I
103D CONGRESS
2D SESSION
H. R. 3936
To provide the penalty of death for federally prescribed kidnappings resulting
in the death of a minor.
IN THE HOUSE OF REPRESENTATIVES
MARCH 2, 1994
Mr. DUNCAN (for himself, Mr. SOLOMON, Mr. BAKER of California, Mr.
CANADY, Mr. FROST, Mr. DOOLITTLE, Mr. MCHUGH, and Mr. LEVY) in-
troduced the following bill; which was referred to the Committee on the
Judiciary
A BILL
To provide the penalty of death for federally prescribed
kidnappings resulting in the death of a minor.
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 ‘‘Children’s Protection
Act of 1994’’.
SEC. 2. DEATH PENALTY PROCEDURES.
Title 18 of the United States Code is amended—
(1) by adding after chapter 227 the following
new chapter:
years at the time of the offense or who is mentally re-
tarded may not be sentenced to death under this chapter.
‘‘§ 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 any offense, the jury,
or if there is no jury, the court, 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’s participation in the offense, which was
committed by another, was relatively minor, regard-
less of whether the participation was so minor as to
constitute a defense to the charge.
‘‘(4) NO
SIGNIFICANT
CRIMINAL
HISTORY.—
The defendant did not have a significant history of
other criminal conduct.
‘‘(5) DISTURBANCE.—The defendant committed
the offense under severe mental or emotional dis-
turbance.
‘‘(6) VICTIM’S CONSENT.—The victim consented
to the criminal conduct that resulted in the victim’s
death.
The jury, or if there is no jury, the court, shall consider
whether any other aspect of the defendant’s background,
character or record or any other circumstance of the of-
fense that the defendant may proffer as a mitigating fac-
tor exists.
‘‘(b) AGGRAVATING FACTORS FOR DEATH OCCUR-
RING DURING KIDNAPPING.—In determining whether a
sentence of death is justified for an offense described in
section 3591 of this title, 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) INVOLVEMENT OF FIREARM OR PREVIOUS
CONVICTION OF VIOLENT FELONY INVOLVING FIRE-
ARM.—The defendant—
‘‘(A) during and in relation to the commis-
sion of the offense or in escaping or attempting
to escape apprehension used or possessed a fire-
arm as defined in section 921 of this title; or
‘‘(B) has previously been convicted of a
Federal or State offense punishable by a term
of imprisonment of more than one year, involv-
ing the use of attempted or threatened use of
a firearm, as defined in section 921 of this title,
against another person.
‘‘(2) 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.
‘‘(3) PREVIOUS CONVICTION OF OTHER SERI-
OUS OFFENSES.—The defendant has previously been
convicted of two or more Federal or State offenses,
each punishable by a term of imprisonment of more
than one 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 or the infliction of,
or attempted infliction of, serious bodily injury or
death upon another person.
‘‘(4) GRAVE RISK OF DEATH TO ADDITIONAL
PERSONS.—The defendant, in the commission of the
offense or in escaping or attempting to escape ap-
prehension, knowingly created a grave risk of death
to one or more persons in addition to the victim of
the offense.
‘‘(5) HEINOUS, CRUEL, OR DEPRAVED MANNER
OF COMMISSION.—The defendant committed the of-
fense in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical
abuse to the victim.
‘‘(6) PROCUREMENT
OF
OFFENSE
BY
PAY-
MENT.—The defendant procured the commission of
the offense by payment, or promise of payment, of
anything of pecuniary value.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘§ 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 of this title, the attorney
for the Government, a reasonable 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 notice that the Government
in the event of conviction will seek the sentence of death.
The notice shall set forth the aggravating factor or factors
enumerated in section 3592 of this title, and any other
aggravating factor not specifically enumerated in section
3592 of this title, that the Government, if the defendant
is convicted, will seek to prove as the basis for the death
penalty. The factors for which notice is provided under
this subsection may include factors concerning the effect
of the offense on the victim and the victim’s family. 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) of this section and the defend-
ant is found guilty of an offense described in section 3591
of this title, 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 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;
‘‘(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 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.—At the hearing, information may be presented as
to—
‘‘(1) any matter relating to any mitigating fac-
tor listed in section 3592 of this title and any other
mitigating factor; and
‘‘(2) any matter relating to any aggravating
factor listed in section 3592 of this title for which
notice has been provided under subsection (a) of this
section and (if information is presented relating to
such a listed factor) any other aggravating factor for
which notice has been so provided.
The information presented may include the trial transcript
and exhibits. Any other information relevant to such miti-
gating or aggravating factors may be presented by either
the Government or the defendant. The information pre-
sented by the Government in support of factors concerning
the effect of the offense on the victim and the victim’s
family may include oral testimony, a victim impact state-
ment that identifies the victim of the offense and the na-
ture and extent of harm and loss suffered by the victim
and the victim’s family, and other relevant information.
Information is admissible regardless of its admissibility
under the rules governing admission of evidence at crimi-
nal trials, except that information may be excluded if its
probative value is outweighed by the danger of creating
unfair prejudice, confusing the issues, or misleading the
jury. The attorney for the Government and for the defend-
ant shall be permitted to rebut any information received
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.
‘‘(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 of this title found to exist and any
other aggravating factor for which notice has been pro-
vided under subsection (a) of this section 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 established. A finding with respect to
any aggravating factor must be unanimous. If no aggra-
vating factor set forth in section 3592 of this title 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 of this title 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 under subsection (d) of this section 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 aggravating
factors which outweigh any mitigating factors. In any
other case, it shall not recommend a sentence of death.
The jury shall be instructed that it must avoid any influ-
ence 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, before the return of a finding under subsection (e)
of this section, shall instruct the jury that, in considering
whether a sentence of death is justified, it shall not be
influenced by prejudice or bias relating to the race, color,
religion, national origin, or sex of the defendant or of any
victim and that the jury is not to recommend 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, religion, national origin, or sex of
the defendant or of any victim may be. The jury, upon
return of a finding under subsection (e) of this section,
shall also return to the court a certificate, signed by each
juror, that prejudice or bias relating to the race, color,
religion, national 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 recommendation regarding a sentence for the
crime in question no matter what the race, color, religion,
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) of
this title 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, authorized by
law. Notwithstanding any other provision of law, if the
maximum term of imprisonment for the offense is life im-
prisonment, the court may impose a sentence of life im-
prisonment without the possibility 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 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;
‘‘(3) the procedures employed in the sentencing
hearing; and
‘‘(4) the special findings returned under section
3593(d) of this title.
‘‘(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;
‘‘(B) the evidence and information support
the special findings of the existence of an ag-
gravating factor or factors; and
‘‘(C) the proceedings did not involve any
other prejudicial error requiring reversal of the
sentence that was properly preserved for and
raised on appeal;
it shall affirm the sentence.
‘‘(2) In any other case, the court of appeals
shall remand the case for reconsideration under sec-
tion 3593 of this title or for imposition of another
authorized sentence as appropriate, except that the
court shall not reverse a sentence of death on the
ground that an aggravating factor was invalid or
was not supported by the evidence and information
if at least one aggravating factor required to be con-
sidered under section 3592 of this title remains
which was found to exist and the court, on the basis
of the evidence submitted at trial and the informa-
tion submitted at the sentencing hearing, finds no
mitigating factor or finds that the remaining aggra-
vating factor or factors which were found to exist
outweigh any mitigating factors.
‘‘(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.
‘‘§ 3596. Implementation of a sentence of death
‘‘(a) IN GENERAL.—A person who has been sen-
tenced to death under 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 so provide, and the sentence shall be imple-
mented in the manner prescribed by such law.
‘‘(b) SPECIAL BARS TO EXECUTION.—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) EMPLOYEES MAY DECLINE TO PARTICIPATE.—
No employee of any State department of corrections, 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 execu-
tion carried out 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 ‘partici-
pate in any execution’ includes personal preparation of the
condemned individual and the apparatus used for the exe-
cution, 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 an official employs for the purpose, and
shall pay the costs thereof in an amount approved by the
Attorney General.
‘‘§ 3598. Appointment of counsel
‘‘(a) REPRESENTATION
OF
INDIGENT
DEFEND-
ANTS.—Notwithstanding any other provision of law, this
section 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 rep-
resentation. Such a defendant shall be entitled to appoint-
ment of counsel from the commencement of trial proceed-
ings until one of the conditions specified in section
3599(b) of this title has occurred.
‘‘(b) REPRESENTATION BEFORE FINALITY OF JUDG-
MENT.—A defendant within the scope of this section shall
have counsel appointed for trial representation as provided
in section 3005 of this title. At least one counsel so ap-
pointed shall continue to represent the defendant until the
conclusion of direct review of the judgment, unless re-
placed by the court with other qualified counsel.
‘‘(c) REPRESENTATION AFTER FINALITY OF JUDG-
MENT.—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 seek-
ing direct review in the court of appeals or the Supreme
Court, the Government shall promptly notify the district
court that imposed the sentence. Not later than 10 days
after receipt of such notice, the district court shall proceed
to make a determination whether the defendant is eligible
under this section for appointment of counsel for subse-
quent proceedings. On the basis of the determination, the
court shall issue an order—
‘‘(1) appointing one or more counsel to rep-
resent the defendant upon a finding that the defend-
ant is financially unable to obtain adequate rep-
resentation and wishes to have counsel appointed or
is unable competently to decide whether to accept or
reject appointment of counsel;
‘‘(2) finding, after a hearing if necessary, that
the defendant rejected appointment of counsel and
made the decision with an understanding of its legal
consequences; or
‘‘(3) denying the appointment of counsel upon
a finding that the defendant is financially able to ob-
tain adequate representation.
Counsel appointed pursuant to this subsection shall be dif-
ferent 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 earlier represen-
tation.
‘‘(d) STANDARDS FOR COMPETENCE OF COUNSEL.—
In relation to a defendant who is entitled to appointment
of counsel under this section, at least one counsel ap-
pointed 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 fed-
eral district courts. If new counsel is appointed after judg-
ment, at least one counsel so appointed must have been
admitted to the bar for at least five years and have at
least three 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 back-
ground, 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 na-
ture of the litigation.
‘‘(e) APPLICABILITY OF CRIMINAL JUSTICE ACT.—
Except as otherwise provided in this section, section
3006A of this title applies to appointments under this sec-
tion.
‘‘(f) CLAIMS OF INEFFECTIVENESS OF COUNSEL.—
The ineffectiveness or incompetence of counsel during pro-
ceedings on a motion under section 2255 of title 28, in
a capital case shall not be a ground for relief from the
judgment or sentence in any proceeding. This limitation
shall not preclude the appointment of different counsel at
any stage of the proceedings.
‘‘§ 3599. Collateral attack on judgment imposing sen-
tence of death
‘‘(a) TIME FOR MAKING SECTION 2255 MOTION.—
In a case in which sentence of death has been imposed,
and the judgment has become final as described in section
3598(c) of this title, a motion in the case under section
2255 of title 28, must be filed not later than 90 days after
the issuance of the order relating to appointment of coun-
sel under section 3598(c) 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 60 days. A mo-
tion described in this section shall have priority over all
noncapital 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
of the judgment and during the litigation of an initial mo-
tion in the case under section 2255 of title 28. The stay
shall run continuously following imposition of the sen-
tence, and shall expire if—
‘‘(1) the defendant fails to file a motion under
section 2255 of title 28, within the time specified in
subsection (a) of this section, or fails to make a
timely application for court of appeals review follow-
ing the denial of such motion by a district court; or
‘‘(2) upon completion of district court and court
of appeals review under section 2255 of title 28, the
motion under that section is denied and—
‘‘(A) the time for filing a petition for cer-
tiorari has expired and no petition has been
filed;
‘‘(B) a timely petition for certiorari was
filed and the Supreme Court denied the peti-
tion; or
‘‘(C) a timely petition for certiorari was
filed and upon consideration of the case, the
Supreme Court disposed of it in a manner that
left the capital sentence undisturbed; or
‘‘(3) before a district court, in the presence of
counsel and after having been advised of the con-
sequences of that waiver, the defendant waives the
right to file a motion under section 2255 of title 28.
‘‘(c) FINALITY OF THE DECISION ON REVIEW.—If
one of the conditions specified in subsection (b) of this
section has occurred, no court thereafter shall have the
authority to enter a stay of execution or grant relief in
the case unless—
‘‘(1) the basis for the stay and request for relief
is a claim not presented in earlier proceedings;
‘‘(2) the failure to raise the claim was—
‘‘(A) the result of governmental action in
violation of the Constitution or laws of the
United States;
‘‘(B) the result of the Supreme Court rec-
ognition of a new Federal right that is retro-
actively applicable; or
‘‘(C) based on a factual predicate that
could not have been discovered through the ex-
ercise 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 with respect to
the offense or offenses for which the death penalty
was imposed.’’; and
(2) in the table of chapters at the beginning of
part II, by adding the following new item after the
item relating to chapter 227:
‘‘228. Death penalty procedures ................................................... 3591.’’.
SEC. 3. CONFORMING AMENDMENT RELATING TO KIDNAP-
PING.
Section 1201(g)(1) of title 18, United States Code,
is amended by inserting ‘‘to the penalty of death if the
death of the victim results and, in any other case,’’ after
‘‘shall be subject’’.