Drug Kingpin Death Penalty Act

<pre> 
S 105 IS
102d CONGRESS
1st Session
S. 105
Entitled the `Drug Kingpin Death Penalty Act'.
IN THE SENATE OF THE UNITED STATES
January 14 (legislative day, JANUARY 3), 1991
Mr. D'AMATO (for himself, Mr. DOLE, Mr. DECONCINI, Mr. THURMOND, Mr. MCCONNELL,
Mr. HELMS, Mr. LOTT, Mr. HEINZ, and Mr. DOMENICI) introduced the following
bill; which was read twice and referred to the Committee on the Judiciary
A BILL
Entitled the `Drug Kingpin Death Penalty Act'.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SEC  . SHORT TITLE.
  This Act may be cited as the `Drug Kingpin Death Penalty Act'.
SEC.  . DEATH PENALTY AUTHORIZATIONS AND PROCEDURES.
  Title 18 of the United States Code is amended--
  (1) by adding the following new chapter after chapter 227:
`CHAPTER 228--DEATH PENALTY
`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. Review of a sentence of death.
`3596. Implementation of sentence of death.
`3597. Use of State facilities.
`3598. Appointment of counsel.
`3599. Collateral Attack on Judgment Imposing Sentence of Death.
`Sec. 3591. Sentence of death
  `A defendant who has been found guilty of--
  `(1) an offense referred to in section 408(c)(1) of the Controlled
  Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing
  criminal enterprise offense under the conditions described in subsection
  (b) of that section;
  `(2) an offense referred to in section 408(c)(1) of the Controlled
  Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing
  criminal enterprise offense under that section, where the defendant is a
  principal administrator, organizer or leader of such an enterprise, and
  the defendant, in order to obstruct the investigation or prosecution of
  the enterprise or an offense involved in the enterprise, attempts to kill
  or knowingly directs, advises, authorizes, or assists another to attempt
  to kill any public officer, juror, witness, or member of the family or
  household of such a person; or
  `(3) an offense constituting a felony violation of the Controlled Substances
  Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export
  Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46
  U.S.C. App. 1901 et seq.), where the defendant, intending to cause death or
  acting with reckless disregard for human life, engages in such a violation,
  and the death of another person results in the course of the violation or
  from the use of the controlled substance involved in the violation;
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 eighteen
years of age at the time of the offense: And provided further, That if a
defendant described in section 3591 (b) or (c), is not sentenced to death,
said defendant shall be sentenced to life in prison.
`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 an offense described in section 3591, 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 requirements
  of law was significantly impaired, regardless of whether the capacity was
  so impaired as to constitute a defense to the charge.
  `(2) DURESS- The defendant was under unusual 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 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 defendant's
  participation was relatively minor, regardless of whether the participation
  was so minor as to constitute a defense to the charge.
The jury, or if there is no jury, the court, shall consider whether any other
aspect of the defendant's character or record or any other circumstance of
the offense that the defendant may proffer as a mitigating factor exists.
  `(b) AGGRAVATING FACTORS- In determining whether a sentence of death is
  justified for an offense described in section 3591, 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) PREVIOUS CONVICTION OF OFFENSE FOR WHICH A SENTENCE OF DEATH OR LIFE
  IMPRISONMENT WAS AUTHORIZED- 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 death was authorized by statute.
  `(2) PREVIOUS CONVICTIONS OF VIOLENT 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, involving the infliction of, or attempted infliction, serious
  bodily injury or death upon another person.
  `(3) PREVIOUS CONVICTIONS OF DRUG 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, involving the importation, manufacture, or distribution of a
  controlled substance (as defined in section 102 of the Controlled Substances
  Act (21 U.S.C. 802)).
  `(4) PREVIOUS CONVICTIONS OF VIOLENT DRUG OFFENSES- The defendant has
  previously been convicted of a Federal or State offense, punishable by a
  term of imprisonment of more than one year, involving the infliction of, or
  attempted infliction of, serious bodily injury or death upon another person,
  and has previously been convicted of a Federal or State offense, committed
  on a different occasion and punishable by a term of imprisonment of more
  than one year, involving the importation, manufacture, or distribution
  of a controlled substance (as defined in section 102 of the Controlled
  Substances Act (21 U.S.C. 802)).
  `(5) SERIOUS DRUG FELONY CONVICTION- The defendant has previously been
  convicted of another Federal or State offense involving the manufacture,
  distribution, importation, or possession of a controlled substance (as
  defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))
  for which a sentence of five or more years of imprisonment was authorized
  by statute.
  `(6) USE OF FIREARM- In committing the offense, or in furtherance of
  a continuing criminal enterprise of which the offense was a part, the
  defendant used a firearm or knowingly directed, advised, authorized, or
  assisted another to use a firearm, as defined in section 921 of this title,
  to threaten, intimidate, assault, or injure a person.
  `(7) DISTRIBUTION TO PERSONS UNDER TWENTY-ONE- The offense, or a continuing
  criminal enterprise of which the offense was a part, involved a violation
  of section 405 of the Controlled Substances Act (21 U.S.C. 845) which was
  committed directly by the defendant or for which the defendant would be
  liable under section 2 of this title.
  `(8) DISTRIBUTION NEAR SCHOOLS- The offense, or a continuing criminal
  enterprise of which the offense was a part, involved a violation of section
  405A of the Controlled Substances Act (21 U.S.C. 845a) which was committed
  directly by the defendant or for which the defendant would be liable under
  section 2 of this title.
  `(9) USING MINORS IN TRAFFICKING- The offense, or a continuing criminal
  enterprise of which the offense was a part, involved a violation of section
  405B of the Controlled Substances Act (21 U.S.C. 845b) which was committed
  directly by the defendant or for which the defendant would be liable under
  section 2 of this title.
  `(10) LETHAL ADULTERANT- The offense involved the importation, manufacture,
  or distribution, of a controlled substance (as defined in section 102 of the
  Controlled Substances Act (21 U.S.C. 802)) mixed with a potentially lethal
  adulterant, and the defendant was aware of the presence of the adulterant.
The jury, or if there is no jury, the court, may consider whether any other
aggravating factors exist.
Sec. 3593. Special hearing to determine whether a sentence of death is
justified
  `(a) NOTICE BY THE GOVERNMENT- Whenever the Government intends to seek the
  death penalty for an offense described in section 3591, 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--
  `(1) that the Government in the event of conviction will seek the sentence
  of death; and
  `(2) setting forth the aggravating factor or factors enumerated in section
  3592 and any other aggravating factor not specifically enumerated in
  section 3592, that the Government, if the defendant is convicted, will
  seek to prove as the basis for the death penalty.
The court may permit the attorney for the 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 required under subsection (a) and the defendant is found
  guilty of 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. Prior to such a hearing,
  no presentence report shall be prepared by the  United States Probation
  Service, notwithstanding the provisions of the Federal Rules of Criminal
  Procedure. 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 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 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- At the hearing, information
  may be presented as to--
  `(1) any matter relating to any mitigating factor listed in section 3592
  and any other mitigating factor; and
  `(2) any matter relating to any aggravating factor listed in section
  3592 for which notice has been provided under subsection (a)(2) and
  (if information is presented relating to such a listed factor) any other
  aggravating factor for which notice has been so provided.
Information presented may include the trial transcript and exhibits. Any
other information relevant to such mitigating or aggravating factors may
be presented by either the Government or the defendant, regardless of its
admissibility under the rules governing admission of evidence at criminal
trials, except that information may be excluded if its probative value is
outweighed by the danger of creating unfair prejudice, confusing the issues,
or misleading the jury. The attorney for the Government and for 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 that case of imposing a sentence of
death. The attorney for the Government shall open the argument. The defendant
shall be permitted to reply. The Government shall then be permitted to reply
in rebuttal. The burden of establishing the existence of an aggravating
factor is on the Government, and is not satisfied unless the 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 evidence.
  `(d) RETURN OF SPECIAL FINDINGS- The jury, or if there is no jury, the
  court, shall consider all the information received during the hearing. It
  shall return special findings identifying any aggravating factor or factors
  set forth in section 3592 found to exist and any other aggravating 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 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 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 SENTENCE OF DEATH- If an aggravating
  factor required to be considered under section 3592(b) 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 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 influence 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, 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 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, religious beliefs, national
  origin, or sex of the defendant or of any victim may be. 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,
  religious beliefs, 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, religious beliefs,
  national origin, or sex of the defendant or any victim may be.
`Sec. 3594. Imposition of a sentence of death
  `Upon the recommendation under section 3593(e) that a sentence of death
  be imposed, the court shall sentence the defendant to death. Otherwise
  the court shall impose a sentence, other than death, 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 the possibility of release or furlough.
`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 of the sentence must be filed within
  the time specified 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 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 evidence and information support the special findings of the
  existence of an aggravating factor or factors;
it shall affirm the sentence.
  `(2) In any other case, the court of appeals shall remand the case for
  reconsideration under section 3593 or for imposition of another authorized
  sentence as appropriate.
  `(3) The court of appeals shall state in writing the reasons for its
  disposition of an appeal of sentence of death under this section.
`Sec. 3596. Implementation of sentence of death
  `(a) 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 manner prescribed by such law.
  `(b) 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) 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 `participate in any execution' includes
  personal preparation of the condemned individual and the apparatus used
  for the execution, and supervision of the activities of other personnel
  in carrying out such activities.
`Sec. 3597. Use of State facilities
  `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 as an official employed for the purpose, and shall
  pay the costs thereof in an amount approved by the Attorney General.
`Sec. 3598. Appointment of counsel
  `(a) Federal Capital Cases-
  `(1) REPRESENTATION OF INDIGENT DEFENDANTS- Notwithstanding any other
  provision of law, this subsection 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 representation. Such a defendant shall be entitled to appointment
  of counsel from the commencement of trial proceedings until one of the
  conditions specified in section 3599(b) of this title has occurred.
  `(2) REPRESENTATION BEFORE FINALITY OF JUDGMENT- A defendant within
  the scope of this subsection shall have counsel appointed for trial
  representation as provided in section 3005 of this title. At least one
  counsel so appointed shall continue to represent the defendant until the
  conclusion of direct review of the judgment, unless replaced by the court
  with other qualified counsel.
  `(3) REPRESENTATION AFTER FINALITY OF JUDGMENT- 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 seeking direct review in the court
  of appeals or the Supreme Court, the Government shall promptly notify the
  district court that imposed the sentence. Within ten days of receipt of such
  notice, the district court shall proceed to make a determination whether
  the defendant is eligible under this subsection for appointment of counsel
  for subsequent proceedings. On the basis of the determination, the court
  shall issue an order: (A) appointing one or more counsel to represent the
  defendant upon a finding that the defendant is financially unable to obtain
  adequate representation and wishes to have counsel appointed or is unable
  competently to decide whether to accept or reject appointment of counsel;
  (B) 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 (C) denying the appointment of counsel upon
  a finding that the defendant is financially able to obtain adequate
  representation. Counsel appointed pursuant to this paragraph shall be
  different 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 representation.
  `(4) STANDARDS FOR COMPETENCE OF COUNSEL- In relation to a defendant who
  is entitled to appointment of counsel under this subsection, at least one
  counsel appointed 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 Federal district courts. If new counsel
  is appointed after judgment, 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 background,
  knowledge, or experience would otherwise enable him or her to properly
  represent the defendant, with due consideration of the seriousness of the
  penalty and the nature of the litigation.
  `(5) APPLICABILITY OF CRIMINAL JUSTICE ACT- Except as otherwise provided
  in this subsection, the provisions of section 3006A of this title shall
  apply to appointments under this subsection.
  `(6) CLAIMS OF INEFFECTIVENESS OF COUNSEL- The ineffectiveness or
  incompetence of counsel during proceedings on a motion under section 2255
  of title 28, United States Code, 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.
  `(b) STATE CAPITAL CASES- The laws of the United States shall not be
  construed to impose any requirement with respect to the appointment of
  counsel in any proceeding in a State court or other State proceeding in
  a capital case, other than any requirement imposed by the Constitution
  of the United States. In a proceeding under section 2254 of title 28,
  United States Code, relating to a State capital case, or any subsequent
  proceeding on review, appointment of counsel for a petitioner who is or
  becomes financially unable to afford counsel shall be in the discretion
  of the court, except as provided by a rule promulgated by the Supreme
  Court pursuant to statutory authority. Such appointment of counsel shall
  be governed by the provisions of section 3006A of this title.
`Sec. 3599. Collateral Attack on Judgment Imposing Sentence of Death
  `(a) TIME FOR MAKING SECTION 2255 MOTION- In any case in which a sentence
  of death has been imposed for an offense against the United States and the
  judgment has become final as described in section 3598(a)(3) of this title,
  a motion in the case under section 2255 of title 28, United States Code, must
  be filed within 90 days of the issuance of the order relating to appointment
  of counsel under section 3598(a)(3) 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 sixty days. A motion described in this section
  shall have priority over all non-capital 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 sentence of death shall be stayed
  in the course of direct review of the judgment and during the litigation
  of an initial motion in the case under section 2255 of title 28, United
  States Code. The stay shall run continuously following imposition of the
  sentence, and shall expire if--
  `(1) the defendant fails to file a motion under section 2255 of title 28,
  United States Code, within the time specified in subsection (a), or fails
  to make a timely application for court of appeals review following the
  denial of such a motion by a district court; or
  `(2) upon completion of district court and court of appeals review under
  section 2255 of title 28, United States Code, the motion under that section
  is denied and (A) the time for filing a petition for certiorari has expired
  and no petition has been filed; (B) a timely petition of certiorari was
  filed and the Supreme Court denied the petition; 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 consequences of his decision, the defendant waives the
  right to file a motion under section 2255 of title 28, United States Code.
  `(c) FINALITY OF THE DECISION ON REVIEW- If one of the conditions specified
  in subsection (b) 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; and
  `(2) the failure to raise the claim is (A) the result of governmental
  action in violation of the Constitution or laws of the United States: (B)
  the result of the Supreme Court recognition of a new Federal right that is
  retroactively applicable; or (C) based on a factual predicate that could
  not have been discovered through the exercise 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 confidence in the determination of guilt on the
  offense or offenses for which the death penalty was imposed.'; and
  (2) in the chapter analysis of part II, by adding the following new item
  after the item relating to chapter 227:
3591'.
</pre>