To limit prosecutions until the Attorney General establishes standards for the application of the death penalty.

SA 1614. Mr. LEAHY submitted an amendment intended to be proposed by him to the bill S. 1390, to authorize appropriations for fiscal year 2010 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; which was ordered to lie on the table; as follows:

At the appropriate place, insert the following:

SEC. __. LIMITATION ON PROSECUTIONS.

(a) In General.--All prosecutions under section 249 of title 18, United States Code, as added by this Act, shall be undertaken pursuant to guidelines issued by the Attorney General.

(1) to guide the exercise of the discretion of Federal prosecutors and the Attorney General in their decisions whether to seek death sentences under such section when the crime results in a loss of life; and

(2) that identify with particularity the type of facts of such cases that will support the classification of individual cases in term of their culpability and death eligibility as low, medium, and high.

(b) Requirements for Death Penalty.--If the Government seeks a death sentence in crime under section 249 of title 18, United States Code, as added by this Act, that results in a loss of life--

(1) the Attorney General shall certify with particularity in the information or indictment how the facts of the case support the Government's judgment that the case is properly classified among the cases involving a hate crime that resulted in a victim's death;

(2) the Attorney General shall document in a filing to the court--

(A) the facts of the crime (including date of offense and arrest and location of the offense), charges, convictions, and sentences of all state and Federal hate crimes (committed before or after the effective date of this legislation) that resulted in a loss of life and were known to the Assistant United States Attorney or the Attorney General; and

(B) the actual or perceived race, color, national origin, ethnicity, religion, gender, sexual orientation, gender identity, or disability of the defendant and all victims; and

(3)(A) the court, either at the close of the guilt trial or at the close of the penalty trial, shall conduct a proportionality review in which it shall examine whether the prosecutorial death seeking and death sentencing rates in comparable cases in Federal prosecutions are both greater than 50 percent; and

(B) if the State fails to satisfy the test under subparagraph (A), by a preponderance of the evidence, the court shall dismiss the Government's action seeking a death sentence in the case.