I
103D CONGRESS
2D SESSION
H. R. 4035
To establish constitutional procedures for the imposition of the death penalty.
IN THE HOUSE OF REPRESENTATIVES
MARCH 15, 1994
Mr. EDWARDS of California (for himself and Mr. SCHUMER) introduced the
following bill; which was referred to the Committee on the Judiciary
A BILL
To establish constitutional procedures for the imposition of
the death penalty.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. CONSTITUTIONAL PROCEDURES FOR THE IM-
POSITION OF THE SENTENCE OF DEATH.
Part II of title 18 of the United States Code is
amended by adding the following new chapter after chap-
ter 227:
‘‘CHAPTER 228—DEATH SENTENCE
‘‘Sec.
‘‘3591. Sentence of death.
‘‘3592. Mitigating and aggravating 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.
‘‘(3) MINOR PARTICIPATION.—The defendant is
punishable as a principal (as defined in section 2 of
title 18 of the United States Code) in the offense,
which was committed by another, but the defend-
ant’s participation was relatively minor, regardless
of whether the participation was so minor as to con-
stitute a defense to the charge.
‘‘(4) EQUALLY CULPABLE DEFENDANTS.—An-
other defendant or defendants, equally culpable in
the crime, will not be punished by death.
‘‘(5) NO PRIOR CRIMINAL RECORD.—The de-
fendant did not have a significant prior history of
other criminal conduct.
‘‘(6) DISTURBANCE.—The defendant committed
the offense under severe mental or emotional dis-
turbance.
‘‘(7) VICTIM’S CONSENT.—The victim consented
to the criminal conduct that resulted in the victim’s
death.
‘‘(8) OTHER
FACTORS.—Other factors in the
defendant’s background, record, or character or any
other circumstance of the offense that mitigate
against imposition of the death sentence.
‘‘(b) AGGRAVATING FACTORS FOR ESPIONAGE AND
TREASON.—In determining whether a sentence of death
is justified for an offense described in section 3591(1), the
jury, or if there is no jury, the court, shall consider each
of the following aggravating factors for which notice has
been given and determine which, if any, exist:
‘‘(1) PRIOR
ESPIONAGE
OR
TREASON
OF-
FENSE.—The defendant has previously been con-
victed of another offense involving espionage or trea-
son for which a sentence of either life imprisonment
or death was authorized by law.
‘‘(2) GRAVE RISK TO NATIONAL SECURITY.—In
the commission of the offense the defendant know-
ingly created a grave risk of substantial danger to
the national security.
‘‘(3) GRAVE RISK OF DEATH.—In the commis-
sion of the offense the defendant knowingly created
a grave risk of death to another person.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor for which notice has
been given exists.
‘‘(c) AGGRAVATING FACTORS
FOR HOMICIDE.—In
determining whether a sentence of death is justified for
an offense described in section 3591(2), the jury, or if
there is no jury, the court, shall consider each of the fol-
lowing aggravating factors for which notice has been given
and determine which, if any, exist:
‘‘(1) DEATH DURING COMMISSION OF ANOTHER
CRIME.—The death, or injury resulting in death, oc-
curred during the commission or attempted commis-
sion of, or during the immediate flight from the
commission of, an offense under section 32 (destruc-
tion of aircraft or aircraft facilities), section 33 (de-
struction of motor vehicles or motor vehicle facili-
ties), section 36 (violence at international airports),
section 351 (violence against Members of Congress,
Cabinet officers, or Supreme Court Justices), an of-
fense under section 751 (prisoners in custody of in-
stitution or officer), section 794 (gathering or deliv-
ering defense information to aid foreign govern-
ment), section 844(d) (transportation of explosives
in interstate commerce for certain purposes), section
844(f) (destruction of Government property by ex-
plosives), section 1118 (prisoners serving life term),
section 1201 (kidnapping), section 844(i) (destruc-
tion of property affecting interstate commerce by ex-
plosives), section 1116 (killing or attempted killing
of diplomats), section 1203 (hostage taking), section
1992 (wrecking trains), section 2280 (maritime vio-
lence), section 2281 (maritime platform violence),
section 2332 (terrorist acts abroad against United
States nationals), section 2339 (use of weapons of
mass destruction), or section 2381 (treason) of this
title, or section 902 (i) or (n) of the Federal Avia-
tion Act of 1958 (49 U.S.C. 1472 (i) or (n)) (air-
craft piracy).
‘‘(2) PREVIOUS CONVICTION OF VIOLENT FEL-
ONY INVOLVING FIREARM.—For any offense, other
than an offense for which a sentence of death is
sought on the basis of section 924(c) of this title, as
amended by this Act, the defendant has previously
been convicted of a Federal or State offense punish-
able by a term of imprisonment of more than one
year, involving the use or attempted or threatened
use of a firearm, as defined in section 921 of this
title, against another person.
‘‘(3) PREVIOUS CONVICTION OF OFFENSE FOR
WHICH A SENTENCE OF DEATH OR LIFE IMPRISON-
MENT WAS AUTHORIZED.—The defendant has pre-
viously been convicted of another Federal or State
offense resulting in the death of a person, for which
a sentence of life imprisonment or a sentence of
death was authorized by statute.
‘‘(4) PREVIOUS CONVICTION OF OTHER SERI-
OUS OFFENSES.—The defendant has previously been
convicted of two or more Federal or State offenses,
punishable by a term of imprisonment of more than
one year, committed on different occasions, involving
the infliction of, or attempted infliction of, serious
bodily injury or death upon another person.
‘‘(5) GRAVE RISK OF DEATH TO ADDITIONAL
PERSONS.—The defendant, in the commission of the
offense, or in escaping apprehension for the violation
of the offense, knowingly created a grave risk of
death to one or more persons in addition to the vic-
tim of the offense.
‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER
OF COMMITTING OFFENSE.—The defendant commit-
ted the offense in an especially heinous, cruel, or de-
praved manner in that it involved torture or serious
physical abuse to the victim.
‘‘(7) 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.
‘‘(8) PECUNIARY
GAIN.—The defendant com-
mitted the offense as consideration for the receipt,
or in the expectation of the receipt, of anything of
pecuniary value.
‘‘(9) 
SUBSTANTIAL
PLANNING
AND
PREMEDITATION.—The defendant committed the of-
fense after substantial planning and premeditation
to cause the death of a person or commit an act of
terrorism.
‘‘(10) CONVICTION FOR TWO FELONY DRUG OF-
FENSES.—The defendant has previously been con-
victed of two or more State or Federal offenses pun-
ishable by a term of imprisonment of more than one
year, committed on different occasions, involving the
distribution of a controlled substance.
‘‘(11) VULNERABILITY OF VICTIM.—The victim
was particularly vulnerable due to old age, youth, or
infirmity.
‘‘(12) CONVICTION
FOR
SERIOUS
FEDERAL
DRUG
OFFENSES.—The defendant had previously
been convicted of violating title II or title III of the
Controlled Substances Act for which a sentence of 5
or more years may be imposed or had previously
been convicted of engaging in a continuing criminal
enterprise.
‘‘(13) CONTINUING CRIMINAL ENTERPRISE IN-
VOLVING DRUG SALES TO MINORS.—The defendant
committed the offense in the course of engaging in
a continuing criminal enterprise in violation of sec-
tion 408(c) of the Controlled Substances Act and
that violation involved the distribution of drugs to
persons under the age of 21 in violation of section
418 of such Act.
‘‘(14) HIGH PUBLIC OFFICIALS.—The defend-
ant committed the offense against—
‘‘(A) the President of the United States,
the President-elect, the Vice President, the
Vice-President-elect, 
the 
Vice-President-des-
ignate, or, if there is no Vice President, the of-
ficer next in order of succession to the office of
the President of the United States, or any per-
son who is acting as President under the Con-
stitution and laws of the United States;
‘‘(B) a Chief of State, head of government,
or the political equivalent, of a foreign nation;
‘‘(C) a foreign official listed in section
1116(b)(3)(A) of this title, if the official is in
the United States on official business; or
‘‘(D) a Federal public servant who is a
judge, a law enforcement officer, or an em-
ployee of a United States penal or correctional
institution—
‘‘(i) while he or she is engaged in the
performance of his or her official duties;
‘‘(ii) because of the performance of his
or her official duties; or
‘‘(iii) because of his or her status as
a public servant.
For purposes of this subparagraph, a ‘law en-
forcement officer’ is a public servant authorized
by law or by a Government agency or Congress
to conduct or engage in the prevention, inves-
tigation, or prosecution or adjudication of an
offense, and includes those engaged in correc-
tions, parole, or probation functions.
‘‘(15) PRIOR CONVICTION OF SEXUAL ASSAULT
OR CHILD MOLESTATION.—In the case of an offense
under chapter 109A (sexual abuse) or chapter 110
(sexual abuse of children), the defendant has pre-
viously been convicted of a crime of sexual assault
or crime of child molestation.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor for which notice has
been given exists.
‘‘§ 3593. Special hearing to determine whether a sen-
tence of death is justified
‘‘(a) NOTICE BY THE GOVERNMENT.—If, in a case
involving an offense described in section 3591, the attor-
ney for the government believes that the circumstances of
the offense are such that a sentence of death is justified
under this chapter, the attorney shall, a reasonable time
before the trial or before acceptance by the court of a plea
of guilty, sign and file with the court, and serve on the
defendant, a notice—
‘‘(1) stating that the government believes that
the circumstances of the offense are such that, if the
defendant is convicted, a sentence of death is justi-
fied under this chapter and that the government will
seek the sentence of death; and
‘‘(2) setting forth the aggravating factor or fac-
tors that the government, if the defendant is con-
victed, proposes to prove as justifying a sentence of
death.
The factors for which notice is provided under this sub-
section may include factors concerning the effect of the
offense on the victim and the victim’s family, and may
include oral testimony, a victim impact statement that
identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim and
the victim’s family, and any other relevant information.
The court may permit the notice to include any aggravat-
ing factor that is not an element of the underlying offense.
The court may also permit the attorney for the govern-
ment to amend the notice upon a showing of good cause.
‘‘(b) HEARING BEFORE A COURT OR JURY.—If the
attorney for the government has filed a notice as required
under subsection (a) and the defendant is found guilty of
or pleads guilty to an offense described in section 3591,
the judge who presided at the trial or before whom the
guilty plea was entered, or another judge if that judge is
unavailable, shall conduct a separate sentencing hearing
to determine the punishment to be imposed. 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 this section is necessary; or
‘‘(3) before the court alone, upon the 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.—Notwithstanding rule 32(c) of the Federal Rules
of Criminal Procedure, when a defendant is found guilty
or pleads guilty to an offense under section 3591, no
presentence report shall be prepared. At the sentencing
hearing, information may be presented as to any matter
relevant to the sentence, including any mitigating or ag-
gravating factor permitted or required to be considered
under section 3592. Information presented may include
the trial transcript and exhibits if the hearing is held be-
fore a jury or judge not present during the trial. The de-
fendant may present any information relevant to a miti-
gating factor. The government may present any informa-
tion relevant to an aggravating factor for which notice has
been provided under subsection (a). The government and
the defendant shall be permitted to rebut any information
received at the hearing, and shall be given fair opportunity
to present argument as to the adequacy of the information
to establish the existence of any aggravating or mitigating
factor, and as to the appropriateness in the case of impos-
ing a sentence of death. 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 any aggravat-
ing factor is on the government, and is not satisfied unless
the existence of such a factor is established beyond a rea-
sonable doubt. The burden of establishing the existence
of any mitigating factor is on the defendant, and is not
satisfied unless the existence of such a factor is established
by a preponderance of the information.
‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or
if there is no jury, the court, shall consider all the 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 1 or more members
of the jury, and any member of the jury who finds the
existence of a mitigating factor may consider such factor
established for purposes of this section regardless of the
number of jurors who concur that the factor has been 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, in the case of—
‘‘(1) an offense described in section 3591(1), an
aggravating factor required to be considered under
section 3592(b) is found to exist; or
‘‘(2) an offense described in section 3591(2), an
aggravating factor required to be considered under
section 3592(c) is found to exist,
the jury, or if there is no jury, the court, shall consider
whether all the aggravating factor or factors found to exist
sufficiently outweigh all the mitigating factor or factors
found to exist to justify a sentence of death, or, in the
absence of a mitigating factor, whether the aggravating
factor or factors alone are sufficient to justify a sentence
of death. Based upon this consideration, the jury by unan-
imous vote, or if there is no jury, the court, shall rec-
ommend whether the defendant should be sentenced to
death, to life imprisonment without possibility of release,
or to some other lesser sentence. The jury or the court,
if there is no jury, regardless of its findings with respect
to aggravating and mitigating factors, is never required
to impose a death sentence and the jury shall be so in-
structed.
‘‘(f) SPECIAL PRECAUTION TO ENSURE 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-
gious beliefs, national origin, or sex of the defendant or
any victim may be.
‘‘§ 3594. Imposition of a sentence of death
‘‘Upon a recommendation under section 3593(e) that
the defendant should be sentenced to death or life impris-
onment without possibility of release, the court shall sen-
tence the defendant accordingly. Otherwise, the court shall
impose any lesser sentence that is authorized by law. Not-
withstanding any other provision of law, if the maximum
term of imprisonment for the offense is life imprisonment,
the court may impose a sentence of life imprisonment
without 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 must be filed within the time specified for the filing
of a notice of appeal. An appeal under this section may
be consolidated with an appeal of the judgment of convic-
tion and shall have priority over all other cases.
‘‘(b) REVIEW.—The court of appeals shall review the
entire record in the case, including—
‘‘(1) the evidence submitted during the trial;
‘‘(2) the information submitted during the sen-
tencing hearing;
‘‘(3) the procedures employed in the sentencing
hearing; and
‘‘(4) the special findings returned under section
3593(d).
‘‘(c) DECISION AND DISPOSITION.—
‘‘(1) The court of appeals shall address all sub-
stantive and procedural issues raised on the appeal
of a sentence of death, and shall consider whether
the sentence of death was imposed under the influ-
ence of passion, prejudice, or any other arbitrary
factor and whether the evidence supports the special
finding of the existence of an aggravating factor re-
quired to be considered under section 3592.
‘‘(2) Whenever the court of appeals finds
that—
‘‘(A) the sentence of death was imposed
under the influence of passion, prejudice, or any
other arbitrary factor;
‘‘(B) the admissible evidence and informa-
tion adduced does not support the special find-
ing of the existence of the required aggravating
factor; or
‘‘(C) the proceedings involved any other
legal error requiring reversal of the sentence
that was properly preserved for appeal under
the rules of criminal procedure,
the court shall remand the case for reconsideration
under section 3593 or imposition of a sentence other
than death.
‘‘(3) The court of appeals shall state in writing
the reasons for its disposition of an appeal of a sen-
tence of death under this section.
‘‘§ 3596. Implementation of a sentence of death
‘‘(a) IN GENERAL.—A person who has been sen-
tenced to death pursuant to the provisions of this chapter
shall be committed to the custody of the Attorney General
until exhaustion of the procedures for appeal of the judg-
ment 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 implemen-
tation of the sentence in the manner prescribed by the law
of the State in which the sentence is imposed. If the law
of such State does not provide for implementation of a
sentence of death, the court shall designate another State,
the law of which does provide for the implementation of
a sentence of death, and the sentence shall be implemented
in the latter State in the manner prescribed by such law.
‘‘(b) PREGNANT WOMAN.—A sentence of death shall
not be carried out upon a woman while she is pregnant.
‘‘(c) MENTAL CAPACITY.—A sentence of death shall
not be carried out upon a person who is mentally retarded.
A sentence of death shall not be carried out upon a person
who, as a result of mental disability, lacks the mental ca-
pacity to understand the death penalty and why it was
imposed on that person.
‘‘§ 3597. Use of State facilities
‘‘(a) IN
GENERAL.—A United States marshal
charged with supervising the implementation of a sentence
of death may use appropriate State or local facilities for
the 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.
‘‘(b) EXCUSE OF AN EMPLOYEE ON MORAL OR RELI-
GIOUS GROUNDS.—No employee of any State department
of corrections, the United States Department of Justice,
the Federal Bureau of Prisons, or the United States Mar-
shals Service, and no employee 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
prosecution or execution under this section if such partici-
pation is contrary to the moral or religious convictions of
the employee. For purposes of this subsection, the term
‘participation’ includes personal preparation of the con-
demned individual and the apparatus used for execution
and supervision of the activities of other personnel in car-
rying out such activities.
‘‘§ 3598. Special provisions for Indian country
‘‘Notwithstanding sections 1152 and 1153, no person
subject to the criminal jurisdiction of an Indian tribal gov-
ernment shall be subject to a capital sentence under this
chapter for any offense the Federal jurisdiction for which
is predicated solely on Indian country as defined in section
1151 of this title, and which has occurred within the
boundaries of such Indian country, unless the governing
body of the tribe has elected that this chapter have effect
over land and persons subject to its criminal jurisdiction.’’.
(b) AMENDMENT
OF
CHAPTER
ANALYSIS.—The
chapter analysis of part II of title 18, United States Code,
is amended by adding the following new item after the
item relating to chapter 227:
‘‘228. Death sentence ........................................................................ 3591.’’.
Æ
HR 4035 IH——2