[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 49 Introduced in Senate (IS)]
103d CONGRESS
1st Session
S. 49
To establish constitutional procedures for the imposition of the
sentence of death, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 21 (legislative day, January 5), 1993
Mr. Thurmond (for himself and Mr. DeConcini) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To establish constitutional procedures for the imposition of the
sentence of death, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Death Penalty Act of 1993''.
SEC. 2. CONSTITUTIONAL PROCEDURES FOR THE IMPOSITION OF THE SENTENCE OF
DEATH.
(a) In General.--Part II of title 18 of the United States Code is
amended by adding the following new chapter after chapter 227:
``CHAPTER 228--DEATH SENTENCE
``Sec.
``3591. Sentence of death.
``3592. Factors to be considered in determining whether a sentence of
death is justified.
``3593. Special hearing to determine whether a sentence of death is
justified.
``3594. Imposition of a sentence of death.
``3595. Reveiw of a sentence of death.
``3596. Implementation of a sentence of death.
``3597. Use of State facilities.
``Sec. 3591. Sentence of death
``A defendant who has been found guilty of--
``(a) an offense described in section 794 or section 2381
of this title;
``(b) an offense described in section 1751(c) of this
title, if the offense, as determined beyond a reasonable doubt
at the hearing under section 3593, constitutes an attempt to
kill the President of the United States and results in bodily
injury to the President or comes dangerously close to causing
the death of the President; or
``(c) any other offense for which a sentence of death is
provided, if the defendant, as determined beyond a reasonable
doubt at the hearing under section 3593--
``(1) intentionally killed the victim;
``(2) intentionally inflicted serious bodily injury
that resulted in the death of the victim;
``(3) intentionally participated in an act,
contemplating that the life of a person would be taken
or intending that lethal force would be used in
connection with a person, other than one of the
participants in the offense, and the victim died as a
direct result of the act; or
``(4) intentionally and specifically engaged in an
act, knowing that the act created a grave risk of death
to a person, other than one of the participants in the
offense, such that participation in the act constituted
a reckless disregard for human life and the victim died
as a direct result of the act,
shall be sentenced to death if, after consideration of the factors set
forth in section 3592 in the course of a hearing held pursuant to
section 3593, it is determined that imposition of a sentence of death
is justified; provided that no person may be sentenced to death who was
less than 16 years of age at the time of the offense.
``Sec. 3592. Factors to be considered in determining whether a sentence
of death is justified
``(a) Mitigating Factors.--In determining whether 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) the defendant's mental capacity was significantly
impaired, although the impairment was not such as to constitute
a defense to prosecution;
``(2) the defendant was under unusual and substantial
duress, although not such duress as would constitute a defense
to prosecution; and
``(3) the defendant was an accomplice whose participation
in the offense was relatively minor.
The jury, or if there is no jury, the court, shall consider whether any
other mitigating factor exists.
``(b) Aggravating Factors for Espionage and Treason.--In
determining whether a sentence of death is justified for an offense
described in section 3591(a), 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) the defendant has previously been convicted of
another offense involving espionage or treason for which either
a sentence of life imprisonment or death was authorized by
statute;
``(2) in the commission of the offense the defendant
knowingly created a grave risk of substantial danger to the
national security; and
``(3) in the commission 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 exists.
``(c) Aggravating Factors for Homicide and for Attempted Murder of
the President.--In determining whether a sentence of death is justified
for an offense described in section 3591(b) or (c), 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) the death, or injury resulting in death, occurred
during the commission or attempted commission of, or during the
immediate flight from the commission of, an offense under
section 751 (prisoners in custody of institution or officer),
section 794 (gathering or delivering defense information to aid
foreign government), section 844(d) (transportation of
explosives in interstate commerce for certain purposes),
section 844(f) (destruction of Government property in
interstate commerce by explosives), section 1118 (prisoners
serving life term), section 1201 (kidnaping), or section 2381
(treason) of this title, or section 902 (i) or (n) of the
Federal Aviation Act of 1958, as amended (49 U.S.C. 1472 (i) or
(n)) (aircraft piracy);
``(2) the defendant has previously 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;
``(3) 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;
(4) 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 victim of the offense;
``(5) the defendant committed the offense in an especially
heinous, cruel, or depraved manner;
``(6) the defendant procured the commission of the offense
by payment, or promise of payment, of anything of pecuniary
value;
``(7) the defendant committed the offense as consideration
for the receipt, or in the expectation of the receipt, of
anything of pecuniary value;
``(8) the defendant committed the offense after planning
and premeditation to cause the death of a person or commit an
act of terrorism;
``(9) the defendant has previously been convicted of two or
more State or Federal offenses punishable by a term of
imprisonment of more than one year, committed on different
occasions, involving the distribution of a controlled
substance;
``(10) the victim was particularly vulnerable due to old
age, youth, or infirmity;
``(11) 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;
``(12) the defendant committed the offense against--
``(A) the President of the United States, the
President-elect, the Vice President, the Vice-
President-elect, the Vice-President-designate, or, if
there is no Vice President, the officer next in order
of succession to the office of the President of the
United States, or any person who is acting as President
under the Constitution 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 he is in the United
States on official business; or
``(D) a Federal public servant who is a judge, a
law enforcement officer, or an employee of a United
States penal or correctional institution--
``(i) while he is engaged in the
performance of his official duties;
``(ii) because of the performance of his
official duties; or
``(iii) because of his status as a public
servant.
For purposes of this subparagraph, a `law enforcement
officer' is a public servant authorized by law or by a
Government agency or Congress to conduct or engage in
the prevention, investigation, or prosecution of an
offense.
The jury, or if there is no jury, the court, may consider whether any
other aggravating factor exists.
``Sec. 3593. Special hearing to determine whether a sentence of death
is justified
``(a) Notice by the Government.--If, in a case involving an offense
described in section 3591, the attorney for the government believes
that the circumstances of the offense are such that a sentence of death
is justified under this chapter, he shall, 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, sign and file with the court, and serve on the defendant, a
notice--
``(1) stating that the goverment believes that the
circumstances of the offense are such that, if the defendant is
convicted, a sentence of death is justified under this chapter
and that the government will seek the sentence of death; and
``(2) setting forth the aggravating factor or factors that
the government, if the defendant is convicted, proposes to
prove as justifying a sentence of death.
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.--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 defendant'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 defendant's
guilt was discharged for good cause; or
``(D) after initial imposition of a sentence under
this section, reconsideration of the sentence 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 twelve
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 Factors.--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 aggravating factor permitted or required to
be considered under section 3592. Information presented may include the
trial transcript and exhibits if the hearing is held before a jury or
judge not present during the trial. Any other information relevant to a
mitigating or aggravating factor may be presented by either the
attorney for 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 substantially outweighed by the danger of creating
unfair prejudice, confusing the issues, or misleading the jury. 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 imposing 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 aggravating
factor is on the government, and is not satisfied unless the existence
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 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 information received during the
hearing. It shall return a special finding as to each mitigating and
aggravating factor, concerning which information is presented at the
hearing, required to be considered under section 3592. The jury must
find the existence of an aggravating factor by a unanimous vote,
although it is unnecessary that there be a unanimous vote on any
specific or aggravating factor if a majority of the jury finds the
existence of such a specific factor. 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 a factor established for purposes of this section,
regardless of the number of jurors who consider that the factor has
been established.
``(e) Return of a Finding Concerning a Sentence of Death.--If, in
the case of--
``(1) an offense described in section 3591(a), an
aggravating factor required to be considered under section
3592(b) is found to exist; or
``(2) an offense described in section 3591 (b) or (c), 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 then consider
whether all the aggravating factors found to exist sufficiently
outweigh all the mitigating factors found to exist to justify a
sentence of death, or, in the absence of a mitigating factor, whether
the aggravating factors alone are sufficient to justify a sentence of
death. Based upon this consideration, the jury by unanimous vote, or if
there is no jury, the court, shall return a finding as to whether a
sentence of death is justified.
``(f) Special Precaution To Assure Against Discrimination.--In a
hearing held before a jury, the court, prior to the return of a finding
under subsection (e), shall instruct the jury that, in considering
whether a sentence of death is justified, it shall not consider the
race, color, national origin, creed, or sex of the defendant. The jury,
upon return of a finding under subsection (e), shall also return to the
court a certificate, signed by each juror, that consideration of the
race, color, national origin, creed, or sex of the defendant was not
involved in reaching the juror's individual decision.
``Sec. 3594. Imposition of a sentence of death
``Upon a finding under section 3593(e) that a sentence of death is
justified, the court shall sentence the defendant to death. Upon a
finding under section 3593(e) that a sentence of death is not
justified, or under section 3593(d) that no aggravating factor required
to be found exists, the court shall impose any sentence other than
death that is authorized by law. Notwithstanding 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 parole.
``Sec. 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
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 sentencing
hearing;
``(3) the procedures employed in the sentencing hearing;
and
``(4) the special findings returned under section 3593(d).
``(c) Decision and Disposition.--
``(1) If the court of appeals determines that--
``(A) the sentence of death was not imposed under
the influence of passion, prejudice, or any other
arbitrary factor; and
``(B) the information supports the special finding
of the existence of an aggravating factor required to
be considered under section 3592;
it shall affirm the sentence.
``(2) In any other case, the court of appeals shall remand
the case for reconsideration under section 3593.
``(3) The court of appeals shall state in writing the
reasons for its disposition of an appeal of a sentence of death
under this section.
``Sec. 3596. Implementation of a sentence of death
``A person who has been sentenced 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
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 implemented in the latter
State in the manner prescribed by such law. A sentence of death shall
not be carried out upon a woman while she is pregnant.
``Sec. 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 Religious Grounds.--No
employee of any State department of corrections or the Federal Bureau
of Prisons and no employee providing services to that department or
bureau under contract shall be required as a condition of that
employment, or contractual obligation to be in attendance at or to
participate in any execution carried out under this section if such
participation is contrary to the moral or religious convictions of the
employee. For purposes of this subsection, the term `participation in
executions' includes personal preparation of the condemned individual
and the apparatus used for execution and supervision of the activities
of other personnel in carrying out such activities.''.
(b) Repeal.--Sections 3566 and 3567 of title 18, United States
Code, are hereby repealed.
(c) Amendments to Chapter Analysis.--(1) 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''.
(2) The section analysis of chapter 227 of title 18, United States
Code, is amended by amending the items relating to sections 3566 and
3567 to read as follows:
``3566. Repealed.
``3567. Repealed.''.
SEC. 3. CONFORMING CHANGES IN TITLE 18.
(a) Aircrafts and Motor Vehicles.--Section 34 of title 18, United
States Code, is amended by striking the comma after ``imprisonment for
life'' and inserting a period and striking the remainder of the
section.
(b) Espionage.--Section 794(a) of title 18, United States Code, is
amended by striking the period at the end of the section and inserting
``, except that the sentence of death shall not be imposed unless the
jury or, if there is no jury, the court, further finds that the offense
directly concerned nuclear weaponry, military spacecraft or satellites,
early warning systems, or other means of defense or retaliation against
large-scale attack; war plans; communications intelligence of
cryptographic information; or any other major weapons system or major
element of defense strategy.''.
(c) Explosive Materials.--(1) Section 844(d) of title 18, United
States Code, is amended by striking ``as provided in section 34 of this
title''.
(2) Section 844(f) of title 18, United States Code, is amended by
striking ``as provided in section 34 of this title''.
(3) Section 844(i) of title 18, United States Code, is amended by
striking the words ``as provided in section 34 of this title''.
(d) Murder.--(1) The second undesignated paragraph of section
1111(b) of title 18, United States Code, is amended to read as follows:
``Whoever is guilty of murder in the first degree shall be punished
by death or by imprisonment for life;''.
(2) Section 1116(a) of title 18, United States Code, is amended by
striking ``any such person who is found guilty of murder in the first
degree shall be sentenced to imprisonment for life, and''.
(e) Kidnapping.--Section 1201(a) of title 18, United States Code,
is amended by inserting after ``or for life'' the following: ``and, if
the death of any person results, shall be punished by death or life
imprisonment''.
(f) Nonmailable Injurious Articles.--The last paragraph of section
1716 of title 18, United States Code, is amended by striking the comma
after ``imprisonment for life'' and inserting a period and striking the
remainder of the paragraph.
(g) Presidential Assassinations.--Subsection (c) of section 1751 of
title 18, United States Code, is amended to read as follows:
``(c) Whoever attempts to kill or kidnap any individual designated
in subsection (a) of this section shall be punished (1) by imprisonment
for any term of years or for life, or (2) by death or imprisonment for
any term of years or for life, if the conduct constitutes an attempt to
kill the President of the United States and results in bodily injury to
the President or otherwise comes dangerously close to causing the death
of the President.''.
(h) Wrecking Trains.--The second to the last undesignated paragraph
of section 1992 of title 18, United States Code, is amended by striking
the comma after ``imprisonment for life'' and inserting a period and
striking the remainder of the section.
(i) Bank Robbery.--Section 2113(e) of title 18, United States Code,
is amended by striking ``or punished by death if the verdict of the
jury shall so direct'' and inserting ``or if death results shall be
punished by death or life imprisonment''.
(j) Hostage Taking. Section 1203(a) of title 18, United States
Code, is amended by inserting after ``or for life'' the following:
``and, if the death of any person results, shall be punished by death
or life imprisonment''.
(k) Racketeering.--(1) Section 1952A(a) of title 18, United States
Code, is amended by striking ``and if death results, shall be subject
to imprisonment for any term of years or for life, or shall be fined
not more than $50,000, or both'' and inserting ``and if death results,
shall be punished by death or life imprisonment, or shall be fined not
more than $250,000, or both''.
(2) Section 1952B(a)(1) of title 18, United States Code, is amended
to read as follows:
``(1) for murder, by death or life imprisonment, or a fine
of not more than $250,000, or both; and for kidnapping, by
imprisonment for any term of years or for life, or a fine of
not more than $250,000, or both;''.
(l) Genocide.--Section 1091(b)(1) of title 18, United States Code,
is amended by striking ``a fine of not more than $1,000,000 or
imprisonment for life,'' and inserting ``, where death results, a fine
of not more than $1,000,000, or imprisonment for life or a sentence of
death.''.
SEC. 4. CONFORMING AMENDMENT TO FEDERAL AVIATION ACT OF 1954.
Section 903 of the Federal Aviation Act of 1958, as amended (49
U.S.C. 1473), is amended by striking subsection (c).
SEC. 5. CONTROLLED SUBSTANCES ACT.
Section 408 of the Controlled Substances Act (21 U.S.C. 848) is
amended by striking subsections (g) through (r).
SEC. 6. APPLICABILITY TO UNIFORM CODE OF MILITARY JUSTICE.
The provisions of chapter 228 of title 18, United States Code, as
added by this Act, shall not apply to prosecutions under the Uniform
Code of Military Justice (10 U.S.C. 801).
SEC. 7. MURDER BY A FEDERAL PRISONER.
(a) In General.--Chapter 51 of title 18, United States Code, is
amended by adding at the end thereof the following:
``Sec. 1118. Murder by a Federal prisoner
``(a) Whoever, while confined in a Federal correctional institution
under a sentence for a term of life imprisonment, murders another shall
be punished by death or by life imprisonment without the possibility of
parole.
``(b) For the purposes of this section--
``(1) the term `Federal correctional institution' means any
Federal prison, Federal correctional facility, Federal
community program center, or Federal halfway house;
``(2) the term `term of life imprisonment' means a sentence
for the term of natural life, a sentence commuted to natural
life, an indeterminate term of a minimum of at least fifteen
years and a maximum of life, or an unexecuted sentence of
death; and
``(3) the term `murders' means committing first degree or
second degree murder as defined by section 1111 of this
title.''.
(b) Amendment to Chapter Analysis.--The chapter analysis for
chapter 51 of title 18, United States Code, is amended by adding at the
end thereof the following:
``1118. Murder by a Federal prisoner.''.
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