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.

January 9, 2003

Mr. FEINGOLD (for himself, Mr. LEVIN, Mr. CORZINE, and Mr. DURBIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

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 2003'.

TITLE I--MORATORIUM ON THE DEATH PENALTY

SEC. 101. FINDINGS.

Congress makes the following findings:

(1) GENERAL 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) 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.

(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) Almost 75 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) have conducted additional studies. These studies expose additional problems.

(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, over 100 innocent persons sitting on death rows across the country have been exonerated, 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 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 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) Since 1976, 45 percent of death row inmates were white, 43 percent were black, 9 percent were Hispanic, and 2 percent were of other racial groups. Of the victims in the underlying murder, 81 percent were white, 14 percent were black, and 4 percent were Hispanic. While over 80 percent of completed capital cases involve white victims, nationally only 50 percent of murder victims are white. These figures show a continuing trend since reinstatement of the modern death penalty of a predominance of white victims' cases and 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.

(G) The Supreme Court recently reversed itself and has ruled the execution of the mentally retarded unconstitutional and in violation of the Eighth Amendment. (Atkins v. Virginia, 536 U.S. 304 (2002)).

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').

(b) MEMBERSHIP-

(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.

(a) STUDY-

(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 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.

(c) REPORT-

(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.

(2) ENFORCEMENT-

(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.

(c) STAFF-

(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