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S. 1330 (is) To make available without fiscal year limitation the offsetting collections of the Federal Communications Commission for electromagnetic spectrum auctions. [Introduced in Senate] ...

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  1st Session
                                 S. 132

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


                                 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,


    This Act may be cited as the ``National Death Penalty Moratorium 
Act of 2003''.



    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 
                    (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 
                            (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 
                            (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 
                            (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 
                            (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 
                    (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 
                            (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 
                    (G) The Supreme Court recently reversed itself and 
                has ruled the execution of the mentally retarded 

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