I
103D CONGRESS
1ST SESSION
H. R. 696
Entitled the ‘‘Drug Kingpin Death Penalty Act’’.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 27, 1993
Mr. SOLOMON introduced the following bill; which was referred to the
Committee on the Judiciary
A BILL
Entitled the ‘‘Drug Kingpin Death Penalty Act’’.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SEC
. SHORT TITLE.
This Act may be cited as the ‘‘Drug Kingpin Death
Penalty Act’’.
SEC.
. DEATH PENALTY AUTHORIZATIONS AND PROCE-
DURES.
Title 18 of the United States Code is amended—
(1) by adding the following new chapter after
chapter 227:
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‘‘CHAPTER 228—DEATH PENALTY
‘‘Sec.
‘‘3591. Sentence of death.
‘‘3592. Factors to be considered in determining whether 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 sentence of death.
‘‘3597. Use of State facilities.
‘‘3598. Appointment of counsel.
‘‘3599. Collateral Attack on Judgment Imposing Sentence of Death.
‘‘§ 3591. Sentence of death
‘‘A defendant who has been found guilty of—
‘‘(1) an offense referred to in section 408(c)(1)
of the Controlled Substances Act (21 U.S.C.
848(c)(1)), committed as part of a continuing crimi-
nal enterprise offense under the conditions described
in subsection (b) of that section;
‘‘(2) an offense referred to in section 408(c)(1)
of the Controlled Substances Act (21 U.S.C.
848(c)(1)), committed as part of a continuing crimi-
nal enterprise offense under that section, where the
defendant is a principal administrator, organizer or
leader of such an enterprise, and the defendant, in
order to obstruct the investigation or prosecution of
the enterprise or an offense involved in the enter-
prise, attempts to kill or knowingly directs, advises,
authorizes, or assists another to attempt to kill any
public officer, juror, witness, or member of the fam-
ily or household of such a person; or
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‘‘(3) an offense constituting a felony violation of
the Controlled Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or the Maritime Drug
Law Enforcement Act (46 U.S.C. App. 1901 et
seq.), where the defendant, intending to cause death
or acting with reckless disregard for human life, en-
gages in such a violation, and the death of another
person results in the course of the violation or from
the use of the controlled substance involved in the
violation;
shall be sentenced to death if, after consideration of the
factors set forth in section 3592 in the course of a hearing
held pursuant to section 3593, it is determined that impo-
sition of a sentence of death is justified: Provided, That
no person may be sentenced to death who was less than
eighteen years of age at the time of the offense: And pro-
vided further, That if a defendant described in section
3591 (b) or (c), is not sentenced to death, said defendant
shall be sentenced to life in prison.
‘‘§ 3592. Factors to be considered in determining
whether a sentence of death is justified
‘‘(a) MITIGATING FACTORS.—In determining wheth-
er a sentence of death is justified for an offense described
in section 3591, the jury, or if there is no jury, the court,
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shall consider each of the following mitigating factors and
determine which, if any, exist:
‘‘(1) MENTAL
CAPACITY.—The defendant’s
mental capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the require-
ments of law was significantly impaired, regardless
of whether the capacity was so impaired as to con-
stitute 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
defense to the charge.
‘‘(3) PARTICIPATION IN OFFENSE MINOR.—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 constitute a defense to the charge.
The jury, or if there is no jury, the court, shall consider
whether any other aspect of the defendant’s character or
record or any other circumstance of the offense that the
defendant may proffer as a mitigating factor exists.
‘‘(b) 
AGGRAVATING
FACTORS.—In 
determining
whether a sentence of death is justified for an offense de-
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scribed in section 3591, the jury, or if there is no jury,
the court, shall consider each of the following aggravating
factors and determine which, if any, exist—
‘‘(1) 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
offense resulting in the death of a person, for which
a sentence of life imprisonment or death was author-
ized by statute.
‘‘(2) PREVIOUS CONVICTIONS OF VIOLENT OF-
FENSES.—The defendant has previously been con-
victed of two or more Federal or State offenses, each
punishable by a term of imprisonment of more than
one year, committed on different occasions, involving
the infliction of, or attempted infliction, serious bod-
ily injury or death upon another person.
‘‘(3) PREVIOUS
CONVICTIONS
OF
DRUG
OF-
FENSES.—The defendant has previously been con-
victed of two or more Federal or State offenses, each
punishable by a term of imprisonment of more than
one year, committed on different occasions, involving
the importation, manufacture, or distribution of a
controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)).
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‘‘(4) PREVIOUS
CONVICTIONS
OF
VIOLENT
DRUG
OFFENSES.—The defendant has previously
been convicted of a Federal or State offense, punish-
able by a term of imprisonment of more than one
year, involving the infliction of, or attempted inflic-
tion of, serious bodily injury or death upon another
person, and has previously been convicted of a Fed-
eral or State offense, committed on a different occa-
sion and punishable by a term of imprisonment of
more than one year, involving the importation, man-
ufacture, or distribution of a controlled substance
(as defined in section 102 of the Controlled Sub-
stances Act (21 U.S.C. 802)).
‘‘(5) SERIOUS
DRUG
FELONY
CONVICTION.—
The defendant has previously been convicted of an-
other Federal or State offense involving the manu-
facture, distribution, importation, or possession of a
controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)) for
which a sentence of five or more years of imprison-
ment was authorized by statute.
‘‘(6) USE OF FIREARM.—In committing the of-
fense, or in furtherance of a continuing criminal en-
terprise of which the offense was a part, the defend-
ant used a firearm or knowingly directed, advised,
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authorized, or assisted another to use a firearm, as
defined in section 921 of this title, to threaten, in-
timidate, assault, or injure a person.
‘‘(7) DISTRIBUTION TO PERSONS UNDER TWEN-
TY-ONE.—The offense, or a continuing criminal en-
terprise of which the offense was a part, involved a
violation of section 405 of the Controlled Substances
Act (21 U.S.C. 845) which was committed directly
by the defendant or for which the defendant would
be liable under section 2 of this title.
‘‘(8) DISTRIBUTION NEAR SCHOOLS.—The of-
fense, or a continuing criminal enterprise of which
the offense was a part, involved a violation of section
405A of the Controlled Substances Act (21 U.S.C.
845a) which was committed directly by the defend-
ant or for which the defendant would be liable under
section 2 of this title.
‘‘(9) USING MINORS IN TRAFFICKING.—The of-
fense, or a continuing criminal enterprise of which
the offense was a part, involved a violation of section
405B of the Controlled Substances Act (21 U.S.C.
845b) which was committed directly by the defend-
ant or for which the defendant would be liable under
section 2 of this title.
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‘‘(10) LETHAL ADULTERANT.—The offense in-
volved the importation, manufacture, or distribution,
of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802))
mixed with a potentially lethal adulterant, and the
defendant was aware of the presence of the
adulterant.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factors exist.
§ 3593. Special hearing to determine whether a sen-
tence of death is justified
‘‘(a) NOTICE BY THE GOVERNMENT.—Whenever the
Government intends to seek the death penalty for an of-
fense described in section 3591, the attorney for the Gov-
ernment, a reasonable time before the trial, or before ac-
ceptance by the court of a plea of guilty, or at such time
thereafter as the court may permit upon a showing of good
cause, shall sign and file with the court, and serve on the
defendant, a notice—
‘‘(1) that the Government in the event of con-
viction will seek the sentence of death; and
‘‘(2) setting forth the aggravating factor or fac-
tors enumerated in section 3592 and any other ag-
gravating factor not specifically enumerated in sec-
tion 3592, that the Government, if the defendant is
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convicted, will seek to prove as the basis for the
death penalty.
The court may permit the attorney for the government
to amend the notice upon a showing of good cause.
‘‘(b) HEARING BEFORE A COURT OR JURY.—When
the attorney for the Government has filed a notice as re-
quired under subsection (a) and the defendant is found
guilty of 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 unavailable,
shall conduct a separate sentencing hearing to determine
the punishment to be imposed. Prior to such a hearing,
no presentence report shall be prepared by the United
States Probation Service, notwithstanding the provisions
of the Federal Rules of Criminal Procedure. The hearing
shall be conducted—
‘‘(1) before the jury that determined the de-
fendant’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;
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‘‘(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 sen-
tence under the section is necessary; or
‘‘(3) before the court alone, upon motion of the
defendant and with the approval of the attorney for
the Government.
A jury impaneled pursuant to paragraph (2) shall consist
of twelve members, unless, at any time before the conclu-
sion 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.—At the hearing, information may be presented as
to—
‘‘(1) any matter relating to any mitigating fac-
tor listed in section 3592 and any other mitigating
factor; and
‘‘(2) any matter relating to any aggravating
factor listed in section 3592 for which notice has
been provided under subsection (a)(2) and (if infor-
mation is presented relating to such a listed factor)
any other aggravating factor for which notice has
been so provided.
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Information presented may include the trial transcript and
exhibits. Any other information relevant to such mitigat-
ing or aggravating factors may be presented by either the
Government or the defendant, regardless of its admissibil-
ity under the rules governing admission of evidence at
criminal trials, except that information may be excluded
if its probative value is outweighed by the danger of creat-
ing unfair prejudice, confusing the issues, or misleading
the jury. The attorney for the Government and for the
defendant shall be permitted to rebut any information re-
ceived at the hearing, and shall be given fair opportunity
to present argument as to the adequacy of the information
to establish the existence of any aggravating or mitigating
factor, and as to the appropriateness in that case of im-
posing a sentence of death. The attorney for the Govern-
ment shall open the argument. The defendant shall be per-
mitted to reply. The Government shall then be permitted
to reply in rebuttal. The burden of establishing the exist-
ence of an aggravating factor is on the Government, and
is not satisfied unless the existence of such a factor is es-
tablished beyond a reasonable doubt. The burden of estab-
lishing the existence of any mitigating factor is on the de-
fendant, and is not satisfied unless the existence of such
a factor is established by a preponderance of the evidence.
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‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or
if there is no jury, the court, shall consider all the informa-
tion 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 aggra-
vating factor for which notice has been provided under
subsection (a) found to exist. A finding with respect to
a mitigating factor may be made by one 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 es-
tablished. A finding with respect to any aggravating factor
must be unanimous. If no aggravating 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 SEN-
TENCE OF DEATH.—If an aggravating factor required to
be considered under section 3592(b) is found to exist, the
jury, or if there is no jury, the court, shall then consider
whether the aggravating factor or factors found to exist
outweigh any mitigating factor or factors. The jury, or if
there is no jury, the court, shall recommend a sentence
of death if it unanimously finds at least one aggravating
factor and no mitigating factor or if it finds one or more
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aggravating factors which outweigh any mitigating fac-
tors. In any other case, it shall not recommend a sentence
of death. The jury shall be instructed that it must avoid
any influence of sympathy, sentiment, passion, prejudice,
or other arbitrary factors in its decision, and should make
such a recommendation as the information warrants.
‘‘(f) SPECIAL PRECAUTION TO ASSURE AGAINST
DISCRIMINATION.—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 rec-
ommend a sentence of death unless it has concluded that
it would recommend a sentence of death for the crime in
question no matter what the race, color, religious beliefs,
national origin, or sex of the defendant or of any victim
may be. The jury, upon return of a finding under sub-
section (e), shall also return to the court a certificate,
signed by each juror, that consideration of the race, color,
religious beliefs, national origin, or sex of the defendant
or any victim was not involved in reaching his or her indi-
vidual decision and that the individual juror would have
made the same recommendation regarding a sentence for
the crime in question no matter what the race, color, reli-
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gious beliefs, national origin, or sex of the defendant or
any victim may be.
‘‘§ 3594. Imposition of a sentence of death
‘‘Upon the recommendation under section 3593(e)
that a sentence of death be imposed, the court shall sen-
tence the defendant to death. Otherwise the court shall
impose a sentence, other than death, authorized by law.
Notwithstanding any other provision of law, if the maxi-
mum term of imprisonment for the offense is life imprison-
ment, the court may impose a sentence of life imprison-
ment without the possibility of release or furlough.
‘‘§ 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 of the sentence must be filed within the time speci-
fied for the filing of a notice of appeal of the judgment
of conviction. An appeal of the sentence under this section
may be consolidated with an appeal of the judgment of
conviction 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;
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‘‘(3) the procedures employed in the sentencing
hearing; and
‘‘(4) the special findings returned under section
3593(d).
‘‘(c) DECISION AND DISPOSITION.—
‘‘(1) If the court of appeals determines that—
‘‘(A) the sentence of death was not im-
posed under the influence of passion, prejudice,
or any other arbitrary factor; and
‘‘(B) the evidence and information support
the special findings of the existence of an ag-
gravating factor or factors;
it shall affirm the sentence.
‘‘(2) In any other case, the court of appeals
shall remand the case for reconsideration under sec-
tion 3593 or for imposition of another authorized
sentence as appropriate.
‘‘(3) The court of appeals shall state in writing
the reasons for its disposition of an appeal of sen-
tence of death under this section.
‘‘§ 3596. Implementation of sentence of death
‘‘(a) A person who has been sentenced to death pur-
suant 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
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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 so provide, and the sentence shall be imple-
mented in the manner prescribed by such law.
‘‘(b) A sentence of death shall not be carried out upon
a person who lacks the mental capacity to understand the
death penalty and why it was imposed on that person, or
upon a woman while she is pregnant.
‘‘(c) No employee of any State department of correc-
tions or the Federal Bureau of Prisons and no employee
providing services to that department or bureau under
contract shall be required, as a condition of that employ-
ment or contractual obligation, to be in attendance at or
to participate in any execution carried out under this sec-
tion if such participation is contrary to the moral or reli-
gious convictions of the employee. For purposes of this
subsection, the term ‘participate in any execution’ includes
personal preparation of the condemned individual and the
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apparatus used for the execution, and supervision of the
activities of other personnel in carrying out such activities.
‘‘§ 3597. Use of State facilities
‘‘A United States Marshal charged with supervising
the implementation of a sentence of death may use appro-
priate State or local facilities for the purpose, may use
the services of an appropriate State or local official or of
a person such as an official employed for the purpose, and
shall pay the costs thereof in an amount approved by the
Attorney General.
‘‘§ 3598. Appointment of counsel
‘‘(a) FEDERAL CAPITAL CASES.—
‘‘(1) REPRESENTATION OF INDIGENT DEFEND-
ANTS.—Notwithstanding any other provision of law,
this subsection shall govern the appointment of
counsel for any defendant against whom a sentence
of death is sought, or on whom a sentence of death
has been imposed, for an offense against the United
States, where the defendant is or becomes financially
unable to obtain adequate representation. Such a de-
fendant shall be entitled to appointment of counsel
from the commencement of trial proceedings until
one of the conditions specified in section 3599(b) of
this title has occurred.
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‘‘(2) REPRESENTATION BEFORE FINALITY OF
JUDGMENT.—A defendant within the scope of this
subsection shall have counsel appointed for trial rep-
resentation as provided in section 3005 of this title.
At least one counsel so appointed shall continue to
represent the defendant until the conclusion of direct
review of the judgment, unless replaced by the court
with other qualified counsel.
‘‘(3) REPRESENTATION
AFTER
FINALITY
OF
JUDGMENT.—When a judgment imposing a sentence
of death has become final through affirmance by the
Supreme Court on direct review, denial of certiorari
by the Supreme Court on direct review, or expiration
of the time for seeking direct review in the court of
appeals or the Supreme Court, the Government shall
promptly notify the district court that imposed the
sentence. Within ten days of receipt of such notice,
the district court shall proceed to make a determina-
tion whether the defendant is eligible under this sub-
section for appointment of counsel for subsequent
proceedings. On the basis of the determination, the
court shall issue an order: (A) appointing one or
more counsel to represent the defendant upon a
finding that the defendant is financially unable to
obtain adequate representation and wishes to have
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counsel appointed or is unable competently to decide
whether to accept or reject appointment of counsel;
(B) finding, after a hearing if necessary, that the
defendant rejected appointment of counsel and made
the decision with an understanding of its legal con-
sequences; or (C) denying the appointment of coun-
sel upon a finding that the defendant is financially
able to obtain adequate representation. Counsel ap-
pointed pursuant to this paragraph shall be different
from the counsel who represented the defendant at
trial and on direct review unless the defendant and
counsel request a continuation or renewal of the ear-
lier representation.
‘‘(4) STANDARDS FOR COMPETENCE OF COUN-
SEL.—In relation to a defendant who is entitled to
appointment of counsel under this subsection, at
least one counsel appointed for trial representation
must have been admitted to the bar for at least five
years and have at least three years of experience in
the trial of felony cases in the Federal district
courts. If new counsel is appointed after judgment,
at least one counsel so appointed must have been ad-
mitted to the bar for at least five years and have at
least three years of experience in the litigation of fel-
ony cases in the Federal courts of appeals or the Su-
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preme Court. The court, for good cause, may ap-
point counsel who does not meet these standards,
but whose background, knowledge, or experience
would otherwise enable him or her to properly rep-
resent the defendant, with due consideration of the
seriousness of the penalty and the nature of the liti-
gation.
‘‘(5) APPLICABILITY
OF
CRIMINAL
JUSTICE
ACT.—Except as otherwise provided in this sub-
section, the provisions of section 3006A of this title
shall apply to appointments under this subsection.
‘‘(6) CLAIMS OF INEFFECTIVENESS OF COUN-
SEL.—The ineffectiveness or incompetence of coun-
sel during proceedings on a motion under section
2255 of title 28, United States Code, in a capital
case shall not be a ground for relief from the judg-
ment or sentence in any proceeding. This limitation
shall not preclude the appointment of different coun-
sel at any stage of the proceedings.
‘‘(b) STATE CAPITAL CASES.—The laws of the United
States shall not be construed to impose any requirement
with respect to the appointment of counsel in any proceed-
ing in a State court or other State proceeding in a capital
case, other than any requirement imposed by the Constitu-
tion of the United States. In a proceeding under section
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2254 of title 28, United States Code, relating to a State
capital case, or any subsequent proceeding on review, ap-
pointment of counsel for a petitioner who is or becomes
financially unable to afford counsel shall be in the discre-
tion of the court, except as provided by a rule promulgated
by the Supreme Court pursuant to statutory authority.
Such appointment of counsel shall be governed by the pro-
visions of section 3006A of this title.
‘‘§ 3599. Collateral Attack on Judgment Imposing Sen-
tence of Death
‘‘(a) TIME FOR MAKING SECTION 2255 MOTION.—In
any case in which a sentence of death has been imposed
for an offense against the United States and the judgment
has become final as described in section 3598(a)(3) of this
title, a motion in the case under section 2255 of title 28,
United States Code, must be filed within 90 days of the
issuance of the order relating to appointment of counsel
under section 3598(a)(3) of this title. The court in which
the motion is filed, for good cause shown, may extend the
time for filing for a period not exceeding sixty days. A
motion described in this section shall have priority over
all non-capital matters in the district court, and in the
court of appeals on review of the district court’s decision.
‘‘(b) STAY OF EXECUTION.—The execution of a sen-
tence of death shall be stayed in the course of direct review
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of the judgment and during the litigation of an initial mo-
tion in the case under section 2255 of title 28, United
States Code. The stay shall run continuously following im-
position of the sentence, and shall expire if—
‘‘(1) the defendant fails to file a motion under
section 2255 of title 28, United States Code, within
the time specified in subsection (a), or fails to make
a timely application for court of appeals review fol-
lowing the denial of such a motion by a district
court; or
‘‘(2) upon completion of district court and court
of appeals review under section 2255 of title 28,
United States Code, the motion under that section
is denied and (A) the time for filing a petition for
certiorari has expired and no petition has been filed;
(B) a timely petition of certiorari was filed and the
Supreme Court denied the petition; or (C) a timely
petition for certiorari was filed and upon consider-
ation of the case, the Supreme Court disposed of it
in a manner that left the capital sentence undis-
turbed; or
‘‘(3) before a district court, in the presence of
counsel and after having been advised of the con-
sequences of his decision, the defendant waives the
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right to file a motion under section 2255 of title 28,
United States Code.
‘‘(c) FINALITY OF THE DECISION ON REVIEW.—If
one of the conditions specified in subsection (b) has oc-
curred, no court thereafter shall have the authority to
enter a stay of execution or grant relief in the case un-
less—
‘‘(1) the basis for the stay and request for relief
is a claim not presented in earlier proceedings; and
‘‘(2) the failure to raise the claim is (A) the re-
sult of governmental action in violation of the Con-
stitution or laws of the United States: (B) the result
of the Supreme Court recognition of a new Federal
right that is retroactively applicable; or (C) based on
a factual predicate that could not have been discov-
ered through the exercise of reasonable diligence in
time to present the claim in earlier proceedings; and
‘‘(3) the facts underlying the claim would be
sufficient, if proven, to undermine the court’s con-
fidence in the determination of guilt on the offense
or offenses for which the death penalty was im-
posed.’’; and
(2) in the chapter analysis of part II, by adding
the following new item after the item relating to
chapter 227:
‘‘228. Death penalty ........................................................................... 3591’’.