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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] ...
108th CONGRESS 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. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES 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, 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
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