Federal Death Penalty Act of 1991

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S 147 IS
102d CONGRESS
1st Session
S. 147
To establish constitutional procedures for the imposition of the sentence
of death, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 14 (legislative day, JANUARY 3), 1991
Mr. THURMOND (for himself, Mr. HATCH, Mr. DECONCINI, Mr. GRASSLEY, Mr. D'AMATO,
Mr. SIMPSON, Mr. DOMENICI, Mr. BOREN, Mr. GRAMM, Mr. REID, Mr. MCCAIN,
Mr. KASTEN, Mr. LOTT, Mr. MCCONNELL, Mr. SYMMS, Mr. BURNS, and Mr. SMITH)
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 1991'.
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:
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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