HR 1038 IH
107th CONGRESS
1st Session
H. R. 1038
To place a moratorium on executions by the Federal Government and
urge the States to do the same, while a National Commission on the Death Penalty
reviews the fairness of the imposition of the death penalty.
IN THE HOUSE OF REPRESENTATIVES
March 15, 2001
Mr. JACKSON of Illinois (for himself, Mr. RODRIGUEZ, Mr. CLAY, Mr. HOEFFEL,
and Ms. JACKSON-LEE of Texas) introduced the following bill; which was referred
to the Committee on the Judiciary
A BILL
To place a moratorium on executions by the Federal Government and
urge the States to do the same, while a National Commission on the Death Penalty
reviews the fairness of the imposition of the death penalty.
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 `National Death Penalty Moratorium Act of
2001'.
TITLE I--MORATORIUM ON THE DEATH PENALTY
SEC. 101. FINDINGS.
Congress makes the following findings:
(A) The administration of the death penalty by the Federal government
and the States should be consistent with our Nation's fundamental
principles of fairness, justice, equality, and due process.
(B) At a time when Federal executions are scheduled to recommence,
Congress should consider that more than ever Americans are questioning the
use of the death penalty and calling for assurances that it be fairly
applied. Support for the death penalty has dropped to the lowest level in
19 years. An NBC News/Wall Street Journal Poll revealed that 63 percent of
Americans support a suspension of executions until questions of fairness
can be addressed.
(C) Documented unfairness in the Federal system requires Congress to
act and suspend Federal executions. Additionally, substantial evidence of
unfairness throughout death penalty States justifies further investigation
by Congress.
(2) ADMINISTRATION OF THE DEATH PENALTY BY THE FEDERAL GOVERNMENT-
(A) The fairness of the administration of the Federal death penalty
has recently come under serious scrutiny, specifically raising questions
of racial and geographic disparities:
(i) Eighty percent of Federal death row inmates are members of
minority groups.
(ii) A report released by the Department of Justice on September 12,
2000, found that 80 percent of defendants who were charged with
death-eligible offenses under Federal law and whose cases were submitted
by the United States attorneys under the Department's death penalty
decision-making procedures were African American, Hispanic American, or
members of other minority groups.
(iii) The Department of Justice report shows that United States
attorneys in only 5 of 94 Federal districts--1 each in Virginia,
Maryland, Puerto Rico, and 2 in New York--submit 40 percent of all cases
in which the death penalty is considered.
(iv) The Department of Justice report shows that United States
attorneys who have frequently recommended seeking the death penalty are
often from States with a high number of executions under State law,
including Texas, Virginia, and Missouri.
(v) The Department of Justice report shows that white defendants are
more likely than black defendants to negotiate plea bargains saving them
from the death penalty in Federal cases.
(vi) A study conducted by the House Judiciary Subcommittee on Civil
and Constitutional Rights in 1994 concluded that 89 percent of
defendants selected for capital prosecution under the Anti-Drug Abuse
Act of 1988 were either African American or Hispanic
American.
(vii) The National Institute of Justice has already set into motion
a comprehensive study of these racial and geographic
disparities.
(viii) Federal executions should not proceed until these disparities
are fully studied, discussed, and the federal death penalty process is
subjected to necessary remedial action.
(B) In addition to racial and geographic disparities in the
administration of the federal death penalty, other serious questions exist
about the fairness and reliability of federal death penalty
prosecutions:
(i) Federal prosecutors rely heavily on bargained-for testimony from
accomplices of the capital defendant, which is often obtained in
exchange for not seeking the death penalty against the accomplices. This
practice creates a serious risk of false testimony.
(ii) Federal prosecutors are not required to provide discovery
sufficiently ahead of trial to permit the defense to be prepared to use
this information effectively in defending their clients.
(iii) The Federal Bureau of Investigation (FBI), in increasing
isolation from the rest of the nation's law enforcement agencies,
refuses to make electronic recordings of interrogations that produce
confessions, thus making subsequent scrutiny of the legality and
reliability of such interrogations more difficult.
(iv) Federal prosecutors rely heavily on predictions of `future
dangerousness'--predictions deemed unreliable and misleading by the
American Psychiatric Association and the American Psychological
Association--to secure death sentences.
(3) ADMINISTRATION OF THE DEATH PENALTY BY THE STATES-
(A) The punishment of death carries an especially heavy burden to be
free from arbitrariness and discrimination. The Supreme Court has held
that `super due process', a higher standard than that applied in regular
criminal trials, is necessary to meet constitutional requirements. There
is significant evidence that States are not providing this heightened
level of due process. For example:
(i) In the most comprehensive review of modern death sentencing,
Professor James Liebman and researchers at Columbia University found
that, during the period 1973 to 1995, 68 percent of all death penalty
cases reviewed were overturned due to serious constitutional errors. In
the wake of the Liebman study, 6 States (Arizona, Maryland, North
Carolina, Illinois, Indiana, and Nebraska), as well as the Chicago
Tribune and the Texas Defender Service are conducting additional
studies. These studies may expose additional problems. With few
exceptions, the rate of error was consistent across all death penalty
States.
(ii) Forty percent of the cases overturned were reversed in Federal
court after having been upheld by the States.
(B) The high rate of error throughout all death penalty jurisdictions
suggests that there is a grave risk that innocent persons may have been,
or will likely be, wrongfully executed. Although the Supreme Court has
never conclusively addressed the issue of whether executing an innocent
person would in and of itself violate the Constitution, in Herrara v.
Collins, 506 U.S. 390 (1993), a majority of the court expressed the view
that a persuasive demonstration of actual innocence would violate
substantive due process rendering imposition of a death sentence
unconstitutional. In any event, the wrongful conviction and sentencing of
a person to death is a serious concern for many Americans. For
example:
(i) After 13 innocent people were released from Illinois death row
in the same period that the State had executed 12 people, on January 31,
2000, Governor George Ryan of Illinois imposed a moratorium on
executions until he could be `sure with moral certainty that no innocent
man or woman is facing a lethal injection, no one will meet that
fate'.
(ii) Since 1973, 93 persons have been freed and exonerated from
death rows across the country, most after serving lengthy
sentences.
(C) Wrongful convictions create a serious public safety problem
because the true killer is still at large, while the innocent person
languishes in prison.
(D) There are many systemic problems that result in innocent people
being convicted such as mistaken identification, reliance on jailhouse
informants, reliance on faulty forensic testing and no access to reliable
DNA testing. For example:
(i) A study of cases of innocent people who were later exonerated,
conducted by attorneys Barry Scheck and Peter Neufeld with `The
Innocence Project' at Cardozo Law School, showed that mistaken
identifications of eyewitnesses or victims contributed to 84 percent of
the wrongful convictions.
(ii) Many persons on death row were convicted prior to 1994 and did
not receive the benefit of modern DNA testing. At least 10 individuals
sentenced to death have been exonerated through post-conviction DNA
testing, some within days of execution. Yet in spite of the current
widespread prevalence and availability of DNA testing, many States have
procedural barriers blocking introduction of post-conviction DNA
testing. More than 30 States have laws that require a motion for a new
trial based on newly discovered evidence to be filed within 6 months or
less.
(iii) The widespread use of jailhouse snitches who earn reduced
charges or sentences by fabricating `admissions' by fellow inmates to
unsolved crimes can lead to wrongful convictions.
(iv) The misuse of forensic evidence can lead to wrongful
convictions. A recently released report from the Texas Defender Service
entitled `A State of Denial: Texas and the Death Penalty' found 160
cases of official forensic misconduct including 121 cases where expert
psychiatrists testified `with absolute certainty that the defendant
would be a danger in the future', often without even interviewing the
defendant.
(E) The sixth amendment to the Constitution guarantees all accused
persons access to competent counsel. The Supreme Court set out standards
for determining competency in the case of Strickland v. Washington, 466
U.S. 668 (1984). Unfortunately, there is unequal access to competent
counsel throughout death penalty States. For example:
(i) Ninety percent of capital defendants cannot afford to hire their
own attorney.
(ii) Fewer than one-quarter of the 38 death penalty States have set
any standards for competency of counsel and in those few States, these
standards were set only recently. In most States, any person who passes
a bar examination, even if that attorney has never represented a client
in any type of case, may represent a client in a death penalty
case.
(iii) Thirty-seven percent of capital cases were reversed because of
ineffective assistance of counsel, according to the Columbia
study.
(iv) The recent Texas report noted problems with Texas defense
attorneys who slept through capital trials, ignored obvious exculpatory
evidence, suffered discipline for ethical lapses or for being under the
influence of drugs or alcohol while representing an indigent capital
defendant at trial.
(v) Poor lawyering was also cited by Governor Ryan in Illinois as a
basis for a moratorium. More than half of all capital defendants there
were represented by lawyers who were later disciplined or disbarred for
unethical conduct.
(F) The Supreme Court has held that it is a violation of the eighth
amendment to impose the death penalty in a manner that is arbitrary,
capricious, or discriminatory. McKlesky v. Kemp, 481 U.S. 279 (1987).
Studies consistently indicate racial disparity in the application of the
death penalty both for the defendants and the victims. The death penalty
is disparately applied in various regions throughout the country,
suggesting arbitrary administration of the death penalty based on where
the prosecution takes place. For example:
(i) Of the 85 executions in the year 2000, 51 percent of the
defendants were white, 40 percent were black, 7 percent were Latino and
2 percent Native American. Of the victims in the underlying murder, 76
percent were white, 18 percent were black, 2 percent were Latino, and 3
percent were `other'. These figures show a continuing trend since
reinstatement of the modern death penalty of a predominance of white
victims' cases. Despite the fact that nationally whites and blacks are
victims of murder in approximately equal numbers, 83 percent of the
victims involved in capital cases overall since reinstatement, and 76
percent of the victims in 2000, have been white. Since this disparity is
confirmed in studies that control for similar crimes by defendants with
similar backgrounds, it implies that white victims are considered more
valuable in the criminal justice system.
(ii) Executions are conducted predominately in southern States.
Ninety percent of all executions in 2000 were conducted in the south.
Only 3 States outside the south, Arizona, California, and Missouri,
conducted an execution in 2000. Texas accounted for almost as many
executions as all the remaining States combined.
SEC. 102. FEDERAL AND STATE DEATH PENALTY MORATORIUM.
(a) IN GENERAL- The Federal Government shall not carry out any sentence of
death imposed under Federal law until the Congress considers the final
findings and
recommendations of the National Commission on the Death Penalty in the report
submitted under section 202(c)(2) and the Congress enacts legislation repealing
this section and implements or rejects the guidelines and procedures recommended
by the Commission.
(b) SENSE OF CONGRESS- It is the sense of Congress that each State that
authorizes the use of the death penalty should enact a moratorium on
executions to allow time to review whether the administration of the death
penalty by that State is consistent with constitutional requirements of
fairness, justice, equality, and due process.
TITLE II--NATIONAL COMMISSION ON THE DEATH PENALTY
SEC. 201. ESTABLISHMENT OF COMMISSION.
(a) ESTABLISHMENT- There is established a commission to be known as the
National Commission on the Death Penalty (in this title referred to as the
`Commission').
(1) APPOINTMENT- Members of the Commission shall be appointed by the
President in consultation with the Attorney General and the Chairmen and
Ranking Members of the Committees on the Judiciary of the House of
Representatives and the Senate.
(2) COMPOSITION- The Commission shall be composed of 15 members, of
whom--
(A) 3 members shall be Federal or State prosecutors;
(B) 3 members shall be attorneys experienced in capital
defense;
(C) 2 members shall be current or former Federal or State
judges;
(D) 2 members shall be current or former Federal or State law
enforcement officials; and
(E) 5 members shall be individuals from the public or private sector
who have knowledge or expertise, whether by experience or training, in
matters to be studied by the Commission, which may include--
(i) officers or employees of the Federal Government or State or
local governments;
(ii) members of academia, nonprofit organizations, the religious
community, or industry; and
(iii) other interested individuals.
(3) BALANCED VIEWPOINTS- In appointing the members of the Commission,
the President shall, to the maximum extent practicable, ensure that the
membership of the Commission is fairly balanced with respect to the opinions
of the members of the Commission regarding support for or opposition to the
use of the death penalty.
(4) DATE- The appointments of the initial members of the Commission
shall be made not later than 30 days after the date of enactment of this
Act.
(c) PERIOD OF APPOINTMENT- Each member shall be appointed for the life of
the Commission.
(d) VACANCIES- A vacancy in the Commission shall not affect the powers of
the Commission, but shall be filled in the same manner as the original
appointment.
(e) INITIAL MEETING- Not later than 30 days after all initial members of
the Commission have been appointed, the Commission shall hold the first
meeting.
(f) MEETINGS- The Commission shall meet at the call of the Chairperson.
(g) QUORUM- A majority of the members of the Commission shall constitute a
quorum for conducting business, but a lesser number of members may hold
hearings.
(h) CHAIR- The President shall designate 1 member appointed under
subsection (a) to serve as the Chair of the Commission.
(i) RULES AND PROCEDURES- The Commission shall adopt rules and procedures
to govern the proceedings of the Commission.
SEC. 202. DUTIES OF THE COMMISSION.
(1) IN GENERAL- The Commission shall conduct a thorough study of all
matters relating to the administration of the death penalty to determine
whether the administration of the death penalty comports with constitutional
principles and requirements of fairness, justice, equality, and due
process.
(2) MATTERS STUDIED- The matters studied by the Commission shall include
the following:
(A) Racial disparities in capital charging, prosecuting, and
sentencing decisions.
(B) Disproportionality in capital charging, prosecuting, and
sentencing decisions based on geographic location and income status of
defendants or any other factor resulting in such
disproportionality.
(C) Adequacy of representation of capital defendants, including
consideration of the
American Bar Association `Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases' (adopted February 1989) and American Bar
Association policies that are intended to encourage competency of counsel in
capital cases (adopted February 1979, February 1988, February 1990, and August
1996).
(D) Whether innocent persons have been sentenced to death and the
reasons these wrongful convictions have occurred.
(E) Whether the Federal Government should seek the death penalty in a
State with no death penalty.
(F) Whether courts are adequately exercising independent judgment on
the merits of constitutional claims in State post-conviction and Federal
habeas corpus proceedings.
(G) Whether mentally retarded persons and persons who were under the
age of 18 at the time of their offenses should be sentenced to death after
conviction of death-eligible offenses.
(H) Procedures to ensure that persons sentenced to death have access
to forensic evidence and modern testing of forensic evidence, including
DNA testing, when modern testing could result in new evidence of
innocence.
(I) Any other law or procedure to ensure that death penalty cases are
administered fairly and impartially, in accordance with the
Constitution.
(b) GUIDELINES AND PROCEDURES-
(1) IN GENERAL- Based on the study conducted under subsection (a), the
Commission shall establish guidelines and procedures for the administration
of the death penalty consistent with paragraph (2).
(2) INTENT OF GUIDELINES AND PROCEDURES- The guidelines and procedures
required by this subsection shall--
(A) ensure that the death penalty cases are administered fairly and
impartially, in accordance with due process;
(B) minimize the risk that innocent persons may be executed;
and
(C) ensure that the death penalty is not administered in a racially
discriminatory manner.
(1) PRELIMINARY REPORT- Not later than 1 year after the date of
enactment of this Act, the Commission shall submit to the President, the
Attorney General, and the Congress a preliminary report, which shall contain
a preliminary statement of findings and conclusions.
(2) FINAL REPORT- Not later than 2 years after the date of enactment of
this Act, the Commission shall submit a report to the President, the
Attorney General, and the Congress which shall contain a detailed statement
of the findings and conclusions of the Commission, together with the
recommendations of the Commission for legislation and administrative actions
that implement the guidelines and procedures that the Commission considers
appropriate.
SEC. 203. POWERS OF THE COMMISSION.
(a) INFORMATION FROM FEDERAL AND STATE AGENCIES-
(1) IN GENERAL- The Commission may secure directly from any Federal or
State department or agency information that the Commission considers
necessary to carry out the provisions of this title.
(2) FURNISHING OF INFORMATION- Upon a request of the Chairperson of the
Commission, the head of any Federal or State department or agency shall
furnish the information requested by the Chairperson to the
Commission.
(b) POSTAL SERVICES- The Commission may use the United States mails in the
same manner and under the same conditions as other departments and agencies of
the Federal Government.
(c) GIFTS- The Commission may accept, use, and dispose of gifts or
donations of services or property.
(d) HEARINGS- The Commission or, at the direction of the Commission, any
subcommittee or member of the Commission, may, for the purpose of carrying out
the provisions of this title--
(1) hold hearings, sit and act at times and places, take testimony,
receive evidence, and administer oaths that the Commission, subcommittee, or
member considers advisable; and
(2) require, by subpoena or otherwise, the attendance and testimony of
witnesses and the production of books, records, correspondence, memoranda,
papers, documents, tapes, and materials that the Commission, subcommittee,
or member considers advisable.
(e) ISSUANCE AND ENFORCEMENT OF SUBPOENAS-
(1) ISSUANCE- Subpoenas issued pursuant to subsection (d)--
(A) shall bear the signature of the Chairperson of the Commission;
and
(B) shall be served by any person or class of persons designated by
the Chairperson for that purpose.
(A) IN GENERAL- In the case of contumacy or failure to obey a subpoena
issued under subsection (d), the district court of the United States for
the judicial district in which the subpoenaed person resides, is served,
or may be found, may issue an order requiring that person to appear at any
designated place to testify or to produce documentary or other
evidence.
(B) CONTEMPT- Any failure to obey a court order issued under
subparagraph (A) may be punished by the court as a contempt.
(3) TESTIMONY OF PERSONS IN CUSTODY- A court of the United States within
the jurisdiction in which testimony of a person held in custody is sought by
the Commission or within the jurisdiction of which such person is held in
custody, may, upon application by the Attorney General, issue a writ of
habeas corpus ad testificandum requiring the custodian to produce such
person before the Commission, or before a member of the Commission or a
member of the staff of the Commission designated by the Commission for such
purpose.
(f) WITNESS ALLOWANCES AND FEES-
(1) IN GENERAL- The provisions of section 1821 of title 28, United
States Code, shall apply to witnesses requested or subpoenaed to appear at
any hearing of the Commission.
(2) TRAVEL EXPENSES- The per diem and mileage allowances for witnesses
shall be paid from funds available to pay the expenses of the
Commission.
SEC. 204. COMMISSION PERSONNEL MATTERS.
(a) COMPENSATION OF MEMBERS- Members of the Commission shall serve without
compensation for the services of the member to the Commission.
(b) TRAVEL EXPENSES- The members of the Commission shall be allowed travel
expenses, including per diem in lieu of subsistence, at rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5, United
States Code, while away from their homes or regular places of business in the
performance of services for the Commission.
(1) IN GENERAL- The Chairperson of the Commission may, without regard to
the civil service laws and regulations, appoint and terminate an executive
director and such other additional personnel as may be necessary to enable
the Commission to perform the duties of the Commission.
(2) EXECUTIVE DIRECTOR- The employment of an executive director shall be
subject to confirmation by the Commission.
(3) COMPENSATION- The Chairperson of the Commission may fix the
compensation of the executive director and other personnel without regard to
the provisions of chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions and General
Schedule pay rates, except that the rate of pay for the executive director
and other personnel may not exceed the rate payable for level V of the
Executive Schedule under section 5316 of title 5.
(d) DETAIL OF GOVERNMENT EMPLOYEES- Any Federal Government employee may be
detailed to the Commission without reimbursement, and the detail shall be
without interruption or loss of civil service status or privilege.
(e) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES- The Chairperson of
the Commission may procure temporary and intermittent services under section
3109(b) of title 5, United States Code, at rates for individuals which do not
exceed the daily equivalent of the annual rate of basic pay prescribed for
level V of the Executive Schedule under section 5316 of title 5.
SEC. 205. TERMINATION OF THE COMMISSION.
The Commission shall terminate 90 days after the date on which the
Commission submits its report under section 202.
SEC. 206. FUNDING.
(a) IN GENERAL- The Commission may expend an amount not to exceed
$850,000, as provided by subsection (b), to carry out this title.
(b) AVAILABILITY- Sums appropriated to the Department of Justice shall be
made available to carry out this title.
END