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 Govern-
ment and urge the States to do the same, while a Na-
tional Commission on the Death Penalty reviews the
fairness of 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. SHORT TITLE.
This Act may be cited as the ‘‘National Death Pen-
alty Moratorium Act of 2001’’.
TITLE I—MORATORIUM ON THE
DEATH PENALTY
SEC. 101. FINDINGS.
Congress makes the following findings:
(1) GENERAL FINDINGS.—
(A) The administration of the death pen-
alty by the Federal government and the States
should be consistent with our Nation’s funda-
mental principles of fairness, justice, equality,
and due process.
(B) At a time when Federal executions are
scheduled to recommence, Congress should con-
sider that more than ever Americans are ques-
tioning the use of the death penalty and calling
for assurances that it be fairly applied. Support
for the death penalty has dropped to the lowest
level in 19 years. An NBC News/Wall Street
Journal Poll revealed that 63 percent of Ameri-
cans support a suspension of executions until
questions of fairness can be addressed.
(C) Documented unfairness in the Federal
system requires Congress to act and suspend
Federal executions. Additionally, substantial
evidence of unfairness throughout death penalty
States justifies further investigation by Con-
gress.
(2) ADMINISTRATION OF THE DEATH PENALTY
BY THE FEDERAL GOVERNMENT.—
(A) The fairness of the administration of
the Federal death penalty has recently come
under serious scrutiny, specifically raising ques-
tions of racial and geographic disparities:
(i) Eighty percent of Federal death
row inmates are members of minority
groups.
(ii) A report released by the Depart-
ment of Justice on September 12, 2000,
found that 80 percent of defendants who
were charged with death-eligible offenses
under Federal law and whose cases were
submitted by the United States attorneys
under the Department’s death penalty de-
cision-making procedures were African
American, Hispanic American, or members
of other minority groups.
(iii) The Department of Justice report
shows that United States attorneys in only
5 of 94 Federal districts—1 each in Vir-
ginia, Maryland, Puerto Rico, and 2 in
New York—submit 40 percent of all cases
in which the death penalty is considered.
(iv) The Department of Justice report
shows that United States attorneys who
have frequently recommended seeking the
death penalty are often from States with a
high number of executions under State
law, including Texas, Virginia, and Mis-
souri.
(v) The Department of Justice report
shows that white defendants are more like-
ly than black defendants to negotiate plea
bargains saving them from the death pen-
alty in Federal cases.
(vi) A study conducted by the House
Judiciary Subcommittee on Civil and Con-
stitutional Rights in 1994 concluded that
89 percent of defendants selected for cap-
ital prosecution under the Anti-Drug
Abuse Act of 1988 were either African
American or Hispanic American.
(vii) The National Institute of Justice
has already set into motion a comprehen-
sive study of these racial and geographic
disparities.
(viii) Federal executions should not
proceed until these disparities are fully
studied, discussed, and the federal death
penalty process is subjected to necessary
remedial action.
(B) In addition to racial and geographic
disparities in the administration of the federal
death penalty, other serious questions exist
about the fairness and reliability of federal
death penalty prosecutions:
(i) Federal prosecutors rely heavily on
bargained-for testimony from accomplices
of the capital defendant, which is often ob-
tained in exchange for not seeking the
death penalty against the accomplices.
This practice creates a serious risk of false
testimony.
(ii) Federal prosecutors are not re-
quired to provide discovery sufficiently
ahead of trial to permit the defense to be
prepared to use this information effectively
in defending their clients.
(iii) The Federal Bureau of Investiga-
tion (FBI), in increasing isolation from the
rest of the nation’s law enforcement agen-
cies, refuses to make electronic recordings
of interrogations that produce confessions,
thus making subsequent scrutiny of the le-
gality and reliability of such interrogations
more difficult.
(iv) Federal prosecutors rely heavily
on predictions of ‘‘future dangerous-
ness’’—predictions deemed unreliable and
misleading by the American Psychiatric
Association and the American Psycho-
logical Association—to secure death sen-
tences.
(3) ADMINISTRATION OF THE DEATH PENALTY
BY THE STATES.—
(A) The punishment of death carries an
especially heavy burden to be free from arbi-
trariness and discrimination. The Supreme
Court has held that ‘‘super due process’’, a
higher standard than that applied in regular
criminal trials, is necessary to meet constitu-
tional requirements. There is significant evi-
dence that States are not providing this height-
ened level of due process. For example:
(i) In the most comprehensive review
of modern death sentencing, Professor
James Liebman and researchers at Colum-
bia University found that, during the pe-
riod 1973 to 1995, 68 percent of all death
penalty cases reviewed were overturned due
to serious constitutional errors. In the
wake of the Liebman study, 6 States (Ari-
zona, Maryland, North Carolina, Illinois,
Indiana, and Nebraska), as well as the
Chicago Tribune and the Texas Defender
Service are conducting additional studies.
These studies may expose additional prob-
lems. With few exceptions, the rate of
error was consistent across all death pen-
alty States.
(ii) Forty percent of the cases over-
turned were reversed in Federal court after
having been upheld by the States.
(B) The high rate of error throughout all
death penalty jurisdictions suggests that there
is a grave risk that innocent persons may have
been, or will likely be, wrongfully executed. Al-
though the Supreme Court has never conclu-
sively addressed the issue of whether executing
an innocent person would in and of itself violate
the Constitution, in Herrara v. Collins, 506
U.S. 390 (1993), a majority of the court ex-
pressed the view that a persuasive demonstra-
tion of actual innocence would violate sub-
stantive due process rendering imposition of a
death sentence unconstitutional. In any event,
the wrongful conviction and sentencing of a per-
son to death is a serious concern for many
Americans. For example:
(i) After 13 innocent people were re-
leased from Illinois death row in the same
period that the State had executed 12 peo-
ple, on January 31, 2000, Governor
George Ryan of Illinois imposed a morato-
rium on executions until he could be ‘‘sure
with moral certainty that no innocent man
or woman is facing a lethal injection, no
one will meet that fate’’.
(ii) Since 1973, 93 persons have been
freed and exonerated from death rows
across the country, most after serving
lengthy sentences.
(C) Wrongful convictions create a serious
public safety problem because the true killer is
still at large, while the innocent person lan-
guishes in prison.
(D) There are many systemic problems
that result in innocent people being convicted
such as mistaken identification, reliance on jail-
house informants, reliance on faulty forensic
testing and no access to reliable DNA testing.
For example:
(i) A study of cases of innocent people
who were later exonerated, conducted by
attorneys Barry Scheck and Peter Neufeld
with ‘‘The Innocence Project’’ at Cardozo
Law School, showed that mistaken identi-
fications of eyewitnesses or victims contrib-
uted to 84 percent of the wrongful convic-
tions.
(ii) Many persons on death row were
convicted prior to 1994 and did not receive
the benefit of modern DNA testing. At
least 10 individuals sentenced to death
have been exonerated through post-convic-
tion DNA testing, some within days of exe-
cution. Yet in spite of the current wide-
spread prevalence and availability of DNA
testing, many States have procedural bar-
riers blocking introduction of post-convic-
tion DNA testing. More than 30 States
have laws that require a motion for a new
trial based on newly discovered evidence to
be filed within 6 months or less.
(iii) The widespread use of jailhouse
snitches who earn reduced charges or sen-
tences by fabricating ‘‘admissions’’ by fel-
low inmates to unsolved crimes can lead to
wrongful convictions.
(iv) The misuse of forensic evidence
can lead to wrongful convictions. A re-
cently released report from the Texas De-
fender Service entitled ‘‘A State of Denial:
Texas and the Death Penalty’’ found 160
cases of official forensic misconduct includ-
ing 121 cases where expert psychiatrists
testified ‘‘with absolute certainty that the
defendant would be a danger in the fu-
ture’’, often without even interviewing the
defendant.
(E) The sixth amendment to the Constitu-
tion guarantees all accused persons access to
competent counsel. The Supreme Court set out
standards for determining competency in the
case of Strickland v. Washington, 466 U.S. 668
(1984). Unfortunately, there is unequal access
to competent counsel throughout death penalty
States. For example:
(i) Ninety percent of capital defend-
ants cannot afford to hire their own attor-
ney.
(ii) Fewer than one-quarter of the 38
death penalty States have set any stand-
ards for competency of counsel and in
those few States, these standards were set
only recently. In most States, any person
who passes a bar examination, even if that
attorney has never represented a client in
any type of case, may represent a client in
a death penalty case.
(iii) Thirty-seven percent of capital
cases were reversed because of ineffective
assistance of counsel, according to the Co-
lumbia study.
(iv) The recent Texas report noted
problems with Texas defense attorneys who
slept through capital trials, ignored obvious
exculpatory evidence, suffered discipline for
ethical lapses or for being under the influ-
ence of drugs or alcohol while representing
an indigent capital defendant at trial.
(v) Poor lawyering was also cited by
Governor Ryan in Illinois as a basis for a
moratorium. More than half of all capital
defendants there were represented by law-
yers who were later disciplined or dis-
barred for unethical conduct.
(F) The Supreme Court has held that it is
a violation of the eighth amendment to impose
the death penalty in a manner that is arbitrary,
capricious, or discriminatory. McKlesky v.
Kemp, 481 U.S. 279 (1987). Studies consist-
ently indicate racial disparity in the application
of the death penalty both for the defendants
and the victims. The death penalty is dispar-
ately applied in various regions throughout the
country, suggesting arbitrary administration of
the death penalty based on where the prosecu-
tion takes place. For example:
(i) Of the 85 executions in the year
2000, 51 percent of the defendants were
white, 40 percent were black, 7 percent
were Latino and 2 percent Native Amer-
ican. Of the victims in the underlying mur-
der, 76 percent were white, 18 percent
were black, 2 percent were Latino, and 3
percent were ‘‘other’’. These figures show
a continuing trend since reinstatement of
the modern death penalty of a predomi-
nance of white victims’ cases. Despite the
fact that nationally whites and blacks are
victims of murder in approximately equal
numbers, 83 percent of the victims in-
volved in capital cases overall since rein-
statement, and 76 percent of the victims in
2000, have been white. Since this disparity
is confirmed in studies that control for
similar crimes by defendants with similar
backgrounds, it implies that white victims
are considered more valuable in the crimi-
nal justice system.
(ii) Executions are conducted pre-
dominately in southern States. Ninety per-
cent of all executions in 2000 were con-
ducted in the south. Only 3 States outside
the south, Arizona, California, and Mis-
souri, conducted an execution in 2000.
Texas accounted for almost as many execu-
tions as all the remaining States combined.
SEC. 102. FEDERAL AND STATE DEATH PENALTY MORATO-
RIUM.
(a) IN GENERAL.—The Federal Government shall
not carry out any sentence of death imposed under Fed-
eral law until the Congress considers the final findings and
recommendations of the National Commission on the
Death Penalty in the report submitted under section
202(c)(2) and the Congress enacts legislation repealing
this section and implements or rejects the guidelines and
procedures recommended by the Commission.
(b) SENSE OF CONGRESS.—It is the sense of Con-
gress that each State that authorizes the use of the death
penalty should enact a moratorium on executions to allow
time to review whether the administration of the death
penalty by that State is consistent with constitutional re-
quirements of fairness, justice, equality, and due process.
TITLE 
II—NATIONAL 
COMMIS-
SION ON THE DEATH PEN-
ALTY
SEC. 201. ESTABLISHMENT OF COMMISSION.
(a) ESTABLISHMENT.—There is established a com-
mission to be known as the National Commission on the
Death Penalty (in this title referred to as the ‘‘Commis-
sion’’).
(b) MEMBERSHIP.—
(1) APPOINTMENT.—Members of the Commis-
sion shall be appointed by the President in consulta-
tion with the Attorney General and the Chairmen
and Ranking Members of the Committees on the Ju-
diciary of the House of Representatives and the Sen-
ate.
(2) COMPOSITION.—The Commission shall be
composed of 15 members, of whom—
(A) 3 members shall be Federal or State
prosecutors;
(B) 3 members shall be attorneys experi-
enced in capital defense;
(C) 2 members shall be current or former
Federal or State judges;
(D) 2 members shall be current or former
Federal or State law enforcement officials; and
(E) 5 members shall be individuals from
the public or private sector who have knowledge
or expertise, whether by experience or training,
in matters to be studied by the Commission,
which may include—
(i) officers or employees of the Fed-
eral Government or State or local govern-
ments;
(ii) members of academia, nonprofit
organizations, the religious community, or
industry; and
(iii) other interested individuals.
(3) BALANCED VIEWPOINTS.—In appointing the
members of the Commission, the President shall, to
the maximum extent practicable, ensure that the
membership of the Commission is fairly balanced
with respect to the opinions of the members of the
Commission regarding support for or opposition to
the use of the death penalty.
(4) DATE.—The appointments of the initial
members of the Commission shall be made not later
than 30 days after the date of enactment of this
Act.
(c) PERIOD OF APPOINTMENT.—Each member shall
be appointed for the life of the Commission.
(d) VACANCIES.—A vacancy in the Commission shall
not affect the powers of the Commission, but shall be filled
in the same manner as the original appointment.
(e) INITIAL MEETING.—Not later than 30 days after
all initial members of the Commission have been ap-
pointed, the Commission shall hold the first meeting.
(f) MEETINGS.—The Commission shall meet at the
call of the Chairperson.
(g) QUORUM.—A majority of the members of the
Commission shall constitute a quorum for conducting
business, but a lesser number of members may hold hear-
ings.
(h) CHAIR.—The President shall designate 1 member
appointed under subsection (a) to serve as the Chair of
the Commission.
(i) RULES
AND PROCEDURES.—The Commission
shall adopt rules and procedures to govern the proceedings
of the Commission.
SEC. 202. DUTIES OF THE COMMISSION.
(a) STUDY.—
(1) IN GENERAL.—The Commission shall con-
duct a thorough study of all matters relating to the
administration of the death penalty to determine
whether the administration of the death penalty
comports with constitutional principles and require-
ments of fairness, justice, equality, and due process.
(2) MATTERS STUDIED.—The matters studied
by the Commission shall include the following:
(A) Racial disparities in capital charging,
prosecuting, and sentencing decisions.
(B) Disproportionality in capital charging,
prosecuting, and sentencing decisions based on
geographic location and income status of de-
fendants or any other factor resulting in such
disproportionality.
(C) Adequacy of representation of capital
defendants, including consideration of the
American Bar Association ‘‘Guidelines for the
Appointment and Performance of Counsel in
Death Penalty Cases’’ (adopted February 1989)
and American Bar Association policies that are
intended to encourage competency of counsel in
capital cases (adopted February 1979, Feb-
ruary 1988, February 1990, and August 1996).
(D) Whether innocent persons have been
sentenced to death and the reasons these
wrongful convictions have occurred.
(E) Whether the Federal Government
should seek the death penalty in a State with
no death penalty.
(F) Whether courts are adequately exer-
cising independent judgment on the merits of
constitutional claims in State post-conviction
and Federal habeas corpus proceedings.
(G) Whether mentally retarded persons
and persons who were under the age of 18 at
the time of their offenses should be sentenced
to death after conviction of death-eligible of-
fenses.
(H) Procedures to ensure that persons sen-
tenced to death have access to forensic evidence
and modern testing of forensic evidence, includ-
ing DNA testing, when modern testing could
result in new evidence of innocence.
(I) Any other law or procedure to ensure
that death penalty cases are administered fairly
and impartially, in accordance with the Con-
stitution.
(b) GUIDELINES AND PROCEDURES.—
(1) IN
GENERAL.—Based on the study con-
ducted under subsection (a), the Commission shall
establish guidelines and procedures for the adminis-
tration of the death penalty consistent with para-
graph (2).
(2) INTENT
OF
GUIDELINES
AND
PROCE-
DURES.—The guidelines and procedures required by
this subsection shall—
(A) ensure that the death penalty cases are
administered fairly and impartially, in accord-
ance with due process;
(B) minimize the risk that innocent per-
sons may be executed; and
(C) ensure that the death penalty is not
administered in a racially discriminatory man-
ner.
(c) REPORT.—
(1) PRELIMINARY REPORT.—Not later than 1
year after the date of enactment of this Act, the
Commission shall submit to the President, the Attor-
ney General, and the Congress a preliminary report,
which shall contain a preliminary statement of find-
ings and conclusions.
(2) FINAL REPORT.—Not later than 2 years
after the date of enactment of this Act, the Commis-
sion shall submit a report to the President, the At-
torney General, and the Congress which shall con-
tain a detailed statement of the findings and conclu-
sions of the Commission, together with the rec-
ommendations of the Commission for legislation and
administrative actions that implement the guidelines
and procedures that the Commission considers ap-
propriate.
SEC. 203. POWERS OF THE COMMISSION.
(a) INFORMATION
FROM
FEDERAL
AND
STATE
AGENCIES.—
(1) IN GENERAL.—The Commission may secure
directly from any Federal or State department or
agency information that the Commission considers
necessary to carry out the provisions of this title.
(2) FURNISHING
OF
INFORMATION.—Upon a
request of the Chairperson of the Commission, the
head of any Federal or State department or agency
shall furnish the information requested by the Chair-
person to the Commission.
(b) POSTAL SERVICES.—The Commission may use
the United States mails in the same manner and under
the same conditions as other departments and agencies of
the Federal Government.
(c) GIFTS.—The Commission may accept, use, and
dispose of gifts or donations of services or property.
(d) HEARINGS.—The Commission or, at the direction
of the Commission, any subcommittee or member of the
Commission, may, for the purpose of carrying out the pro-
visions of this title—
(1) hold hearings, sit and act at times and
places, take testimony, receive evidence, and admin-
ister oaths that the Commission, subcommittee, or
member considers advisable; and
(2) require, by subpoena or otherwise, the at-
tendance and testimony of witnesses and the produc-
tion of books, records, correspondence, memoranda,
papers, documents, tapes, and materials that the
Commission, subcommittee, or member considers ad-
visable.
(e) 
ISSUANCE
AND
ENFORCEMENT
OF
SUB-
POENAS.—
(1) ISSUANCE.—Subpoenas issued pursuant to
subsection (d)—
(A) shall bear the signature of the Chair-
person of the Commission; and
(B) shall be served by any person or class
of persons designated by the Chairperson for
that purpose.
(2) ENFORCEMENT.—
(A) IN GENERAL.—In the case of contu-
macy or failure to obey a subpoena issued
under subsection (d), the district court of the
United States for the judicial district in which
the subpoenaed person resides, is served, or
may be found, may issue an order requiring
that person to appear at any designated place
to testify or to produce documentary or other
evidence.
(B) CONTEMPT.—Any failure to obey a
court order issued under subparagraph (A) may
be punished by the court as a contempt.
(3) TESTIMONY OF PERSONS IN CUSTODY.—A
court of the United States within the jurisdiction in
which testimony of a person held in custody is
sought by the Commission or within the jurisdiction
of which such person is held in custody, may, upon
application by the Attorney General, issue a writ of
habeas corpus ad testificandum requiring the custo-
dian to produce such person before the Commission,
or before a member of the Commission or a member
of the staff of the Commission designated by the
Commission for such purpose.
(f) WITNESS ALLOWANCES AND FEES.—
(1) IN
GENERAL.—The provisions of section
1821 of title 28, United States Code, shall apply to
witnesses requested or subpoenaed to appear at any
hearing of the Commission.
(2) TRAVEL
EXPENSES.—The per diem and
mileage allowances for witnesses shall be paid from
funds available to pay the expenses of the Commis-
sion.
SEC. 204. COMMISSION PERSONNEL MATTERS.
(a) COMPENSATION OF MEMBERS.—Members of the
Commission shall serve without compensation for the serv-
ices of the member to the Commission.
(b) TRAVEL EXPENSES.—The members of the Com-
mission shall be allowed travel expenses, including per
diem in lieu of subsistence, at rates authorized for employ-
ees of agencies under subchapter I of chapter 57 of title
5, United States Code, while away from their homes or
regular places of business in the performance of services
for the Commission.
(c) STAFF.—
(1) IN
GENERAL.—The Chairperson of the
Commission may, without regard to the civil service
laws and regulations, appoint and terminate an exec-
utive director and such other additional personnel as
may be necessary to enable the Commission to per-
form the duties of the Commission.
(2) EXECUTIVE
DIRECTOR.—The employment
of an executive director shall be subject to confirma-
tion by the Commission.
(3) COMPENSATION.—The Chairperson of the
Commission may fix the compensation of the execu-
tive director and other personnel without regard to
the provisions of chapter 51 and subchapter III of
chapter 53 of title 5, United States Code, relating
to classification of positions and General Schedule
pay rates, except that the rate of pay for the execu-
tive director and other personnel may not exceed the
rate payable for level V of the Executive Schedule
under section 5316 of title 5.
(d) DETAIL
OF GOVERNMENT EMPLOYEES.—Any
Federal Government employee may be detailed to the
Commission without reimbursement, and the detail shall
be without interruption or loss of civil service status or
privilege.
(e) PROCUREMENT OF TEMPORARY AND INTERMIT-
TENT SERVICES.—The Chairperson of the Commission
may procure temporary and intermittent services under
section 3109(b) of title 5, United States Code, at rates
for individuals which do not exceed the daily equivalent
of the annual rate of basic pay prescribed for level V of
the Executive Schedule under section 5316 of title 5.
SEC. 205. TERMINATION OF THE COMMISSION.
The Commission shall terminate 90 days after the
date on which the Commission submits its report under
section 202.
SEC. 206. FUNDING.
(a) IN GENERAL.—The Commission may expend an
amount not to exceed $850,000, as provided by subsection
(b), to carry out this title.
(b) AVAILABILITY.—Sums appropriated to the De-
partment of Justice shall be made available to carry out
this title.
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