an offense described in paragraph (1), the jury,
or if there is no jury, the court, shall consider
each of the following mitigating factors and de-
termine which, if any exists:
‘‘(i) MENTAL CAPACITY.—The defend-
ant’s mental capacity to appreciate the
wrongfulness of his or her conduct or to
conform his or her 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.
‘‘(ii) DURESS.—The defendant was
under unusual and substantial duress, re-
gardless of whether the duress was of such
a degree as to constitute a defense to the
charge.
‘‘(iii) PARTICIPATION
IN
OFFENSE
MINOR.—The defendant’s participation in
the offense, which was committed by an-
other, was relatively minor, although not
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 de-
fendant’s character or record or any other cir-
cumstance of the offense that the defendant
may proffer as a mitigating factor exists.
‘‘(B) AGGRAVATING
FACTORS.—In deter-
mining whether a sentence of death is justified
for an offense described in paragraph (1), the
jury, or if there is no jury, the court, shall con-
sider each of the following aggravating factors
and determine which, if any, exist—
‘‘(i) PREVIOUS
CONVICTION
OF
OF-
FENSE FOR WHICH A SENTENCE OF DEATH
OR
LIFE
IMPRISONMENT
WAS
AUTHOR-
IZED.—The defendant has previously been
convicted of another Federal or State of-
fense resulting in the death of a person,
for which a sentence of life imprisonment
or death was authorized by statute.
‘‘(ii) PREVIOUS CONVICTIONS OF VIO-
LENT OFFENSES.—The defendant has pre-
viously been convicted of 2 or more Fed-
eral or State offenses, each punishable by
a term of imprisonment of more than 1
year, committed on different occasions, in-
volving the infliction or attempted inflic-
tion of serious bodily injury or death upon
another person.
‘‘(iii) 
PREVIOUS
CONVICTIONS
OF
DRUG OFFENSES.—The defendant has pre-
viously been convicted of 2 or more Fed-
eral or State offenses, each punishable by
a term of imprisonment of more than 1
year, committed on different occasions, in-
volving the importation, manufacture, or
distribution of a controlled substance (as
defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)).
‘‘(iv) PREVIOUS CONVICTIONS OF VIO-
LENT
DRUG
OFFENSES.—The defendant
has previously been convicted of a Federal
or State offense, punishable by a term of
imprisonment of more than 1 year, involv-
ing the infliction of, or attempted infliction
of, serious bodily injury or death upon an-
other person, and has previously been con-
victed of a Federal or State offense,
committed on a different occasion and
punishable by a term of imprisonment of
more than 1 year, involving the importa-
tion, manufacture, or distribution of a con-
trolled substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)).
‘‘(v) SERIOUS DRUG FELONY CONVIC-
TION.—The defendant has previously been
convicted of another Federal or State of-
fense involving the manufacture, distribu-
tion, importation, or possession of a con-
trolled substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)) for which a sentence of 5 or
more years of imprisonment was author-
ized by statute.
‘‘(vi) PREVIOUS
CONVICTION
OF
A
VIOLENT
FELONY
INVOLVING
A
FIRE-
ARM.—The defendant has previously been
convicted of a Federal or State offense
punishable by a term of imprisonment of
more than 1 year involving the use or at-
tempted use of a firearm to threaten, in-
timidate, assault or injure a person.
‘‘(3) 
SPECIAL
HEARING
TO
DETERMINE
WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—
‘‘(A) NOTICE
BY
THE
GOVERNMENT.—
When the Government intends to seek the death
penalty for an offense described in paragraph
(1), the attorney for the Government, a reason-
able time before the trial, or before acceptance
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 no-
tice—
‘‘(i) stating that the Government in
the event of conviction will seek the sen-
tence of death; and
‘‘(ii) setting forth the aggravating fac-
tor or factors listed in paragraph (2)(B)
and any other aggravating factor not listed
in paragraph (2)(B) that the Government,
if the defendant is convicted, will seek to
prove as the basis for the death penalty.
The court may permit the attorney for the Gov-
ernment 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 required under subpara-
graph (A) and the defendant is found guilty of
an offense described in paragraph (1), 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 sepa-
rate sentencing hearing to determine the pun-
ishment to be imposed. Prior to such a hearing,
no presentence report shall be prepared by the
United States Probation Service, notwithstand-
ing the provisions of the Federal Rules of
Criminal Procedure. The hearing shall be con-
ducted—
‘‘(i) before the jury that determined
the defendant’s guilt;
‘‘(ii) before a jury impaneled for the
purpose of the hearing if—
‘‘(I) the defendant was convicted
upon a plea of guilty;
‘‘(II) the defendant was convicted
after a trial before the court sitting
without a jury;
‘‘(III) the jury that determined
the defendant’s guilt was discharged
for good cause; or
‘‘(IV) after initial imposition of a
sentence under this section, reconsid-
eration of the sentence under the sec-
tion is necessary; or
‘‘(iii) before the court alone, upon mo-
tion of the defendant and with the ap-
proval of the attorney for the Government.
A jury impaneled pursuant to clause (ii) shall
consist of 12 members unless, at any time be-
fore 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 AGGRA-
VATING FACTORS.—At the hearing, information
may be presented concerning—
‘‘(i) any matter relating to any miti-
gating factor listed in paragraph (2)(A)
and any other mitigating factor; and
‘‘(ii) any matter relating to any ag-
gravating factor listed in paragraph (2)(B)
for which notice has been provided under
paragraph ( 3)(A) and (if information is
presented relating to such a listed factor)
any other aggravating factor for which no-
tice has been so provided.
Information presented may include the trial
transcript and exhibits. Any other information
relevant to such mitigating or aggravating fac-
tors may be presented by the Government or
the defendant, regardless of its admissibility
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 creating unfair prejudice, con-
fusing the issues, or misleading the jury. The
attorney for the Government and the attorney
for the defendant shall be permitted to rebut
any information received at the hearing, and
shall be given fair opportunity to present argu-
ment 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 imposing a sentence of death.
The attorney for the Government shall open the
argument. The defendant shall be permitted to
reply. The Government shall then be permitted
to reply in rebuttal. The burden of establishing
the existence of an aggravating factor is on the
Government, and is not satisfied unless the ex-
istence of such a factor is established beyond a
reasonable doubt. The burden of establishing
the existence of any mitigating factor is on the
defendant, and is not satisfied unless the exist-
ence of such a factor is established by a prepon-
derance of the evidence.
‘‘(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 identify-
ing any aggravating factor or factors set forth
in paragraph (2)(B) found to exist and any
other aggravating factor for which notice has
been provided under paragraph (3)(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 con-
sider such factor established for purposes of
this section regardless of the number of jurors
who concur that the factor has been estab-
lished. A finding with respect to any aggravat-
ing factor must be unanimous. If no aggravat-
ing factor listed in paragraph (2)(B) 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 an aggravating
factor required to be considered under para-
graph (2)(B) is found to exist, the jury, or if
there is no jury, the court, shall consider wheth-
er 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 unani-
mously finds at least 1 aggravating factor and
no mitigating factor or if it finds 1 or more ag-
gravating factors that outweigh any mitigating
factors. In any other case, it shall not rec-
ommend 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 in-
formation warrants.
‘‘(F) SPECIAL
PRECAUTION
TO
ENSURE
AGAINST DISCRIMINATION.—In a hearing held
before a jury, the court, prior to the return of
a finding under subparagraph (E), shall in-
struct the jury that, in considering whether a
sentence of death is justified, it shall not con-
sider 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 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 subpara-
graph (E), shall also return to the court a cer-
tificate, signed by each juror, that consideration
of the race, color, religious beliefs, national ori-
gin, 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 recommendation 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.
‘‘(4) IMPOSITION OF A SENTENCE OF DEATH.—
Upon the recommendation under paragraph (3)(E)
that a sentence of death be imposed, the court shall
sentence the defendant to death. Otherwise the court
shall impose a sentence, other than death, author-
ized by law.
‘‘(5) REVIEW OF A SENTENCE OF DEATH.—
‘‘(A) APPEAL.—In a case in which a sen-
tence 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 shall be filed within the time specified
for the filing of a notice of appeal of the judg-
ment of conviction. An appeal of the sentence
under this subsection 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—
‘‘(i) the evidence submitted during the
trial;
‘‘(ii) the information submitted during
the sentencing hearing;
‘‘(iii) the procedures employed in the
sentencing hearing; and
‘‘(iv) the special findings returned
under paragraph (3)(D).
‘‘(C) DECISION AND DISPOSITION.—
‘‘(i) If the court of appeals determines
that—
‘‘(I) the sentence of death was
not imposed under the influence of
passion, prejudice, or any other arbi-
trary factor;
‘‘(II) the evidence and informa-
tion support the special findings of
the existence of an aggravating factor
or factors; and
‘‘(III) the proceedings did not in-
volve any other prejudicial error re-
quiring reversal of the sentence that
was properly preserved for and raised
on appeal,
the court it shall affirm the sentence.
‘‘(ii) In any other case, the court of
appeals shall remand the case for reconsid-
eration or for imposition of another au-
thorized sentence as appropriate.
‘‘(iii) The court of appeals shall state
in writing the reasons for its disposition of
an appeal of sentence of death under this
subsection.
‘‘(6) 
IMPLEMENTATION
OF
SENTENCE
OF
DEATH.—
‘‘(A) PROCEDURE.— A person who has
been sentenced to death pursuant to this sub-
section shall be committed to the custody of the
Attorney General until exhaustion of the proce-
dures for appeal of the judgment of conviction
and for review of the sentence. When the sen-
tence is to be implemented, the Attorney Gen-
eral 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 that State does not provide for imple-
mentation of a sentence of death, the court
shall designate another State, the law of which
does so provide, and the sentence shall be im-
plemented in the manner prescribed by such
law.
‘‘(B) LIMITATION.—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) PARTICIPATION BY EMPLOYEES.—No
employee of any State department of correc-
tions or the Federal Bureau of Prisons, or the
United States Marshals Service, and no em-
ployee providing services to that department,
bureau, or service under contract shall be re-
quired, as a condition of that employment or
contractual obligation, to be in attendance at or
to participate in any execution carried out
under this subsection if such participation is
contrary to the moral or religious convictions of
the employee. For purposes of this subsection,
the term ‘participate in any execution’ includes
personal preparation of the condemned person
and the apparatus used for the execution, and
supervision of the activities of other personnel
in carrying out such activities.
‘‘(7) USE
OF
STATE
FACILITIES.—A United
States marshal charged with supervising the imple-
mentation 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 offi-
cial 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.
‘‘(8) APPOINTMENT OF COUNSEL.—
‘‘(A) REPRESENTATION OF INDIGENT DE-
FENDANTS.—Notwithstanding any other law,
this paragraph shall govern the appointment of
counsel for any defendant against whom a sen-
tence of death is sought or on whom a sentence
of death has been imposed for an offense de-
scribed in paragraph (1) when the defendant is
or becomes financially unable to obtain ade-
quate representation. Such a defendant shall be
entitled to appointment of counsel from the
commencement of trial proceedings until 1 of
the conditions specified in paragraph (9)(B)
has occurred.
‘‘(B) REPRESENTATION BEFORE FINALITY
OF JUDGMENT.—A defendant within the scope
of this paragraph shall have counsel appointed
for trial representation as provided in section
3005. At least 1 counsel so appointed shall con-
tinue to represent the defendant until the con-
clusion of direct review of the judgment, un-
less replaced by the court with other qualified
counsel.
‘‘(C) REPRESENTATION
AFTER
FINALITY
OF JUDGMENT.—When a judgment imposing a
sentence of death has become final through af-
firmance by the Supreme Court on direct re-
view, 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 10 days after receipt of
such a notice, the district court shall proceed to
make a determination whether the defendant is
eligible under this paragraph for appointment
of counsel for subsequent proceedings. On the
basis of the determination, the court shall issue
an order—
‘‘(i) appointing 1 or more counsel to
represent the defendant upon a finding
that the defendant is financially unable to
obtain adequate representation and wishes
to have counsel appointed or is unable
competently to decide whether to accept or
reject appointment of counsel;
‘‘(ii) finding, after a hearing if nec-
essary, that the defendant rejected ap-
pointment of counsel and made the deci-
sion with an understanding of its legal con-
sequences; or
‘‘(iii) denying the appointment of
counsel upon a finding that the defendant
is financially able to obtain adequate rep-
resentation. Counsel appointed pursuant to
this paragraph shall be different from the
counsel who represented the defendant at
trial and on direct review unless the de-
fendant and counsel request a continuation
or renewal of the earlier representation.
‘‘(D) STANDARDS
FOR
COMPETENCE
OF
COUNSEL.—In relation to a defendant who is
entitled to appointment of counsel under this
subsection, at least 1 counsel appointed for trial
representation shall have been admitted to the
bar for at least 5 years and have at least 3
years of experience in the trial of felony cases
in the Federal district courts. If new counsel is
appointed after judgment, at least 1 counsel so
appointed shall have been admitted to the bar
for at least 5 years and have at least 3 years
of experience in the litigation of felony cases in
the Federal courts of appeals or the Supreme
Court. The court, for good cause, may appoint
counsel who does not meet these standards, but
whose background, knowledge, or experience
would otherwise enable him or her to properly
represent the defendant, with due consideration
of the seriousness of the penalty and the nature
of the litigation.
‘‘(E) APPLICABILITY
OF
CRIMINAL
JUS-
TICE
ACT.—Except as otherwise provided in
this paragraph, section 3006A shall apply to
appointments under this paragraph.
‘‘(F) CLAIMS
OF
INEFFECTIVENESS
OF
COUNSEL.—The ineffectiveness or incompetence
of counsel during proceedings on a motion
under section 2255 of title 28 in a capital case
shall not be a ground for relief from the judg-
ment or sentence in any proceeding. The limita-
tion stated in the preceding sentence shall not
preclude the appointment of different counsel at
any stage of the proceedings.
‘‘(9) COLLATERAL ATTACK ON JUDGMENT IM-
POSING SENTENCE OF DEATH.—
‘‘(A) TIME FOR MAKING SECTION 2255 MO-
TION.—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 under section 3598(a)(3), a motion in the
case under section 2255 of title 28 shall be filed
within 90 days after the issuance of the order
relating to appointment of counsel under sec-
tion 3598(a)(3). The court in which the motion
is filed for good cause may extend the time for
filing for a period not exceeding 60 days. A mo-
tion under this subparagraph shall have priority
over all noncapital matters in the district court,
and in the court of appeals on review of the dis-
trict court’s decision.
‘‘(B) STAY OF EXECUTION.—The execution
of a sentence of death shall be stayed in the
course of direct review of the judgment and
during the litigation of an initial motion in the
case under section 2255 of title 28. The stay
shall run continuously following imposition of
the sentence, and shall expire if—
‘‘(i) the defendant fails to file a mo-
tion under section 2255 of title 28 within
the time specified in subparagraph (A) or
fails to make a timely application for court
of appeals review following the denial of
such a motion by a district court;
‘‘(ii) upon completion of district court
and court of appeals review under section
2255 of title 28, the motion under that
section is denied and—
‘‘(I) the time for filing a petition
for certiorari has expired and no peti-
tion has been filed;
‘‘(II) a timely petition of certio-
rari was filed and the Supreme Court
denied the petition; or
‘‘(III) a timely petition for certio-
rari was filed and upon consideration
of the case,
the Supreme Court disposed of it in a
manner that left the capital sentence un-
disturbed; or
‘‘(iii) before a district court, in the
presence of counsel and after having been
advised of the consequences of his decision,
the defendant waives the right to file a mo-
tion under section 2255 of title 28 .
‘‘(C) FINALITY OF THE DECISION ON RE-
VIEW.—If 1 of the conditions specified in sub-
paragraph (B) has occurred, no court there-
after shall have the authority to enter a stay of
execution or grant relief in the case unless—
‘‘(i) the basis for the stay and request
for relief is a claim not presented in earlier
proceedings;
‘‘(ii) the failure to raise the claim is—
‘‘(I) the result of governmental
action in violation of the Constitution
or laws of the United States;
‘‘(II) the result of the Supreme
Court recognition of a new Federal
right that is retroactively applicable;
or
‘‘(III) based on a factual predi-
cate that could not have been discov-
ered through the exercise of reason-
able diligence in time to present the
claim in earlier proceedings; and
‘‘(iii) the facts underlying the claim
would be sufficient, if proven, to under-
mine the court’s confidence in the deter-
mination of guilt on the offense or offenses
for which the death penalty was imposed.
‘‘(10) JURISDICTION.—There is Federal juris-
diction over an offense under this subsection if—
‘‘(A) the conduct of the offender occurred
in the course of an offense against the United
States; or
‘‘(B) a destructive device or part thereof
involved in the offense has moved at any time
in interstate or foreign commerce.’’.
HR 3556 IH——2 HR 3556 IH——3 eHR 3556 IH 25