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SENTENCING. 'In CAPITAL CASES HEARING If you have issues viewing or accessing this file contact us at NCJRS.gov. SENTENCING. 'iN CAPITAL CASES HEARING (' BEFORE THE I SUBCOM.MITTEE ON CRIMINAL JUSTICE ,. IV· OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES NINETY-FIFTH CONGRESS SECOND SESSION ON H.R. 13360 SENTENOING TN CAPITAL CASES ) JULY 19, 1978 , Serial No. 74 l .. t I 11 0--- :I- I I. : . ()Q~. ~~ .. for the u,. of the Committee on the Judicia", . ~~ •.. U.S. GOVERNMENT PRINTING OFFICE .lr) ~ · WASHINGTON, 1978 • I. " COMMI.TTEE ON THE JUDICIARY PETER W. RODINO, JII., New Jersey, Chair1ltal~ .TACK BROOKS, Texas ROBERT McCLORY, Illinois ROBERT W. KARTENi\IEIER, Wisconsin TOU RAILSBACK, Ililnols DON EDWARDS, California CHAf(t,ES E. WIGGINS, California JOHN CONYERS, JII., i\Ilchlgan HAMILTON FISH, JII., New York JOSHUA EILBERG, Pennsylvania 111. CALDWELL BUTLER, Virglnln WALTER FLOWERS, Alp.1l11ma WILLIAM S. COHEN, i\Inlne JA1IIElS R.MANN, South Carolinll CARLOS J. MOORHEAD, California JOHN F. SEIBERLING, Ohio JOHN M. ASHBROOK, Ohio GEORGE E. DANIELSON, California HENRY J. HYDE, 111\nols ROBERT F. DRINAN, Massachusetts THOMAS N. KINDNESS, Ohio BARBARA JORDAN, Texas HAROLD S. SAWYER,Mlchlgan ELIZABETH HOLTZMAN, New York ROMANO L. MAZZOLI, Kentucky WILLIAM J. HUGHES, New Jersey SAM B. HALL, JR., Texas I,AMAR GUDGER, North Carollnn HAROLD L. VOLK1\IElR, Missouri HERBERT E. HARRIS II, Vlrglnln JIM SANTINI, Nevada ALLEN E. ER':i'EL, Pennsylvania BILLY LEE EVANS, Georgia ANTHONY C. BE1LENSON, California ALAN A. PARKER, General CounBel GARNER J. CLINE, Stat! Director FRANKLIN G. POLK, ABsociate CounBel SUBCOMMITTEE ON CRIMINAL JUSTICE JAMES R. MANN, South Carolina, Chairman ELIZABETH HOLTZMAN, New York CHARLES E. WIGGINS, California SAM B. HALL JR., Texas HENRY J. HYDE, 111\nols LAMAR GUDGER, North Carolina BILLY LEE EVANS, Georgia THOlIAS W. HUTCHISON, COII1lSe! RODERT A. LElIDO, Assistullt COllllse! JUDITH A. LEVINTHAT" AssiBtunt Counscl RAYMOND V. SMIETANKA, ABsociate Counsel (II) CONTENTS :Page Text of H.R. 13360 _________________________________ .. -:_____________ 2 rBedau, Ifugo Adam ____________ ~~~~~~~~_S_______________________ _ L:::: Prepared statement__________ --________ - ___ --____________ --___ _ Butler, Fl anois ______________ .... ___________________________________ _ Franz, Delton, Mennonite Central Commit,tee ________________________ _ Prepared statement ___________________________ . _______________ _ Lawton, Mary C., Deputy Assistant Attorney Generiii, Office of Legal Counsel, Dt!pmtment of Justice __________________________________ _ 20 Prepared statement ___________________________________________ _ 15 Schwarzschild, Henry, American Civil Liberties Union ___________ .. ____ _ 70 Prepared statement___________________________________________ _ 23 Stulz, Barbara ___________________________________________________ _ 96 Unterkoefier, Most Rev. Ernest L., Bishop of Charleston, S.C., U.S. Catholic Conference ____________________________________________ _ 96 Prepared statement___________________________________________ _ 94 Van Den Haag, Ernest ____________________________________________ _ 114 Prepared statement___________________________________________ _ 103 ADDITIONAL MATERIAL Capital Punishment: WhlJ.t the religious community says _________ ~_____ 32 Friends Committee on National Legislation statement on H.R. 13360____ 163 Illinois Coalition Against the Death Penalty __________________________ 165 The Collapse of the Case Against Capital Punishment by Ernest, Van Den Haag, National Review, March 31,1978 ________________________ .__ 105 The Collapse of the Case Against Capital Punishment by Ernest Van Den Haag, National Review, March 31,1978___________________________ 105 Lutheran Council in the U.S.A. Social Statements: Capital Punishment__ 166 National Counoil of the Churches of Christ in the U.S.A., rellolutions on the death penalty, 1968 and 1976__________________________________ 168 The Deterrent Effect of the Death Penalty: Facts v. Faity, by Hans Zeisel, professor emeritus of law and sociology, University of Chicago_______ 170 (Ill) NCJRS JUl11 \S79 SENTENCING IN CAPITAL CASES WEDNESDAY, JULY 19, 1978 iiI' U. S. HOUSE OF REPRESENTA7.'IVES, SUBOO:Ul\Il'l'TEE ON OnnIrrn AL J USTIOE OF 7~B:E COl\f1\fI'ITEE ON THB JUDIOIARY, " TV ashington) D.O. The snbconnnittbe met. at 9 :39 a.m. in 1''00111. B-352 R.ayburll House Office Building, Hon. James R Mann (chairman of the subcoll1..111it- tee) presiding. " Present: Hepresentatives :Mann, Gudger, Evans, ,YigglllS, and Hyde. Also present: Thomas 'V. Hutchison,..eounsel; Judy A. Levinthu,}, assistant counsel; and Raymoncl V. Smietanka,associate counsel. l\il'. MANN. The subcommittee will come to order. The Subcommittee on Criminal Justice today will receive testi­ mony 011 R.R. 13360, it bill to amend the Federal Rules of Criminal Procedure ·and the Federal Rules of Appellate Procedure to provide. for postconviction proceedings in certain criminal cases. This bill is an 'Outgrowth of the subcommittee's work on the recodification of the Federal crimhlallaws, and it provides procedures for the imposition of the death penalty in certain cases. The issue of capital punishment raises significant moral and legal questions. The U.S. Supreme Court ,has held that the death penalty is n.ot unconstitutional per se and has recently uphe1cl several State statutes which estrublish procedures for the imposition of the death penalty. H. R. 13360 was-drafted in an attempt to' come within these constitutional guidelines. [A copy of R.ll. 13360 follows:] (1) , " 95mCONGRESS20 SESSION H R. 13360 • • IN THE HOUSE OF ltEP1UflSEN'PA1'IVES JUNE 20,1978 ]'fr. MANN introdn-:ed the following bill; which wus l'ef~rr~d to the Committee Oll the JUdiciary • A BILL '1'0 amend tIlO Federal Rules of Oriminal Pl'ocedllre and ,the Federnl Rules of Apl)ellatc l)rocedurc to provide for post­ conviction proceedings in cel'tuin cdminnl cases. 1 Be it enacted by the Senate and House of Repl'esenta- 2 tives of the United Stales of Am81'ica in Oongress assembled, 3 That the Federal Rules 'of Criminal Procedure m'e amended 4 hy adding Rfter title X the following new title: 5 "TITLE XI. SENTENCING IN CAPITAL CASES 6 "RULE 61. SETTING SENTENCES IN CAPITAL 'OASES 7 "A sentence of death may not be imposed uncleI' a law of 8 the United States providing that penulty unless 'the stund- 9 ards and procedures set forth in this title haye been followed • I 3 2 1 to the extent st1ch standards 'ancl procedures apply to the pur~ 2 ticnlar case by the tenus of tlIis. title, 3 • 4 " (a) WlIenever a person is convicted of an offense lor 5 which death is a possible pepalty under a law of the United • 6 States, there shull be a. 'Sepm'ate hearing 011 the question of 7 sentencing. 8 (C (b) (1) Such hearing shall be held before the jury 9 that determined the defendant's guilt or by a jury impaneled 10 for the purpose of a. hearing under p!Ll'agraph (2) of this 11 subdivision. 12 "(2) A jury may be implemented for the purpose of a 13 hearing pursuant to this title if- 14 "(A) the defendant was convicted on a plea of r 15 guilty; 16 "(B) t11C defendant was convicted uftel' a trial with- 17 ont a jmy; 18 " (0) the jUly tliat determined the defendant's guilt 19 has been dischargCll [for good cause] i 01' • 20 "(D) al)peal of the original sentence of death has 21 resulted in a rmrllluii for redeterlllinatioll of sentence 22 under this title. 23 (C (3) A jmy., illl11aneled for the pUl'pose of a hearing IJl1l'- 24 sMnt to this title shall consist. of 12 persons, but at any time 25 before the conclusion of the hearing the parties may stipulate 4 3 1 in writing with the approval of the court that such jury shall 2 consist of any number of persons less than 12 01' that a valid 3 rccommendation may he retnl'l1cdby a jury of less than 12 4 persons shoulc1 the court find it necessary to excuse one or • 5 more jnrors for any just canse after the hearing commences. 6 "(4) The defendant may, by motion and with the ap- • 7 proval of the court, waive the'hearing before a jury. 8 "(c) (1) At such hearing, both the defendant and the 9 Government may present evidence as to any matter pertain- 10 ing to sentence, including the existence of any aggravating ur 11 mitigating circumstances set forth in Rules 64 and 65. 12 " (2) Rules of evidence governing admission of evidence 13 at criminal trials shall apply with respect to evidence tend- 14 ing to show the existence of ·an aggravating circumstance 15 or to negate the existence of a mitigating CirCllll1stance, but 16 such Tules shall not alJply to preclude evidence tending to 17 show the existence of a mitigating ~ireumstnnce or to negate 18 the existence of an aggravating circumstance. • 19 " (3) The defendant and the Government sha1l be 20 permitted to rebut any information received at a l1earing • 21 pursuant to this title and shall be given fair opportunity to 22 present argument as to the appropriateness of hnposing a ,23 sentence of death. b 24 " (d) The existence of any aggra.vating circulllstance 25 must be established by the Government beyond a reasona'ble 5 1 doubl, and the 0xigtcnrc of fiUY mitigating circumstancc 2 must bc csta:bli:o(hCtl by the defendant hy a preponderance of ::\ the evidence, 4 Ie (e) Any informa tion in a report of presentcnce inves­ • </ fi tigation which is withheld from the dcfendnut pursnant to G the ll'cdeml ltnles of Criminal Procedure shall not hc C011- • 'i siu(n'cd in detcrmining scntcncc under this title, S " (f) The jury, if it recommends the imposition of a 9 sentence of death! shall designate in writing, signed hy tho 10 foreman of such jury, finy aggrayating circumstances and any J 1 mitigating circumstances which the jury found, 12 "RULE 63. JUR.Y RECOl\Il\rENDA.'I.'ION 13 "(a) After a hearing held pursuant to Rule 62, the jury 14: shall detm'mine whether to recolllmend the imposition of a 15 sentence of death, 16 " (b) The jury may l'ecommend the il111)Osition of a 17 sentence of death only if eyery memlJer of the jLl1'Y- • 18 " (1) finds heyo11(1 a roasonah1e doubt that the de- 19 fendant intended.
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