sentences of capital punishment.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 5, 1993

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

Committee on Armed Services

A BILL

To amend chapter 47 of title 10, United States Code (the

Uniform Code of Military Justice), to establish procedures for the adjudication by courts-martial of sentences

of capital punishment.

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

3 SECTION 1. PROCEDURES FOR ADJUDICATION OF CAPITAL

4 PUNISHMENT BY COURTS-MARTIAL.

5 (a) NEW UCMJ ARTICLE.—(1)(A) Chapter 47 of

6 title 10, United States Code (the Uniform Code of Military

7 Justice), is amended by inserting after section 852 (article

8 52) the following new section (article):
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1 ‘‘§ 852a. Art. 52a. Procedures for adjudging capital

2 punishment

3 ‘‘(a) No person may be sentenced by a court-martial

4 to suffer death except as provided in this section (article).

5 ‘‘(b) No person may be sentenced by a court-martial

6 to suffer death unless convicted by the concurrence of all

7 the members of the court-martial present at the time the

8 vote is taken of an offense in this chapter expressly made

9 punishable by death.

10 ‘‘(c) If the trial counsel at a court-martial of an of11 fense under this chapter expressly made punishable by

12 death intends to prove at the trial any aggravating factor

13 set out in subsection (e), the trial counsel shall provide

14 the accused before arraignment with written notice of each

15 such aggravating factor the trial counsel intends to prove.

16 However, failure to provide such notice of an aggravating

17 factor set out in subsection (e) before arraignment shall

18 not bar later notice and proof of that aggravating factor

19 unless the accused demonstrates—

20 ‘‘(1) that the failure resulted in specific preju21 dice to the accused; and

22 ‘‘(2) that a continuance or recess is not an ade23 quate remedy for such failure.

24 ‘‘(d)(1) A person may not be sentenced to death by

25 a court-martial unless—
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1 ‘‘(A) the members of the court-martial unani2 mously find at least one of the aggravating factors

3 set out in subsection (e);

4 ‘‘(B) notice of that aggravating factor was pro5 vided in accordance with subsection (c); and

6 ‘‘(C) each member of the court-martial concurs

7 in finding that any extenuating or mitigating cir8 cumstances are substantially outweighed by aggra9 vating circumstances, including the aggravating fac10 tors set out in subsection (e).

11 ‘‘(2) Findings by the members of a court-martial

12 under paragraph (1) may be based on—

13 ‘‘(A) evidence introduced on the issue of guilt

14 or innocence;

15 ‘‘(B) evidence introduced during the sentencing

16 proceeding; or

17 ‘‘(C) all such evidence.

18 ‘‘(3) The accused shall be given broad latitude to

19 present matters in extenuation and mitigation.

20 ‘‘(e)(1) A sentence of death may be adjudged by a

21 court-martial only if the members of the court-martial

22 unanimously find, beyond a reasonable doubt, one or more

23 of the following aggravating factors:

24 ‘‘(A) That the offense was committed before or

25 in the presence of the enemy (except that this sub-
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1 paragraph does not apply in the case of an offense

2 under section 918 or 920 of this title (article 118 or

3 120)).

4 ‘‘(B) That, in committing the offense, the ac5 cused intended—

6 ‘‘(i) to cause a grave risk of substantial

7 damage to the national security; or

8 ‘‘(ii) to cause a grave risk of substantial

9 damage to a mission, system, or function of the

10 United States, but only if substantial damage

11 to the national security of the United States

12 would have resulted had the intended damage

13 been effected.

14 ‘‘(C) That the offense caused substantial dam15 age to the national security of the United States,

16 whether or not the accused intended such damage

17 (except that this subparagraph does not apply in the

18 case of an offense under section 918 or 920 of this

19 title (article 118 or 120)).

20 ‘‘(D) That the accused knowingly created a

21 grave risk of death to one or more persons in addi22 tion to the victim of the offense (except that this

23 factor does not apply in the case of an offense under

24 section 920 of this title (article 120)).
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1 ‘‘(E) That the accused committed the offense

2 with the intent to avoid hazardous duty.

3 ‘‘(F) That, only in the case of an offense under

4 section 918 or 920 of this title (article 118 or 120),

5 the offense was committed in time of war and in ter6 ritory in which—

7 ‘‘(i) the United States or an ally of the

8 United States was then an occupying power; or

9 ‘‘(ii) the armed forces of the United States

10 were then engaged in active hostilities.

11 ‘‘(G) That, only in the case of an offense under

12 section 918(l) of this title (article 118(l)), any of the

13 following is applicable:

14 ‘‘(i) The accused was serving a sentence of

15 confinement for 30 years or more or for life at

16 the time of the offense.

17 ‘‘(ii) The offense was committed while the

18 accused—

19 ‘‘(I) was engaged in the commission

20 or attempted commission of robbery, rape,

21 aggravated arson, sodomy, burglary, kid22 napping, mutiny, sedition, or piracy of an

23 aircraft or vessel; or
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1 ‘‘(II) was engaged in flight or at2 tempted flight after the commission or at3 tempted commission of any such offense.

4 ‘‘(iii) The offense was committed for the

5 purpose of receiving money or a thing of value.

6 ‘‘(iv) The accused procured another by

7 means of compulsion, coercion, or a promise of

8 an advantage, a service, or a thing of value to

9 commit the offense.

10 ‘‘(v) The offense was committed with the

11 intent to avoid or to prevent lawful apprehen12 sion or effect an escape from custody or con13 finement.

14 ‘‘(vi) The victim of the offense was—

15 ‘‘(I) the President, the President16 elect, the Vice President (or, if there was

17 no Vice President, the officer next in the

18 order of succession to the office of Presi19 dent), the Vice President-elect, or an indi20 vidual who is acting as President under the

21 Constitution and laws of the United

22 States;

23 ‘‘(II) a Member of Congress (includ24 ing a Delegate to, or Resident Commis-
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1 sioner in, the Congress) or Member-of2 Congress elect;

3 ‘‘(III) a justice or judge of the United

4 States;

5 ‘‘(IV) a chief of state or head of gov6 ernment (or the political equivalent) of a

7 foreign nation; or

8 ‘‘(V) a foreign official (as such term is

9 defined in section 1116(b)(3)(A) of title

10 18), if the official was in the United States

11 or on military property of the United

12 States on official business at the time of

13 the offense.

14 ‘‘(vii) The accused at the time of the of15 fense knew that the victim was any of the fol16 lowing in the execution of such person’s office:

17 ‘‘(I) A commissioned, warrant, non18 commissioned, or petty officer of the

19 armed forces.

20 ‘‘(II) A member of a law enforcement

21 or security activity or agency, including

22 correctional custody personnel.

23 ‘‘(III) A firefighter.

24 ‘‘(viii) The offense was committed with in25 tent to obstruct justice.
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1 ‘‘(ix) The offense was preceded by the in2 tentional infliction of substantial physical harm

3 or prolonged, substantial mental or physical

4 pain and suffering to the victim.

5 ‘‘(x) The accused has been found guilty in

6 the same case of another offense under section

7 918 of this title (article 118).

8 ‘‘(H) That, only in the case of an offense under

9 section 918(4) of this title (article 118(4)), the ac10 cused was the actual perpetrator of the killing.

11 ‘‘(I) That, only in the case of an offense under

12 section 920 of this title (article 120)—

13 ‘‘(i) the victim was under the age of 12; or

14 ‘‘(ii) the accused maimed or attempted to

15 kill the victim.

16 ‘‘(J) That, only in the case of an offense under

17 the law of war, a sentence of death is authorized

18 under the law of war for the offense.

19 ‘‘(K) That, only in the case of an offense under

20 section 904 or 906a the accused has previously been

21 convicted of this title (article 104 or 106a), of an22 other offense involving espionage or treason for

23 which either a sentence of death or a sentence of life

24 imprisonment was authorized by statute.
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1 ‘‘(L) That the offense involved such other fac2 tors as may be prescribed by the President by regu3 lation, to the extent that such factors concern the

4 national security or otherwise involve a function of

5 the armed forces related to the conduct of hostilities.

6 ‘‘(2) In this subsection, ‘national security’ means the

7 national defense and foreign relations of the United States

8 and specifically includes—

9 ‘‘(A) a military or defense advantage over any

10 foreign nation or group of nations;

11 ‘‘(B) a favorable foreign relations position; or

12 ‘‘(C) a defense posture capable of successfully

13 resisting hostile or destructive action from within or

14 without.

15 ‘‘(f) The military judge, in the presence of the ac16 cused and counsel, shall instruct the members of the

17 court-martial on—

18 ‘‘(1) such aggravating factors set forth in sub19 section (e) as may be in issue in the case;

20 ‘‘(2) the requirements and procedures under

21 this section; and

22 ‘‘(3) the requirement to consider all evidence in

23 extenuation and mitigation before they may adjudge

24 a sentence of death.
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1 ‘‘(g)(1) In closed session, before voting on a sen2 tence—

3 ‘‘(A) the members of the court-martial shall

4 vote by secret written ballot separately on each ag5 gravating factor set out in subsection (e) on which

6 they have been instructed; and

7 ‘‘(B) if one or more of the aggravating factors

8 set forth in subsection (e) is found to exist, the

9 members shall then vote by secret written ballot on

10 whether the aggravating circumstances (including

11 any aggravating factors set out in subsection (e))

12 substantially outweigh any extenuating or mitigating

13 circumstances or, in the absence of any extenuating

14 or mitigating circumstances, whether the aggravat15 ing circumstances are themselves sufficient to justify

16 a sentence of death.

17 ‘‘(2) A sentence of death may not be adjudged unless

18 each member of the court-martial concurs—

19 ‘‘(A) that, with respect to at least one aggravat20 ing factor, the existence of such factor has been

21 proved beyond a reasonable doubt; and

22 ‘‘(B) that the aggravating circumstances (in23 cluding any aggravating factors set out in subsection

24 (e)) substantially outweigh any extenuating or miti25 gating circumstances or, in the absence of any ex-
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1 tenuating or mitigating circumstances, that the ag2 gravating circumstances are themselves sufficient to

3 justify a sentence of death.

4 ‘‘(3) The members of the court-martial shall vote on

5 a sentence under section 852 of this title (article 52).

6 ‘‘(h) If a sentence of death is adjudged, the president

7 of the court-martial shall announce which aggravating fac8 tors under subsection (e) were unanimously found by the

9 members.

10 ‘‘(i) Subsections (c) through (h) do not apply with

11 respect to the sentence for an offense under section 106

12 of this title (article 106).’’.

13 (B) The table of sections at the beginning of sub14 chapter VII of such chapter is amended by inserting after

15 the item relating to section 852 (article 52) the following

16 new item:

‘‘852a. Art. 52a. Procedures for adjudging capital punishment.’’.

17 (2) Section 852(b)(1) of such title (article 52(b)(1))

18 is amended by inserting ‘‘as provided in section 852a of

19 this title (article 52a)’’ after ‘‘taken’’.

20 (b) EFFECTIVE DATE.—The amendments made by

21 subsection (a) shall take effect on the 90th day after the

22 date of the enactment of this Act and shall apply to

23 charges first preferred on or after that date.

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