Pub. L. 102-382, tit. I, sec. 138

Sec. 138. Notwithstanding any other law, the District of Columbia Board of Elections and Ethics shall place on the ballot, without alteration, at a general, special, or primary election to be held within 90 days after the date of enactment of this Act, the following initiative: short title Mandatory Life Imprisonment or Death Penalty for Murder in the District of Columbia. summary statement This initiative measure, if passed, would increase the penalty for first degree murder in the District of Columbia. A person convicted of this crime would be sentenced either to death or life imprisonment without the possibility of parole. legislative text The legislative text of the initiative shall read as follows: Be it enacted by the Electors of the District of Columbia, that this measure be cited as the “Mandatory Life Imprisonment or Death Penalty for Murder in the District of Columbia”. “Section 801 of the Act entitled ‘An Act to establish a code of law for the District of Columbia’, approved March 3, 1901 (D.C. Code 22–2404(a)), is amended— “(1) by amending subsection (a) to read as follows: “‘(a) The punishment of murder in the first degree shall be life imprisonment without the possibility of parole, or death.’: “(2) by striking subsection (b) and redesignating subsection (c) as subsection (b); and “(3) by adding at the end the following new subsections: “‘(c) Penalty.—A person who commits an offense under subsection (a) shall be punished by death or life imprisonment. A sentence of death under this subsection may be imposed in accordance with the procedures provided in subsections (d), (e), (f), (g), (h), (i), (i), (k), and (l). “‘(d) Mitigating Factors.—In determining whether to recommend a sentence of death, the jury shall consider whether any aspect of the defendant’s character, background, or record or any 106 STAT. 1437circumstance of the offense that the defendant may proffer as a mitigating factor exists, including the following factors: “‘(1) Mental capacity.—The defendant’s mental capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. “‘(2) Duress.—The defendant was under unusual and substantial duress. “‘(3) Participation in offense minor.—The defendant is punishable as a principal (pursuant to section 908 of the Act entitled “An Act to establish a code of law for the District of Columbia”, approved March 3, 1901 (D.C. Code 22–105)) in the offense, which was committed by another, but the defendant’s participation was relatively minor. “‘(e) Aggravating Factors.—In determining whether to recommend a sentence of death, the jury shall consider any aggravating factor for which notice has been provided under subsection (f), including the following factors: “‘(1) Killing in furtherance of drug trafficking.—The defendant engaged in the conduct resulting in death in the course of or m furtherance of drug trafficking activity. “‘(2) Killing in the course of other serious violent crimes.—The defendant engaged in the conduct resulting in death in the course of committing or attempting to commit an offense involving robbery, burglary, sexual abuse, kidnapping, or arson. “‘(3) Multiple killings or endangerment of others.— The defendant committed more than one offense under this section, or in committing the offense knowingly created a grave risk of death to one or more persons in addition to the victim of the offense. “‘(4) Involvement of firearm.—During and in relation to the commission of the offense, the defendant used or possessed a firearm (as defined in paragraph (6) of D.C. Law 1–85 (D.C. Code 6–2302(6))). “‘(5) Previous conviction of violent felony.—The defendant has previously been convicted of an offense punishable by a term of imprisonment of more than 1 year that involved the use or attempted or threatened use of force against a person or that involved sexual abuse. “‘(6) Killing while incarcerated or under supervision.—The defendant at the time of the offense was confined in or had escaped from a jail, prison, or other correctional or detention facility, was on pretrial release, or was on probation, parole, supervised release, or other post-conviction conditional release. “‘(7) Heinous, cruel or depraved manner of commission.—The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse of the victim. “‘(8) Procurement of the offense by payment.—The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. “‘(9) Commission of the offense for pecuniary gain.—The defendant committed the offense as consideration for receiving, or in the expectation of receiving or obtaining, anything of pecuniary value. 106 STAT. 1438 “‘(10) Substantial planning and premeditation.—The defendant committed the offense after substantial planning and premeditation. “‘(11) Vulnerability of victim.—The victim was particularly vulnerable due to old age, youth, or infirmity. “‘(12) Killing of public servant.—The defendant committed the offense against a public servant— “‘(A) while the public servant was engaged in the performance of his or her official duties; “‘(B) because of the performance of the public servant’s official duties; or “‘(C) because of the public servant’s status as a public servant. “‘(13) Killing to interfere with or retaliate against witness.—The defendant committed the offense in order to prevent or inhibit any person from testifying or providing information concerning an offense, or to retaliate against any person for testifying or providing such information. “‘(f) Notice of Intent To Seek Death Penalty.—If the government intends to seek the death penalty for an offense under this section, the attorney for the government shall file with the court and serve on the defendant a notice of such intent. The notice shall be provided a reasonable time before the trial or acceptance of a guilty plea, or at such later time as the court may permit for good cause. The notice shall set forth the aggravating factor or factors set forth in subsection (e) and any other aggravating factor or factors that the government will seek to prove as the basis for the death penalty. The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim’s family. The court may permit the attorney for the government to amend the notice upon a showing of good cause. “‘(g) Judge and Jury at Capital Sentencing Hearing.—A hearing to determine whether the death penalty will be imposed for an offense under this section shall be conducted by the judge who presided at trial or accepted a guilty plea, or by another judge if that judge is not available. The hearing shall be conducted before the jury that determined the defendant’s guilt if that jury is available. A new jury shall be impaneled for the purpose of the hearing if the defendant pleaded guilty, the trial of guilt was conducted without a jury, the jury that determined the defendant’s guilt was discharged for good cause, or reconsideration of the sentence is necessary after the initial imposition of a sentence of death. A jury impaneled under this subsection shall have 12 members unless the parties stipulate to a lesser number at any time before the conclusion of the hearing with the approval of the court. Upon motion of the defendant, with the approval of the attorney by the government, the hearing shall be carried out before the judge without a jury. If there is no jury, references to “the jury” in this section, where applicable, shall be understood as referring to the judge. “‘(h) Proof of Mitigating and Aggravating Factors.—No presentence report shall be prepared if a capital sentencing hearing is held under this section. Any information relevant to the existence of mitigating factors, or to the existence of aggravating factors for which notice has been provided under subsection (f), may be presented by either the government or the defendant, regardless 106 STAT. 1439of its admissibility under the rules governing the admission of evidence at criminal trials, except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. The information presented may include trial transcripts and exhibits. The attorney for the government and for the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in that case of imposing a sentence of death. The attorney for the government shall open the argument, the defendant shall be permitted to reply, and the government shall then be permitted to reply in rebuttal. “‘(i) Findings of Aggravating and Mitigating Factors.—The jury shall return special findings identifying any aggravating factor or factors for which notice has been provided under subsection (f) and which the jury unanimously determines have been established by the government beyond a reasonable doubt. A mitigating factor is established if the defendant has proven its existence by a preponderance of the evidence, and any member of the jury who finds the existence of such a factor may regard it as established for purposes of this section regardless of the number of jurors who concur that the factor has been established. “‘(j) Finding Concerning a Sentence of Death.—If the jury specially finds under subsection (i) that 1 or more aggravating factors set forth in subsection (e) exist, and the jury further finds unanimously that there are no mitigating factors or that the aggravating factor or factors specially found under subsection (i) outweigh any mitigating factors, the jury shall recommend a sentence of death. In any other case, the jury shall not recommend a sentence of death. The jury shall be instructed that it must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factors in its decision, and should make such a recommendation as the information warrants. “‘(k) Special Precaution To Assure Against Discrimination.—In a hearing held before a jury, the court, before the return of a finding under subsection (j), shall instruct the jury that, in considering whether to recommend a sentence of death, it shall not consider the race, color, religion, national origin, or sex of the defendant or any victim, and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for such a crime regardless of the race, color, religion, national origin, or sex of the defendant or any victim. The jury, upon the return of a finding under subsection (j), shall also return to the court a certificate, signed by each juror, that the race, color, religion, national origin, or sex of the defendant or any victim did not affect the juror’s individual decision and that the individual juror would have recommended the same sentence for such a crime regardless of the race, color, religion, national origin, or sex of the defendant or any victim. “‘(l) Imposition of a Sentence of Death.—Upon a recommendation under subsection (j) that a sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence of life imprisonment without the possibility of parole. “ ‘(m) Review of a Sentence of Death.— 106 STAT. 1440 “‘(1) The defendant may appeal a sentence of death under this section by filing a notice of appeal of the sentence within the time provided for filing a notice of appeal of the judgment of conviction. An appeal of a sentence under this subsection may be consolidated within an appeal of the judgment of conviction and shall have priority over all noncapital matters in the court of appeals. “‘(2) The court of appeals shall review the entire record in the case including the evidence submitted at trial and information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under subsection (i). The court of appeals shall uphold the sentence if it determines that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor, that the evidence and information support the special findings under subsection (i), and that the proceedings were otherwise free of prejudicial error that was properly preserved for review. “‘(3) In any other case, the court of appeals shall remand the case for reconsideration of the sentence or imposition of another authorized sentence as appropriate, except that the court shall not reverse a sentence of death on the ground that an aggravating factor was invalid or was not supported by the evidence and information if at least one aggravating factor described in subsection (e) remains which was found to exist and the court, on the basis of the evidence submitted at trial and the information submitted at the sentencing hearing, finds that the remaining aggravating factor or factors that were found to exist outweigh any mitigating factors. The court of appeals shall state in writing the reasons for its disposition of an appeal of a sentence of death under this section, “‘(n) Implementation of Sentence of Death.—A person sentenced to death under this section shall be committed to the custody of the Attorney General until exhaustion of the procedures for appeal of the judgment of conviction and review of the sentence. When the sentence is to be implemented, the Attorney General shall release the person sentenced to death to the custody of a United States Marshal. The Marshal shall supervise implementation of the sentence in the manner prescribed by the law of a State designated by the court. The Marshal may use State or local facilities, may use the services of an appropriate State or local official or of a person such an official employs, and shall pay the costs thereof in an amount approved by the Attorney General. “‘(o) Special Bar To Execution.—A sentence of death shall not be carried out upon a woman while she is pregnant. “‘(p) Conscientious Objection To Participation in Execution.—No employee of the District of Columbia government, and no person providing services to the government under contract shall be required, as a condition of that employment or contractual obligation, to be in attendance at or to participate in any execution carried out under this section if such participation is contrary to the moral or religious convictions of the employee. For purposes of this subsection, the term “participate in any execution” includes personal preparation of the condemned individual and the apparatus used for the execution, and supervision of the activities of other personnel in carrying out such activities. 106 STAT. 1441 “‘(q) Appointment of Counsel for Indigent Capital Defendants.—A defendant against whom a sentence of death is sought, or on whom a sentence of death has been imposed, under this section, shall be entitled to appointment of counsel from the commencement of trial proceedings until one of the conditions specified in subsection (v) has occurred, if the defendant is or becomes financially unable to obtain adequate representation. Counsel shall be appointed for trial representation as provided in chapter 26 of title 11 of the District of Columbia Code (D.C. Code 11–2601 et seq.), and at least one counsel so appointed shall continue to represent the defendant until the conclusion of direct review of the judgment, unless replaced by the court with other qualified counsel. Except as otherwise provided in this section, chapter 26 of title 11 of the District of Columbia Code (D.C. Code 11–2601 et seq.) shall apply to appointments under this section. “‘(r) Representation After Finality of Judgment.—When a judgment imposing a sentence of death under this section has become final through affirmance by the Supreme Court on direct review, denial of certiorari by the Supreme Court on direct review, or expiration of the time for seeking direct review in the court of appeals or the Supreme Court, the government shall promptly notify the court that imposed the sentence. The court, within 10 days of receipt of such notice, shall proceed to make determination whether the defendant is eligible for appointment of counsel for subsequent proceedings. The court shall issue an order appointing one or more counsel to represent the defendant upon a finding that the defendant is financially unable to obtain adequate representation and wishes to have counsel appointed or is unable competently to decide whether to accept or reject appointment of counsel. The court shall issue an order denying appointment of counsel upon a finding that the defendant is financially able to obtain adequate representation or that the defendant rejected appointment of counsel with an understanding of the consequences of that decision. Counsel appointed pursuant to this subsection shall be different from the counsel who represented the defendant at trial and on direct review unless the defendant and counsel request a continuation or renewal of the earlier representation. “‘(s) Standards for Competence of Counsel.—In relation to a defendant who is entitled to appointment of counsel under subsection (q) or (r), at least one counsel appointed for trial representation must have been admitted to the bar for at least 5 years and have at least 3 years of experience in the trial of felony cases in the Federal district courts. If new counsel is appointed after judgment, at least one counsel so appointed must have been admitted to the bar for at least 5 years and have at least 3 years of experience in the litigation of felony cases in the Federal courts of appeals or the Supreme Court. The court, for good cause, may appoint counsel who does not meet these standards, but whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration of the seriousness of the penalty and the nature of the litigation. “‘(t) Claims of Ineffectiveness of Counsel in Collateral Proceedings.—The ineffectiveness or incompetence of counsel during proceedings on a motion under section 23–110 of the District of Columbia Code in a case under this section shall not be a ground for relief from the judgment or sentence in any proceeding. 106 STAT. 1442This limitation shall not preclude the appointment of different counsel at any stage of the proceedings. “‘(u) Time for Collateral Attack on Death Sentence.—A motion under section 23–110 of the District of Columbia Code attacking a sentence of death under this section, or the conviction on which it is predicated, shall be filed within 90 days of the issuance of the order under subsection (r) appointing or denying the appointment of counsel for such proceedings. The court in which the motion is filed, for good cause shown, may extend the time for filing for a period not exceeding 60 days. Such a motion shall have priority over all non-capital matters in the district court, and in the court of appeals on review of the district court’s decision. “‘(v) Stay of Execution.—The execution of a sentence of death under this section shall be stayed in the course of direct review of the judgment and during the litigation of an initial motion in the case under section 23–110 of the District of Columbia Code. The stay shall run continuously following imposition of the sentence and shall expire if— “‘(1) the defendant fails to file a motion under section 23–110 of the District of Columbia Code within the time specified in subsection (u), or fails to make a timely application for court of appeals review following the denial of such a motion by a district court; “‘(2) upon completion of district court and court of appeals review under section 23–110 of the District of Columbia Code, the Supreme Court disposes of a petition for certiorari in a manner that leaves the capital sentence undisturbed, or the defendant fails to file a timely petition for certiorari; or “‘(3) before a district court, in the presence of counsel and after having been advised of the consequences of such a decision, the defendant waives the right to file a motion under section 23–110 of the District of Columbia Code. “‘(w) Finality of the Decision on Review.—If one of the conditions specified in subsection (v) has occurred, no court there-after shall have the authority to enter a stay of execution or grant relief in the case unless— “‘(1) the basis for the stay and request for relief is a claim not presented in earlier proceedings; “‘(2) the failure to raise the claim is the result of governmental action in violation of the Constitution or laws of the United States, the result of the Supreme Court’s recognition of a new Federal right that is retroactively applicable, or the result of the fact that the factual predicate of the claim could not have been discovered through the exercise of reasonable diligence in time to present the claim in earlier proceedings; and “(3) the facts underlying the claim would be sufficient, if proven, to undermine the court’s confidence in the determination of guilt on the offense or offenses for which the death penalty was imposed. “‘(x) Commutation of Sentence of Death.—The Mayor shall have power to commute a sentence of death under this section to a sentence of life imprisonment, without parole. “‘(y) Definitions.—For purposes of this section— “‘(1) “State” includes a State of the United States, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and any other territory or possession of the United States; 106 STAT. 1443 “‘(2) “offense”, as used in paragraphs (2), (5), and (13) of subsection (e) and in paragraph (5) of this subsection means an offense under the law of the District of Columbia, another State, or the United States; “‘(3) “drug trafficking activity” means a felony punishable under D.C. Law 4–29 (D.C. Code 33—501 et seq.) or a pattern or series of acts involving one or more such felonies; “‘(4) “robbery” means obtaining the property of another by force or threat of force; “‘(5) “burglary” means entering or remaining in a building or structure in violation of the law of the District of Columbia, another State, or the United States, with the intent to commit an offense in the building or structure; “‘(6) “sexual abuse” means any conduct proscribed by chapter 109A of title 18, United States Code, whether or not the conduct occurs in the special maritime and territorial jurisdiction of the United States; “‘(7) “arson” means damaging or destroying a building or structure through the use of fire or explosives; “‘(8) “kidnapping” means seizing, confining, or abducting a person, or transporting a person without his or her consent; “(9) “pretrial release”, “probation”, “parole”, “supervised release”, and “other post-conviction conditional release”, as used in subsection (e)(6), mean any such release, imposed in relation to a charge or conviction for an offense under the law of the District of Columbia, another State, or the United States; and “‘(10) “public servant” means an employee, agent, officer, or official of the District of Columbia, another State, or the United States, or an employee, agent, officer, or official of a foreign government who is within the scope of section 1116 of title 18, United States Code.”. This title may be cited as the “District of Columbia Appropriations Act, 1993”.