Section 2402.

ages then held by an individual who would otherwise be subject to the death penalty, could make a binding assurance to that person that the penalty would not be imposed. This feature is aimed at the criminal offender who, having committed a capital offense and knowing he would receive the death penalty if caught, would otherwise have nothing more to lose by killing any hostages he may have acquired in order to cover his escape or delay his capture. Granting the Attorney General the power to give such a binding assurance will serve to protect innocent lives that might otherwise be lost and encourage criminals to surrender rather than attempt an escape.

SECTION 2402. PROCEDURE TO DETERMINE APPLICABILITY OF SENTENCE OF DEATH

Section 2402 describes the procedure to be utilized in a capital case to determine if the sentence of death is to be imposed. It provides for a two-stage or "bifurcated" trial in such cases. Under this system, the first stage of the trial is directed solely to the question of the defendant's guilt, and evidence relevant only to that issue is received. It is only after a determination is made that the defendant is guilty of the crime that the second or sentencing stage is entered, which has as its purpose the determination of the presence or absence of the aggravating and mitigating factors listed in section 2401. The separate sentencing hearing will not be held, however, if the government stipulates that none of the aggravating factors or one or more of the mitigating factors exists. In that case, the death penalty can not be imposed, and a separate sentencing hearing is not required.

The sentencing hearing will ordinarily be conducted before the same jury that determined the defendant's guilt. A separate jury will be impaneled for this purpose, however, if the defendant was convicted upon a plea of guilty, if the defendant was convicted after a trial before a court sitting without a jury, if the jury that determined the defendant's guilt has been discharged, or if review by a court of appeals of the original sentence of death has resulted in a remand for resentencing. The hearing may be held before the court alone upon the motion of the defendant and with the approval of the court and the government.

Subsection (b) requires that, in the sentencing hearing, the court disclose to the defendant or his counsel all the material contained in any presentence report, except that which the court determines must. be withheld for the protection of human life or national security. No such material withheld may be considered in determining the existence of any aggravating factors or the nonexistence of any mitigating factors set forth in section 2401.

Implicit in the language of this subsection is the intention that if evidence tending to establish one of the designated mitigating factors or tending to disprove one of the aggravating factors is withheld from the defendant, the sentence of death shall not be imposed. The burden of establishing aggravating factors may be met only with relevant information admissible under the rules of evidence applicable to criminal trials. This limitation is designed and intended to utilize the rules of evidence as a vehicle for insuring that the death penalty, if imposed, will rest on evidence of recognized probative value. Any

Section 2403.

evidence relevant to any of the mitigating factors, however, may be presented by either party regardless of its admissibility under the rules. This provision is designed to permit the defendant broader latitude in presenting matters that he feels to be pertinent to such listed factors; to avoid possible miscarriages of justice, the government is placed on the same footing in presenting contrary evidence. Both the government and defendant are to be accorded fair opportunity to present rebuttal evidence and to present argument as to the adequacy of the evidence on sentence.

The burden of establishing the existence of any of the aggravating factors is on the government and will not be satisfied unless they are proved beyond a reasonable doubt. The burden of establishing any of the mitigating factors, however, is on the defendant, and will be satisfied if established by a preponderance of the evidence. The burden placed upon the government, is recognized as a departure from current law. It is based upon a realization of the severity of the death penalty as a punishment and constitutes a further attempt to insure that the punishment is not erroneously implemented. The likelihood of this happening is still further reduced by the provision that the designated mitigating elements are to be liberally construed-a provision that is intended not to encourage misapplication of the chapter to avoid imposition of the penalty where the terms of the statute would warrant imposition, but to assure against erroneous application of the rule of strict construction to limit improperly the language of section 2401 (b).

Subsection (d) provides for a special verdict by the court or jury as to the existence or nonexistence of each of the aggravating and mitigating factors. Such a feature will facilitate review of decisions imposing the death sentence, enabling courts of appeal better to determine the existence of error.

Finally, subsection (e) provides that the death sentence will be imposed if one or more of the designated aggravating factors and none of the mitigating factors is found to exist, but that it shall not be imposed if none of the aggravating factors or one or more of the mitigating factors is found to exist. The determination as to whether or not the penalty will be imposed therefore follows automatically from the factual findings of the court or jury with regard to the existence of the designated aggravating and mitigating factors. As stated above, it is this feature that avoids the arbitrary imposition of the penalty that was the basis for the Furman decision.

SECTION 2403. IMPLEMENTATION OF A SENTENCE OF DEATH

This section calls attention to the fact that the implementation of a sentence to death is governed by the provisions of subchapter E of chapter 38.

PART IV. CRIMINAL JUSTICE ADMINISTRATION AND PROCEDURES

Part IV of the Criminal Code sets forth the sections of the new title 18 that deal with procedure and administration. The nine chapters contained in this part deal with investigative and law enforcement authority; ancillary investigative authority; rendition and extradition; jurisdiction and venue; appointment of counsel for indigent offenders; release and confinement pending judicial proceeding; disposition of juvenile or incompetent offenders; pretrial and procedure, evidence, and appellate review; and post-sentence administration.

The provisions contained in Part IV of the Code in large measure correspond to those sections of existing title 18 that appear in Parts II through V of that title (18 U.S.C. 3001 et seq.). The Committee has not attempted the comprehensive revision of this part of existing law that has been undertaken for Parts I through III of the new Criminal Code. Instead, with certain exceptions, the Committee has maintained the basic sections of current law while restructuring and repositioning them in a more logical order, removing or rewriting archiac language, deleting outdated sections, conforming the language used to the basic Code style, and incorporating the general definitions set forth in section 111.

The Committee believes that a total and comprehensive review and revision of all of the procedural and administrative sections of the Criminal Code is a worthwhile and necessary project which should be undertaken. It is the Committee's opinion that the scope of the present bill is so large and complex that an additional effort at full procedural reform is presently not warranted in terms of the time and effort that would be required and the extended delay that such an effort would engender. It is hoped that the Congress, the Department of Justice, and the bench and bar can turn their attention to a more fundamental review of Federal criminal procedure soon after enactment of the Code.

Despite the fact that the Committee did not undertake a fundamental revision of the procedural area, major innovations in several areas are contained in Part IV. These include such matters as a revision of the extradition laws,1 a comprehensive series of statutes on the determination and effect of insanity at all stages of the Criminal Justice process, a new procedure for the collection of criminal fines,3 and a revised series of statutes on parole matters. These innovative provisions will be discussed in some detail in the following portions of this Report.

The bulk of the sections contained in Part IV are, as noted, drawn largely from existing law. While major language changes have been

1 Subchapter B of chapter 32. 2 Subchapter B of chapter 36. 3 Subchapter B of chapter 38. Subchapter D of chapter 38.

made in many of these sections, these changes are primarily designed to conform the text of the statutes to the rest of the Code and to eliminate inconsistent and redundant phrases and wording. For this reason, the Committee has not prepared as detailed a report on these provisions as was prepared for the sections contained in Parts I, II, and III, and is, instead, relying on existing legislative and judicial history to provide the necessary meaning and content. Changes other than those of a minor nature, however, will be noted.

In preparing Part IV of the Code, the Committee is particularly indebted to Senator Burdick's Subcommittee on National Penitentiaries for its work on the subjects of parole and prison administration and to Senator Bayh's Subcommittee on Juvenile Delinquency for its work on juvenile delinquency procedures. Much of the efforts of these Subcommittees and their staffs are reflected in the provisions of Part IV of the Criminal Code covering those subjects.5

Subchapter A of chapter 36 (Juvenile Delinquency); subchapter C of chapter 38 (Imprisonment); and subchapter D of chapter 38 (Parole). The work of Senator Burdick's subcommittee is also reflected directly in the extensive provisions concerning the Bureau of Prisons, the Federal Prisons Industries. and the Parole Commission that are contained in section 725 of the subject bill, adding three new chapters to title 28 of the United States Code.

CHAPTER 30.-INVESTIGATIVE AND LAW ENFORCEMENT AUTHORITY

Chapter 30 contains two subchapters. The first designates the Federal investigatory agencies that are to have primary responsibility for detecting and investigating the commission of the various Federal offenses. The second specifies the basic law enforcement duties and authority of the Federal agencies which conduct the investigation of the most common Federal offenses, including virtually all of those contained in the new title 18.

SUBCHAPTER A.-INVESTIGATIVE AUTHORITY

(Sections 3001-3002)

This subchapter designates the investigative agencies that are to have the responsibility for detecting and investigating particular offenses within the new title 18 as well as those offenses located in the other titles of the United States Code. The Committee has concluded that it is the responsibility of the Congress to designate, at least in a general manner, the Federal investigative agency that is to have primary jurisdiction over each offense the Congress has defined.

This subchapter is necessary because of the very nature of the codification effort. As offenses were simplified and consolidated, and as jurisdictional factors were separated from the basic elements of the offenses and stated separately, all of the existing designations of investigatory authority became attenuated, and a full redesignation became necessary. To the greatest extent possible, the Committee has attempted to follow the existing investigatory jurisdictional lines. Sometimes, however, this could not be achieved. The Committee, therefore, has provided for a redesignation authority in sections 3001 (b) and 3002 (b) to permit a workable and flexible means of refining the necessarily broad dictates of sections 3001 (a) and 3002 (a).

The Committee wishes to stress the fact that it has carefully chosen to use both the terms "detection" and "investigation." Clearly the existing Federal investigatory agencies have the obligation not only to investigate offenses that are brought to their attention, but also actively to detect that fact that an offense has been or is being committed even if it has not yet come to light.

There are any number of sections scattered throughout title 18 and other titles of the United States Code under which specific investigatory authority for designated offenses is lodged in individual agencies. For instance, the Secret Service's investigative authority is contained in 18 U.S.C. 3056, that of the postal inspectors in 18 U.S.C. 3061, that of the Immigration and Naturalization Services in 8 U.S.C. 1324 (b), and the general investigatory authority of the Federal Bureau of Investigation in 28 U.S.C. 533 and 534. Under section 3001 these sections are combined so that all major investigatory and detection authority is set forth in one place.

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