IB
Union Calendar No. 259
103D CONGRESS
2D SESSION
H. R. 4035
[Report No. 103–467]
To establish constitutional procedures for the imposition of the death penalty.
IN THE HOUSE OF REPRESENTATIVES
MARCH 15, 1994
Mr. EDWARDS of California (for himself and Mr. SCHUMER) introduced the
following bill; which was referred to the Committee on the Judiciary
MARCH 25, 1994
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 March 15, 1994]
A BILL
To establish constitutional procedures for the imposition of
the death penalty.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. CONSTITUTIONAL PROCEDURES FOR THE IM-
POSITION OF THE SENTENCE OF DEATH.
Part II of title 18 of the United States Code is amend-
ed by adding the following new chapter after chapter 227:
‘‘CHAPTER 228—DEATH SENTENCE
‘‘Sec.
‘‘3591. Sentence of death.
‘‘3592. Mitigating and aggravating factors to be considered in determining wheth-
er a sentence of death is justified.
‘‘3593. Special hearing to determine whether a sentence of death is justified.
‘‘3594. Imposition of a sentence of death.
‘‘3595. Review of a sentence of death.
‘‘3596. Implementation of a sentence of death.
‘‘3597. Use of State facilities.
‘‘3598. Special provisions for Indian country.
‘‘§ 3591. Sentence of death
‘‘A defendant who has been found guilty of—
‘‘(1) an offense described in section 794 or sec-
tion 2381 of this title; or
‘‘(2) any other offense for which a sentence of
death is provided, if the defendant, as determined be-
yond a reasonable doubt at the hearing under section
3593—
‘‘(A) intentionally killed the victim;
‘‘(B) intentionally inflicted serious bodily
injury that resulted in the death of the victim;
‘‘(C) intentionally participated in an act,
contemplating that the life of a person would be
taken or intending that lethal force would be
used in connection with a person, other than one
of the participants in the offense, and the victim
died as a direct result of the act; or
‘‘(D) intentionally and specifically engaged
in an act of violence, knowing that the act cre-
ated a grave risk of death to a person, other than
one of the participants in the offense, such that
participation in the act constituted a reckless
disregard for human life and the victim died as
a direct result of the act,
shall be sentenced to death if, after consideration of the fac-
tors set forth in section 3592 in the course of a hearing
held pursuant to section 3593, it is determined that imposi-
tion of a sentence of death is justified, except that no person
may be sentenced to death who was less than 18 years of
age at the time of the offense.
‘‘§ 3592. Mitigating and aggravating factors to be con-
sidered in determining whether a sen-
tence of death is justified
‘‘(a) MITIGATING FACTORS.—In determining whether
a sentence of death is to be imposed on a defendant, the
finder of fact shall consider any mitigating factor, includ-
ing the following:
‘‘(1) IMPAIRED CAPACITY.—The defendant’s ca-
pacity to appreciate the wrongfulness of the defend-
ant’s conduct or to conform conduct to the require-
ments of law was significantly impaired, regardless of
whether the capacity was so impaired as to constitute
a defense to the charge.
‘‘(2) DURESS.—The defendant was under un-
usual and substantial duress, regardless of whether
the duress was of such a degree as to constitute a de-
fense to the charge.
‘‘(3) MINOR PARTICIPATION.—The defendant is
punishable as a principal (as defined in section 2 of
title 18 of the United States Code) in the offense,
which was committed by another, but the defendant’s
participation was relatively minor, regardless of
whether the participation was so minor as to con-
stitute a defense to the charge.
‘‘(4) EQUALLY
CULPABLE
DEFENDANTS.—An-
other defendant or defendants, equally culpable in the
crime, will not be punished by death.
‘‘(5) NO PRIOR CRIMINAL RECORD.—The defend-
ant did not have a significant prior history of other
criminal conduct.
‘‘(6) DISTURBANCE.—The defendant committed
the offense under severe mental or emotional disturb-
ance.
‘‘(7) VICTIM’S CONSENT.—The victim consented
to the criminal conduct that resulted in the victim’s
death.
‘‘(8) OTHER FACTORS.—Other factors in the de-
fendant’s background, record, or character or any
other circumstance of the offense that mitigate against
imposition of the death sentence.
‘‘(b) AGGRAVATING FACTORS
FOR ESPIONAGE
AND
TREASON.—In determining whether a sentence of death is
justified for an offense described in section 3591(1), the
jury, or if there is no jury, the court, shall consider each
of the following aggravating factors for which notice has
been given and determine which, if any, exist:
‘‘(1) PRIOR ESPIONAGE OR TREASON OFFENSE.—
The defendant has previously been convicted of an-
other offense involving espionage or treason for which
a sentence of either life imprisonment or death was
authorized by law.
‘‘(2) GRAVE RISK TO NATIONAL SECURITY.—In
the commission of the offense the defendant knowingly
created a grave risk of substantial danger to the na-
tional security.
‘‘(3) GRAVE RISK OF DEATH.—In the commis-
sion of the offense the defendant knowingly created a
grave risk of death to another person.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor for which notice has
been given exists.
‘‘(c) AGGRAVATING FACTORS FOR HOMICIDE.—In de-
termining whether a sentence of death is justified for an
offense described in section 3591(2), the jury, or if there
is no jury, the court, shall consider each of the following
aggravating factors for which notice has been given and de-
termine which, if any, exist:
‘‘(1) DEATH DURING COMMISSION OF ANOTHER
CRIME.—The death, or injury resulting in death, oc-
curred during the commission or attempted commis-
sion of, or during the immediate flight from the com-
mission of, an offense under section 32 (destruction of
aircraft or aircraft facilities), section 33 (destruction
of motor vehicles or motor vehicle facilities), section
36 (violence at international airports), section 351
(violence against Members of Congress, Cabinet offi-
cers, or Supreme Court Justices), an offense under
section 751 (prisoners in custody of institution or of-
ficer), section 794 (gathering or delivering defense in-
formation to aid foreign government), section 844(d)
(transportation of explosives in interstate commerce
for certain purposes), section 844(f) (destruction of
Government property by explosives), section 1118
(prisoners serving life term), section 1201 (kidnap-
ping), section 844(i) (destruction of property affecting
interstate commerce by explosives), section 1116 (kill-
ing or attempted killing of diplomats), section 1203
(hostage taking), section 1992 (wrecking trains), sec-
tion 2280 (maritime violence), section 2281 (mari-
time platform violence), section 2332 (terrorist acts
abroad against United States nationals), section 2339
(use of weapons of mass destruction), or section 2381
(treason) of this title, or section 902 (i) or (n) of the
Federal Aviation Act of 1958 (49 U.S.C. 1472 (i) or
(n)) (aircraft piracy).
‘‘(2) PREVIOUS CONVICTION OF VIOLENT FELONY
INVOLVING FIREARM.—For any offense, other than an
offense for which a sentence of death is sought on the
basis of section 924(c) of this title, as amended by this
Act, the defendant has previously been convicted of a
Federal or State offense punishable by a term of im-
prisonment of more than one year, involving the use
or attempted or threatened use of a firearm, as de-
fined in section 921 of this title, against another
person.
‘‘(3) PREVIOUS
CONVICTION
OF
OFFENSE
FOR
WHICH A SENTENCE OF DEATH OR LIFE IMPRISON-
MENT
WAS
AUTHORIZED.—The defendant has pre-
viously been convicted of another Federal or State of-
fense resulting in the death of a person, for which a
sentence of life imprisonment or a sentence of death
was authorized by statute.
‘‘(4) PREVIOUS CONVICTION OF OTHER SERIOUS
OFFENSES.—The defendant has previously been con-
victed of two or more Federal or State offenses, pun-
ishable by a term of imprisonment of more than one
year, committed on different occasions, involving the
infliction of, or attempted infliction of, serious bodily
injury or death upon another person.
‘‘(5) GRAVE
RISK
OF
DEATH
TO
ADDITIONAL
PERSONS.—The defendant, in the commission of the
offense, or in escaping apprehension for the violation
of the offense, knowingly created a grave risk of death
to one or more persons in addition to the victim of
the offense.
‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER
OF COMMITTING OFFENSE.—The defendant committed
the offense in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical
abuse to the victim.
‘‘(7) PROCUREMENT OF OFFENSE BY PAYMENT.—
The defendant procured the commission of the offense
by payment, or promise of payment, of anything of
pecuniary value.
‘‘(8) PECUNIARY GAIN.—The defendant commit-
ted the offense as consideration for the receipt, or in
the expectation of the receipt, of anything of pecu-
niary value.
‘‘(9) 
SUBSTANTIAL
PLANNING
AND
PREMEDITATION.—The defendant committed the of-
fense after substantial planning and premeditation to
cause the death of a person or commit an act of
terrorism.
‘‘(10) CONVICTION FOR TWO FELONY DRUG OF-
FENSES.—The defendant has previously been con-
victed of two or more State or Federal offenses pun-
ishable by a term of imprisonment of more than one
year, committed on different occasions, involving the
distribution of a controlled substance.
‘‘(11) VULNERABILITY OF VICTIM.—The victim
was particularly vulnerable due to old age, youth, or
infirmity.
‘‘(12) CONVICTION FOR SERIOUS FEDERAL DRUG
OFFENSES.—The defendant had previously been con-
victed of violating title II or title III of the Controlled
Substances Act for which a sentence of 5 or more
years may be imposed or had previously been con-
victed of engaging in a continuing criminal enter-
prise.
‘‘(13) CONTINUING
CRIMINAL
ENTERPRISE
IN-
VOLVING
DRUG
SALES
TO
MINORS.—The defendant
committed the offense in the course of engaging in a
continuing criminal enterprise in violation of section
408(c) of the Controlled Substances Act and that vio-
lation involved the distribution of drugs to persons
under the age of 21 in violation of section 418 of such
Act.
‘‘(14) HIGH PUBLIC OFFICIALS.—The defendant
committed the offense against—
‘‘(A) the President of the United States, the
President-elect, the Vice President, the Vice-
President-elect, the Vice-President-designate, or,
if there is no Vice President, the officer next in
order of succession to the office of the President
of the United States, or any person who is acting
as President under the Constitution and laws of
the United States;
‘‘(B) a Chief of State, head of government,
or the political equivalent, of a foreign nation;
‘‘(C) a foreign official listed in section
1116(b)(3)(A) of this title, if the official is in the
United States on official business; or
‘‘(D) a Federal public servant who is a
judge, a law enforcement officer, or an employee
of a United States penal or correctional institu-
tion—
‘‘(i) while he or she is engaged in the
performance of his or her official duties;
‘‘(ii) because of the performance of his
or her official duties; or
‘‘(iii) because of his or her status as a
public servant.
For purposes of this subparagraph, a ‘law en-
forcement officer’ is a public servant authorized
by law or by a Government agency or Congress
to conduct or engage in the prevention, inves-
tigation, or prosecution or adjudication of an of-
fense, and includes those engaged in corrections,
parole, or probation functions.
‘‘(15) PRIOR CONVICTION OF SEXUAL ASSAULT
OR CHILD MOLESTATION.—In the case of an offense
under chapter 109A (sexual abuse) or chapter 110
(sexual abuse of children), the defendant has pre-
viously been convicted of a crime of sexual assault or
crime of child molestation.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor for which notice has
been given exists.
‘‘§ 3593. Special hearing to determine whether a sen-
tence of death is justified
‘‘(a) NOTICE BY THE GOVERNMENT.—If, in a case in-
volving an offense described in section 3591, the attorney
for the government believes that the circumstances of the of-
fense are such that a sentence of death is justified under
this chapter, the attorney shall, a reasonable time before the
trial or before acceptance by the court of a plea of guilty,
sign and file with the court, and serve on the defendant,
a notice—
‘‘(1) stating that the government believes that the
circumstances of the offense are such that, if the de-
fendant is convicted, a sentence of death is justified
under this chapter and that the government will seek
the sentence of death; and
‘‘(2) setting forth the aggravating factor or fac-
tors that the government, if the defendant is convicted,
proposes to prove as justifying a sentence of death.
The factors for which notice is provided under this sub-
section may include factors concerning the effect of the of-
fense on the victim and the victim’s family, and may in-
clude oral testimony, a victim impact statement that identi-
fies the victim of the offense and the extent and scope of
the injury and loss suffered by the victim and the victim’s
family, and any other relevant information. The court may
permit the notice to include any aggravating factor that
is not an element of the underlying offense. The court may
also permit the attorney for the government to amend the
notice upon a showing of good cause.
‘‘(b) HEARING BEFORE A COURT OR JURY.—If the at-
torney for the government has filed a notice as required
under subsection (a) and the defendant is found guilty of
or pleads guilty to an offense described in section 3591, the
judge who presided at the trial or before whom the guilty
plea was entered, or another judge if that judge is unavail-
able, shall conduct a separate sentencing hearing to deter-
mine the punishment to be imposed. The hearing shall be
conducted—
‘‘(1) before the jury that determined the defend-
ant’s guilt;
‘‘(2) before a jury impaneled for the purpose of
the hearing if—
‘‘(A) the defendant was convicted upon a
plea of guilty;
‘‘(B) the defendant was convicted after a
trial before the court sitting without a jury;
‘‘(C) the jury that determined the defend-
ant’s guilt was discharged for good cause; or
‘‘(D) after initial imposition of a sentence
under this section, reconsideration of the sentence
under this section is necessary; or
‘‘(3) before the court alone, upon the motion of
the defendant.
A jury impaneled pursuant to paragraph (2) shall consist
of 12 members, unless, at any time before the conclusion
of the hearing, the parties stipulate, with the approval of
the court, that it shall consist of a lesser number.
‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC-
TORS.—Notwithstanding rule 32(c) of the Federal Rules of
Criminal Procedure, when a defendant is found guilty or
pleads guilty to an offense under section 3591, no
presentence report shall be prepared. At the sentencing hear-
ing, information may be presented as to any matter rel-
evant to the sentence, including any mitigating or aggra-
vating factor permitted or required to be considered under
section 3592. Information presented may include the trial
transcript and exhibits if the hearing is held before a jury
or judge not present during the trial. The defendant may
present any information relevant to a mitigating factor.
The government may present any information relevant to
an aggravating factor for which notice has been provided
under subsection (a). The government and the defendant
shall be permitted to rebut any information received at the
hearing, and shall be given fair opportunity to present ar-
gument as to the adequacy of the information to establish
the existence of any aggravating or mitigating factor, and
as to the appropriateness in the case of imposing a sentence
of death. The government shall open the argument. The de-
fendant shall be permitted to reply. The government shall
then be permitted to reply in rebuttal. The burden of estab-
lishing the existence of any aggravating factor is on the gov-
ernment, and is not satisfied unless the existence of such
a factor is established beyond a reasonable doubt. The bur-
den of establishing the existence of any mitigating factor
is on the defendant, and is not satisfied unless the existence
of such a factor is established by a preponderance of the
information.
‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or if
there is no jury, the court, shall consider all the information
received during the hearing. It shall return special findings
identifying any aggravating factor or factors set forth in
section 3592 found to exist and any other aggravating fac-
tor for which notice has been provided under subsection (a)
found to exist. A finding with respect to a mitigating factor
may be made by 1 or more members of the jury, and any
member of the jury who finds the existence of a mitigating
factor may consider such factor established for purposes of
this section regardless of the number of jurors who concur
that the factor has been established. A finding with respect
to any aggravating factor must be unanimous. If no aggra-
vating factor set forth in section 3592 is found to exist, the
court shall impose a sentence other than death authorized
by law.
‘‘(e) RETURN OF A FINDING CONCERNING A SENTENCE
OF DEATH.—If, in the case of—
‘‘(1) an offense described in section 3591(1), an
aggravating factor required to be considered under
section 3592(b) is found to exist; or
‘‘(2) an offense described in section 3591(2), an
aggravating factor required to be considered under
section 3592(c) is found to exist,
the jury, or if there is no jury, the court, shall consider
whether all the aggravating factor or factors found to exist
sufficiently outweigh all the mitigating factor or factors
found to exist to justify a sentence of death, or, in the ab-
sence of a mitigating factor, whether the aggravating factor
or factors alone are sufficient to justify a sentence of death.
Based upon this consideration, the jury by unanimous vote,
or if there is no jury, the court, shall recommend whether
the defendant should be sentenced to death, to life imprison-
ment without possibility of release, or to some other lesser
sentence. The jury or the court, if there is no jury, regardless
of its findings with respect to aggravating and mitigating
factors, is never required to impose a death sentence and
the jury shall be so instructed.
‘‘(f) SPECIAL PRECAUTION TO ENSURE AGAINST DIS-
CRIMINATION.—In a hearing held before a jury, the court,
prior to the return of a finding under subsection (e), shall
instruct the jury that, in considering whether a sentence
of death is justified, it shall not consider the race, color,
religious beliefs, national origin, or sex of the defendant or
of any victim and that the jury is not to recommend a sen-
tence of death unless it has concluded that it would rec-
ommend a sentence of death for the crime in question no
matter what the race, color, religious beliefs, national ori-
gin, or sex of the defendant or of any victim may be. The
jury, upon return of a finding under subsection (e), shall
also return to the court a certificate, signed by each juror,
that consideration of the race, color, religious beliefs, na-
tional origin, or sex of the defendant or any victim was
not involved in reaching his or her individual decision and
that the individual juror would have made the same rec-
ommendation regarding a sentence for the crime in question
no matter what the race, color, religious beliefs, national
origin, or sex of the defendant or any victim may be.
‘‘§ 3594. Imposition of a sentence of death
‘‘Upon a recommendation under section 3593(e) that
the defendant should be sentenced to death or life imprison-
ment without possibility of release, the court shall sentence
the defendant accordingly. Otherwise, the court shall impose
any lesser sentence that is authorized by law. Notwithstand-
ing any other provision of law, if the maximum term of
imprisonment for the offense is life imprisonment, the court
may impose a sentence of life imprisonment without possi-
bility of release.
‘‘§ 3595. Review of a sentence of death
‘‘(a) APPEAL.—In a case in which a sentence of death
is imposed, the sentence shall be subject to review by the
court of appeals upon appeal by the defendant. Notice of
appeal must be filed within the time specified for the filing
of a notice of appeal. An appeal under this section may
be consolidated with an appeal of the judgment of convic-
tion and shall have priority over all other cases.
‘‘(b) REVIEW.—The court of appeals shall review the
entire record in the case, including—
‘‘(1) the evidence submitted during the trial;
‘‘(2) the information submitted during the sen-
tencing hearing;
‘‘(3) the procedures employed in the sentencing
hearing; and
‘‘(4) the special findings returned under section
3593(d).
‘‘(c) DECISION AND DISPOSITION.—
‘‘(1) The court of appeals shall address all sub-
stantive and procedural issues raised on the appeal of
a sentence of death, and shall consider whether the
sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor and
whether the evidence supports the special finding of
the existence of an aggravating factor required to be
considered under section 3592.
‘‘(2) Whenever the court of appeals finds that—
‘‘(A) the sentence of death was imposed
under the influence of passion, prejudice, or any
other arbitrary factor;
‘‘(B) the admissible evidence and informa-
tion adduced does not support the special finding
of the existence of the required aggravating
factor; or
‘‘(C) the proceedings involved any other
legal error requiring reversal of the sentence that
was properly preserved for appeal under the
rules of criminal procedure,
the court shall remand the case for reconsideration
under section 3593 or imposition of a sentence other
than death.
‘‘(3) The court of appeals shall state in writing
the reasons for its disposition of an appeal of a sen-
tence of death under this section.
‘‘(4) The sentence shall be affirmed if the court
finds that a remaining aggravating factor found to
exist is one allowed under section 3592 of this title
and that the remaining aggravating factor or factors
found to exist sufficiently outweigh any mitigating
factors found to exist.
‘‘§ 3596. Implementation of a sentence of death
‘‘(a) IN GENERAL.—A person who has been sentenced
to death pursuant to the provisions of this chapter shall
be committed to the custody of the Attorney General until
exhaustion of the procedures for appeal of the judgment of
conviction and for review of the sentence. When the sentence
is to be implemented, the Attorney General shall release the
person sentenced to death to the custody of a United States
marshal, who shall supervise implementation of the sentence
in the manner prescribed by the law of the State in which
the sentence is imposed. If the law of such State does not
provide for implementation of a sentence of death, the court
shall designate another State, the law of which does provide
for the implementation of a sentence of death, and the sen-
tence shall be implemented in the latter State in the manner
prescribed by such law.
‘‘(b) PREGNANT WOMAN.—A sentence of death shall not
be carried out upon a woman while she is pregnant.
‘‘(c) MENTAL CAPACITY.—A sentence of death shall not
be carried out upon a person who is mentally retarded. A
sentence of death shall not be carried out upon a person
who, as a result of mental disability, lacks the mental ca-
pacity to understand the death penalty and why it was im-
posed on that person.
‘‘§ 3597. Use of State facilities
‘‘(a) IN GENERAL.—A United States marshal charged
with supervising the implementation of a sentence of death
may use appropriate State or local facilities for the pur-
pose, may use the services of an appropriate State or local
official or of a person such an official employs for the pur-
pose, and shall pay the costs thereof in an amount approved
by the Attorney General.
‘‘(b) EXCUSE OF AN EMPLOYEE ON MORAL OR RELI-
GIOUS GROUNDS.—No employee of any State department
of corrections, the United States Department of Justice, the
Federal Bureau of Prisons, or the United States Marshals
Service, and no employee providing services to that depart-
ment, bureau, or service under contract shall be required,
as a condition of that employment or contractual obliga-
tion, to be in attendance at or to participate in any pros-
ecution or execution under this section if such participation
is contrary to the moral or religious convictions of the em-
ployee. For purposes of this subsection, the term ‘participa-
tion’ includes personal preparation of the condemned indi-
vidual and the apparatus used for execution and super-
vision of the activities of other personnel in carrying out
such activities.
‘‘§ 3598. Special provisions for Indian country
‘‘Notwithstanding sections 1152 and 1153, no person
subject to the criminal jurisdiction of an Indian tribal gov-
ernment shall be subject to a capital sentence under this
chapter for any offense the Federal jurisdiction for which
is predicated solely on Indian country as defined in section
1151 of this title, and which has occurred within the bound-
aries of such Indian country, unless the governing body of
the tribe has elected that this chapter have effect over land
and persons subject to its criminal jurisdiction.’’.
(b) AMENDMENT OF CHAPTER ANALYSIS.—The chap-
ter analysis of part II of title 18, United States Code, is
amended by adding the following new item after the item
relating to chapter 227:
‘‘228. Death sentence .............................................................................. 3591’’.
HR 4035 RH——2