The Death Penalty: Capital Punishment Legislation in the 110th Congress
The Death Penalty: Capital Punishment
th
Legislation in the 110 Congress
Updated October 15, 2008
Charles Doyle
Senior Specialist
American Law Division
The Death Penalty: Capital Punishment Legislation in
the 110th Congress
Summary
Most capital offenses are state crimes. In 1994, however, Congress revived the
death penalty as a federal sentencing option. More than a few federal statutes now
proscribe offenses punishable by death. A number of bills were offered during the
110th Congress to modify federal law in the area. None were enacted. One, S. 447
(Senator Feingold)/H.R. 6875 (Representative Kucinich), would have abolished the
federal death penalty. Another, H.J.Res. 80 (Rep McCollum), would have amended
the Constitution to abolish capital punishment as a sentencing alternative for either
state or federal crimes. Other proposed amendments would have eased constitutional
limitations on the death penalty as a sentencing option, particularly in cases involving
the rape of children, H.J.Res. 83 (Representative Broun), H.J.Res. 96 (Representative
Chabot).
Several bills would have increased the number of capital offenses to include one
or more newly created offenses or existing non-capital offenses newly designated as
capital offenses, e.g., H.R. 855 (Representative Lungren), H.R. 880 (Representative
Forbes), H.R. 1118 (Representative Keller), H.R. 1645 (Representative Gutierrez),
H.R. 2376 (Representative Franks), H.R. 3147 (Representative Wilson), H.R. 3150
(Representative Keller), H.R. 3156 (Representative Lamar Smith), S. 330 (Senator
Isakson), S. 607 (Senator Vitter), S. 1320 (Senator Kyl), S. 1348 (Senator Reid), and
S. 1860 (Senator Cornyn).
Numbered among the new capital offenses and newly designated capital
offenses were murder related to street gang offenses or Travel Act violations, murder
committed during and in relation to drug trafficking, murder committed in the course
of evading border inspection, murder of disaster assistance workers, and various
terrorism-related murders.
A third category of proposals would have adjusted in one way or another the
procedures used to try and sentence capital defendants, including those relating to
where a capital offense may be tried, the appointment of counsel in capital cases, the
pre-trial notification which the parties must exchange in capital cases, the procedures
that apply when the defendant claims to be mentally retarded, adjustments in the
statutory aggravating and mitigating circumstances, jury matters, and the site of
federal executions. Among the bills offering one or more of these proposals were:
H.R. 851 (Representative Gohmert), H.R. 880 (Representative Forbes), H.R. 1645
(Representative Gutierrez), H.R. 1914 (Representative Carter), H.R. 3150
(Representative Keller), H.R. 3153 (Representative Gerlach), H.R. 3156
(Representative Lamar Smith), S. 1320 (Senator Kyl), and S. 1860 (Senator Cornyn).
An abridged version of this report – without footnotes, appendices, and most
citations, is available as CRS Report RS22719, Capital Punishment Legislation in
the 110th Congress: A Sketch, by Charles Doyle.
Contents
In troduction ......................................................1
Constitutional Amendments.........................................1
Current Procedure.................................................2
Procedural Changes................................................5
Venue and Vicinage............................................5
Generally ................................................5
Specific offenses..........................................9
Appointment of Counsel.......................................10
Pre-trial Notice of Intent to Seek the Death Penalty..................11
Pre-trial Notice of Mitigating Factors.............................13
Mental Retardation............................................13
Aggravating and Mitigating Factors..............................17
Unequal codefendant treatment..............................18
Substantial planning.......................................18
Murder plus felonies......................................19
Obstruction of justice......................................20
Previous firearm conviction.................................21
Pecuniary gain...........................................22
Murder of a law enforcement officer..........................23
Sympathy, prejudice and other arbitrary factors.................23
Elimination of the term-of-years option........................24
Capital Juries................................................25
Site of Execution.............................................26
New Federal Capital Offenses.......................................27
Capital Punishment for Existing Non-Capital Offenses...................30
Abolition of Capital Punishment.....................................30
Statute of Limitations..........................................30
Appendix .......................................................32
Federal Rules of Criminal Procedure: Rule 12.2 ....................32
Federal Crimes Punishable by Death..............................33
The Death Penalty: Capital Punishment
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Legislation in the 110 Congress
Introduction
Most capital punishment cases are state cases.1 There are several federal crimes,2
however, for which the death penalty is a sentencing option. Legislation to amend
federal capital punishment law introduced in the 110th Congress included proposals
to amend the Constitution to remove impediments to imposition of the death penalty,
to abolish the federal death penalty, to increase the number of federal capital
offenses, and to adjust the procedure under which capital cases are tried and
sentencing determinations are made. None were enacted. This is an overview of
some of those proposals.
Constitutional Amendments
The United States Constitution does not mention capital punishment or death
penalty in so many words. It does, however, prohibit imposition of cruel and unusual
punishments as well as the deprivation of life without due process of law.3 The
Supreme Court recently held that the Eighth Amendment cruel and unusual
punishment clause made applicable to the states through the due process clause of the
Fourteenth Amendment precludes imposition of the death penalty for rape of child
under twelve years of age when the victim was neither killed nor intended to be4
killed.
Two constitutional amendments were offered at least in partial response.
H.J.Res. 96 (Representative Chabot) would simply have amended the Constitution
to state that “The penalty of death for the forcible rape of a child who has not attained
the age of 12 years does not constitute cruel and unusual punishment.” H.J.Res. 83
1 As of January 1, 2008, there were 3309 prisoners on death row throughout the United
States; 51 of them were there because of a violation of federal law, NAACP Legal Defense
Fund, Death Row USA 30-1 (Winter, 2008), available on October 11, 2008 at
[http://www.naacpldf.org/content/pdf/pubs/drusa/DRUSA_Winter 2008.pdf].
2 See generally Bazan, Capital Punishment: An Overview of Federal Death Penalty Statutes,
CRS Representative RL30962. A list of federal capital offenses is appended.
3 U.S. Const. Amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted”), Amend. V (“No person shall . . .
be deprived of life . . . without due process of law . . .”), Amend. XIV (“. . . nor shall any
Statte deprive any person of life . . . without due process of law. . .”).
4 Kennedy v. Louisiana, 128 S.Ct. 2641, 2645 (2008).
(Representative Broun) is equally terse although seemingly more sweeping: “The
death penalty is permitted under the Constitution and does not constitute cruel and
usual punishment, including when the death penalty is imposed for the rape of a child
under sixteen years old.” Both proposals would have removed any Eighth
Amendment impediment to capital punishment as a sentencing option in child rape
cases. The Broun proposal was apparently designed to remove any Eighth
Amendment impediment to capital punishment as a sentencing option in any case.
At some point, due process concerns may have contained the sweep of the proposals
had they been accepted.
H.J.Res. 80 (Representative McCollum), in contrast, would have abolished
capital punishment as a sentencing alternative for either state or federal crimes. The
proposed amendment would have extended to both pending and subsequent capital
cases. 5
Current Procedure
Existing federal law treats capital cases differently. There is no statute of
limitations for capital offenses.6 There is a preference for the trial of capital cases in7
the county in which they occur. Defendants in capital cases are entitled to two
attorneys, one of whom “shall be learned in the law applicable to capital cases.”8 The
Attorney General must ultimately approve the decision to seek the death penalty in
any given case.9 Defendants are entitled to notice when the prosecution intends to10
seek the death penalty, and at least three days before the trial, to a copy of the
indictment as well as a list of the government’s witnesses and names in the jury11
pool. Defendants have twice as many peremptory jury challenges in capital cases
as in other felony cases and prosecutors more than three times as many.12 Should the
defendant be found guilty of a capital offense the sentencing hearing procedures set
forth in chapter 228 of title 18 of the United States Code come into play.
The chapter divides federal capital offenses into three categories for purposes
of determining whether the death penalty should be imposed in light of the
aggravating and mitigating facts presented in the case.13 The first group consists of
5 H.J.Res. 80 (“. . . Neither the United States nor any State, nor any person acting under the
authority of the United States or a State, shall impose or carry out the penalty of death”).
6 18 U.S.C. 3281.
7 18 U.S.C. 3235.
8 18 U.S.C. 3005.
9 U.S. Department of Justice, United States Attorneys Manual, §§9-10.010 to 9-10.190,
available on August 13, 2007 at [http://www.usdoj.gov/usao/eousa/foia
_reading_room/usam] .
10 18 U.S.C. 3593(a).
11 18 U.S.C. 3432.
12 F.R.Crim.P. 24(b).
13 18 U.S.C. 3591-3593.
espionage and treason;14 the second, of homicide offenses;15 and the third, of drug
offenses. 16
In homicide cases, the sentencing hearing involves two determinations: whether
the defendant acted with the intent required in section 3591(a)(2) of the chapter and
whether the weighing of the pertinent aggravating and mitigating circumstances
warrant imposition of the death penalty in section 3592(c). In order to keep the two
inquiries distinct and to avoid confusion and unfair prejudice, federal courts will
generally permit the inquiries to be conduct sequentially.17
14 18 U.S.C. 3591(a)(1)(“A defendant who has been found guilty of – (1) an offense
described in section 794 or section 2381 . . . shall be sentenced to death if, after
consideration of the factors set forth in section 3592 in the course of a hearing held pursuant
to section 3593, it is determined that imposition of a sentence of death is justified, except
that no person may be sentenced to death who was less than 18 years of age at the time of
the offense”).
15 18 U.S.C. 3591(a)(2)(“any other offense for which a sentence of death is provided, if the
defendant, as determined beyond a reasonable doubt at the hearing under section 3593 – (A)
intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted
in the death of the victim; (C) intentionally participated in an act, contemplating that the life
of a person would be taken or intending that lethal force would be used in connection with
a person, other than one of the participants in the offense, and the victim died as a direct
result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing
that the act created a grave risk of death to a person, other than one of the participants in the
offense, such that participation in the act constituted a reckless disregard for human life and
the victim died as a direct result of the act, shall be sentenced to death if, after consideration
of the factors set forth in section 3592 in the course of a hearing held pursuant to section
3593, it is determined that imposition of a sentence of death is justified, except that no
person may be sentenced to death who was less than 18 years of age at the time of the
offense”).
16 18 U.S.C. 3591(b)(“(b) A defendant who has been found guilty of – (1) an offense
referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)),
committed as part of a continuing criminal enterprise offense under the conditions described
in subsection (b) of that section which involved not less than twice the quantity of controlled
substance described in subsection (b)(2)(A) or twice the gross receipts described in
subsection (b)(2)(B); or (2) an offense referred to in section 408(c)(1) of the Controlled
Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise
offense under that section, where the defendant is a principal administrator, organizer, or
leader of such an enterprise, and the defendant, in order to obstruct the investigation or
prosecution of the enterprise or an offense involved in the enterprise, attempts to kill or
knowingly directs, advises, authorizes, or assists another to attempt to kill any public officer,
juror, witness, or members of the family or household of such a person, shall be sentenced
to death if, after consideration of the factors set forth in section 3592 in the course of a
hearing held pursuant to section 3593, it is determined that imposition of a sentence of death
is justified, except that no person may be sentenced to death who was less than 18 years of
age at the time of the offense”).
17 United States v. Henderson, 485 F.Supp.2d 831, 871-72 (S.D. Ohio 2007); United States
v. Mayhew, 380 F.Supp.2d 936, 955-57 (S.D. Ohio 2005); United States v. Johnson, 362
F.Supp.2d 1043, 1099-111 (N.D. Iowa 2005); United States v. Jordan, 357 F.Supp.2d 889,
The same list of mitigating factors applies to each of the three categories of
capital offenses. The list consists of seven specific statutory factors – impaired
capacity, minor participation, disparate treatment of codefendants, no prior criminal
record, mental or emotional disturbance, and victim consent – but also includes a
catch-all, open-ended factor.18
Each of the three categories has its own list of statutory aggravating factors.
They share a catch-all, open-ended aggravating factor available for each of the three
categories of capital offenses which the jury may weigh,19 but the death penalty may
only be imposed after first finding at least one of the more specific, designated
aggravating factors.20
The list of designated aggravating factors relating to espionage and treason is
the shortest of the three: prior espionage or treason conviction, grave risk to national
security, and grave risk of death.21 The list of the designated homicide aggravating
factors contains sixteen entries, including the fact that the murder was committed
during the course of one of group of other federal offenses.22 The drug aggravating
factors focus on prior convictions, the risk to children, the use of firearms, and lethal
adulteration. 23
The jury must unanimously agree that an aggravating factor has been established
before the factor may be weighed in determining whether to impose the death
penalty; on the other hand the finding of a single juror is sufficient for consideration
18 18 U.S.C. 3592(a)(“In determining whether a sentence of death is to be imposed on a
defendant, the finder of fact shall consider any mitigating factor, including the following:
(1) Impaired capacity.– The defendant's capacity to appreciate the wrongfulness of the
defendant's conduct or to conform conduct to the requirements of law was significantly
impaired, regardless of whether the capacity was so impaired as to constitute a defense to
the charge. (2) Duress.– The defendant was under unusual and substantial duress, regardless
of whether the duress was of such a degree as to constitute a defense to the charge. (3)
Minor participation.– The defendant is punishable as a principal in the offense, which was
committed by another, but the defendant's participation was relatively minor, regardless of
whether the participation was so minor as to constitute a defense to the charge. (4) Equally
culpable defendants.– Another defendant or defendants, equally culpable in the crime, will
not be punished by death. (5) No prior criminal record.– The defendant did not have a
significant prior history of other criminal conduct. (6) Disturbance.– The defendant
committed the offense under severe mental or emotional disturbance. (7) Victim’s consent.–
The victim consented to the criminal conduct that resulted in the victim’s death. (8) Other
factors.– Other factors in the defendant's background, record, or character or any other
circumstance of the offense that mitigate against imposition of the death sentence”).
19 18 U.S.C. 3592(b), (c), (d) (“The jury, or if there is no jury, the court, may consider
whether any other aggravating factor for which notice has been given exists”).
20 18 U.S.C. 3593(e).
21 18 U.S.C. 3592(b).
22 18 U.S.C. 3592(c).
23 18 U.S.C. 3592(d).
of a mitigating factor.24 The death penalty may only be imposed if the jury
unanimously finds that the aggravating factors outweigh the mitigating factors; or if
the court so finds in the absence of a jury.25
Procedural Changes
During the 110th Congress, proposals were offered that would have modified
existing law relating to:
- where a capital offense may be tried,
- the appointment of counsel in capital cases,
- the pre-trial notification which the parties must exchange in capital cases,
- the procedures that apply when the defendant claims to be mentally retarded,
- adjustments in the statutory aggravating and mitigating circumstances,
- jury matters, and
- the site of federal executions.
Venue and Vicinage
Generally. The Constitution provides that “the trial of all crimes . . . shall be
held in the state where the said crimes shall have been committed; but when not
committed within any State, the trial shall be at such place or places as the Congress
may by law have directed,”26 and that “in all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which district shall have been
24 18 U.S.C. 3593(d)(“The jury, or if there is no jury, the court, shall consider all the
information received during the hearing. It shall return special findings identifying any
aggravating factor or factors set forth in section 3592 found to exist and any other
aggravating factor for which notice has been provided under subsection (a) found to exist.
A finding with respect to a mitigating factor may be made by 1 or more members of the jury,
and any member of the jury who finds the existence of a mitigating factor may consider such
factor established for purposes of this section regardless of the number of jurors who concur
that the factor has been established. A finding with respect to any aggravating factor must
be unanimous. If no aggravating factor set forth in section 3592 is found to exist, the court
shall impose a sentence other than death authorized by law”).
25 18 U.S.C. 3593(e)(“If, in the case of – (1) an offense described in section 3591(a)(1), an
aggravating factor required to be considered under section 3592(b) is found to exist; (2) an
offense described in section 3591(a)(2), an aggravating factor required to be considered
under section 3592(c) is found to exist; or (3) an offense described in section 3591(b), an
aggravating factor required to be considered under section 3592(d) is found to exist, the
jury, or if there is no jury, the court, shall consider whether all the aggravating factor or
factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist
to justify a sentence of death, or, in the absence of a mitigating factor, whether the
aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon
this consideration, the jury by unanimous vote, or if there is no jury, the court, shall
recommend whether the defendant should be sentenced to death, to life imprisonment
without possibility of release or some other lesser sentence”).
26 U.S. Const. Art. III, §2, cl. 3.
previously ascertained by law.”27 From the beginning,28 Congress has provided in
language that now appears in 18 U.S.C. 3235, that where possible capital cases
should be tried in the county in which they occur.29 It has also long specifically
provided that murder and manslaughter cases shall be tried where the death-
inflicting injury occurs regardless of where the victim dies,30 as 18 U.S.C. 3236 now
states.31 Furthermore, for some time32 it has provided in the words of 18 U.S.C. 3237
that multi-district crimes may be tried where they are begun, continued, or completed
and that offenses involving the use of the mails, transportation in interstate or foreign
commerce, or importation into the United States may be tried in any district from,
through, or into which commerce, mail, or imports travel.33
Although some of the venue proposals offered in the 110th Congress dealt
primarily with venue for newly created or newly amended federal capital offenses,
H.R. 3156 (Representative Lamar Smith) and S. 1860 (Senator Cornyn) addressed
venue in capital cases generally. They struck the language of section 3235 that calls
for the trial of capital cases in the county in which they occur if possible. In its place,
they would have installed two subsections whose precise scope was somewhat
uncertain.34
27 U.S. Const. Amend. VI.
28 1 Stat. 88 (1789).
29 “The trial of offenses punishable with death shall be had in the county where the offense
was committed, where that can be done without great inconvenience,” 18 U.S.C. 3235.
30 35 Stat. 1152 (1909).
31 “In all cases of murder or manslaughter, the offense shall be deemed to have been
committed at the place where the injury was inflicted, or the poison administered or other
means employed which caused the death, without regard to the place where the death
occurs,” 18 U.S.C. 3236.
32 14 Stat. 484 (1867).
33 “(a) Except as otherwise expressly provided by enactment of Congress, any offense
against the United States begun in one district and completed in another, or committed in
more than one district, may be inquired of and prosecuted in any district in which such
offense was begun, continued, or completed. Any offense involving the use of the mails,
transportation in interstate or foreign commerce, or the importation of an object or person
into the United States is a continuing offense and, except as otherwise expressly provided
by enactment of Congress, may be inquired of and prosecuted in any district from, through,
or into which such commerce, mail matter, or imported object or person moves,” 18 U.S.C.
At least one federal appellate court has held that the specific murder-manslaughter
instruction of section 3236 overrides the general instructions of section 3237(a) only with
regard to “unitary” murder offenses, such as murder by a federal prisoner, United States v.th
Barnette, 211 F.3d 803, 814 (4 Cir. 2000). Section 3236 does not apply, the court held, to
“death resulting” cases, cases where murder is a sentencing element rather than a substantive
element of the offense, such as in cases of a violation of 18 U.S.C. 924(c)(use of a firearm
during and relating to the commission of crime of violence), the sentence for which is
determined in part by whether death resulted from the commission of the offense, Id.
34 “(a) The trial of any offense punishable by death shall be held in the district where the
offense was committed or in any district in which the offense began, continued, or was
The proposal was apparently intended to repeal both the “county trial in capital
cases” feature of section 3235 and, by indirection, the murder portion of the “murder-
manslaughter trial” feature of section 3236.35 It seemed to replicate the continuing
offense language of section 3237 with one significant addition; it would have
permitted trial where commerce-related conduct occurred. The scope of the proposed
amendment would likely have depended in part on the application of constitutional
constraints.
The proposed amendment must operate within constitutional venue and vicinage
limitations, that is that “The trial of all crimes . . . shall be held in the state where the
said crimes shall have been committed,” and that “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed.”36
The Supreme Court in United States v. Cabrales held that in light of these
provisions the crime of money laundering committed in Florida could not be tried in
Missouri where the laundered funds had been criminally generated – absent other
circumstances.37 Shortly thereafter, the Court held in United States v. Rodriguez-
Moreno, that the crime of using a firearm during and in relation to the crime of
kidnaping could be tried in New Jersey into which the victim had been carried,
notwithstanding the fact that the firearm was acquired and used in Maryland after the
victim had been moved there from New Jersey.
Cabrales is not as restrictive as it might seem at first; nor is Rodriguez-Moreno
as permissive. Cabrales laundered the Missouri drug money in Florida, but there was
no evidence that she was a member of the Missouri drug trafficking conspiracy or
that she had transported the money from Missouri to Florida. The Court
acknowledged that she might have been tried in Missouri had either been the case.38
Rodriguez-Moreno and his confederates kidnapped a drug trafficking associate
and transported him over the course of time from Texas to New Jersey and then to
Maryland. Rodriguez-Moreno acquired the firearm with which he threatened the
kidnap victim in Maryland but was tried in New Jersey for using a firearm “during
completed. (b) If the offense, or related conduct, under subsection (a) involves activities
which affect interstate or foreign commerce, or the importation of an object or person into
the United States, such offense may be prosecuted in any district in which those activities
occurred,” proposed 18 U.S.C. 3235.
35 The manslaughter features of 3236 presumably continue in place since they are not capital
cases and thus by definition are beyond the reach of the proposed capital venue provisions
of the amended section 3235.
36 U.S. Const. Art. III, §2, cl.3; U.S. Const. Amend. VI.
37 524 U.S. 1, 7-10 (1998)(“The money laundering counts included no act committed by
Cabrales in Missouri. . . nor did the government charge that Cabrales transported the money
from Missouri to Florida. . . . [T]he counts at issue do not charge Cabrales with conspiracy;
they do not link her to, or assert her responsibility for, acts done by others. . . . In the counts
at issue, the government indicted Cabrales for transactions which began, continued, and
were completed only in Florida”).
38 524 U.S. at 8, 10.
and in relation to a crime of violence [kidnaping]” in violation of 18 U.S.C.
924(c)(1). Section 924(c)(1) in the eyes of the Court has “two distinct conduct
elements . . . using and carrying of a gun and the commission of a kidnaping.”39 A
crime with distinct conduct elements may be tried wherever any of those elements
occurred; kidnaping is a continuous offense that in this case began in Texas and
continued through New Jersey to Maryland; venue over the kidnaping, a conduct
element of the section 924(c)(1), was proper in Texas, New Jersey or Maryland;
consequently venue over the violation of section 924(c)(1) was proper in either
Texas, New Jersey or Maryland.40
The Court was quick to distinguish Cabrales from Rodriguez-Moreno: “The
existence of criminally generated proceeds [in Cabrales] was a circumstance element
of the offense but the proscribed conduct – defendant’s money laundering activity –
occurred after the fact of the offense begun and completed by others.” In Rodriguez-
Moreno, “given the ‘during and in relation to’ language, the underlying crime of
violence is a critical part of the §924(c)(1) offense.”41 Subsequent lower federal
appellate courts have read Cabrales and Rodriguez-Moreno to require that a crime
be tried where at least one of its elements occurs.42
It is not clear how the proposed venue amendment would have fared in light of
Cabrales and Rodriguez-Moreno. It stated that “(a) The trial for any offense
punishable by death shall be held in the district where the offense was committed or
in any district in which the offense began, continued, or was completed. (b) If the
offense, or related conduct, under subsection (a) involves activities which affect
interstate or foreign commerce, or the importation of an object or person into the
United States, such offense may be prosecuted in any district in which those activities
occurred.”43 The amendment would appeared to have permitted trial of an offense
in a district in which related conduct affecting interstate or foreign commerce
39 526 U.S. at 280 (emphasis added).
40 526 U.S. at 280-82.
41 526 U.S. at 280-81 n.4. The Court declined to address, however, the so-called “effects”
test used by the some of the lower federal courts in obstruction of justice and Hobbs Act
(“effect”) cases to determine the presence of proper venue, 526 U.S. at 279 n.2.
42 United States v. Smith, 452 F.3d 323, 335 (4th Cir. 2006)(“venue on a count is proper only
in a district in which an essential conduct element of the offense takes place”); United Statesth
v. Clenney, 434 F.3d 780, 782 (5 Cir. 2005); United States v. Ramirez, 420 F.3d 134, 139st
(2d Cir. 2005); United States v. Salinas, 373 F.3d 161, 164 (1 Cir. 2004); United States v.
Morgan, 393 F.3d 192, 196 (D.C.Cir. 2004)(internal citations and quotation marks omitted)
(“When the statute proscribing the offense does not contain an express venue provision, the
locus delicti must be determined from the nature of the crime alleged and the location of theth
act or acts constituting it”); United States v. Wood, 364 F.3d 704, 711 (6 Cir. 2004); Unitedth
States v. Breitweiser, 357 F.3d 1249, 1253 (11 Cir. 2004). Congress may not bring into
effect an express statutory provision in contravention of constitutional demands, but it may
limit the choice of venue where the Constitution permits trial in more than one place, and
it may define the place of trial from crimes committed outside any of the states, U.S.Const.
Art. III, §2, cl.3.
43 Proposed 18 U.S.C. 3235.
occurred even if the offense itself and each of its elements were committed entirely
in another district.
The Cabrales’ money generating drug trafficking in Missouri would seem to
qualify as “conduct related” to the laundering in Florida for purposes of the proposal,
and yet in Cabrales that was not enough. Nor would the proposal always appear to
meet Rodriguez-Moreno’s “conduct element” standard. There was nothing in the
proposal that would have required that the “related conduct affecting interstate
commerce” be an element of the offense to be tried. In fact, the alternative wording
– “if the offense, or related conduct . . . involves activities which affect interstate
commerce” – seemed to contemplate situations in which affecting commerce was not
an element, conduct or otherwise, of the offense. Such applications might have
appeared to a reviewing court to do more than the Constitution permits.
Specific offenses. In the case of proposed venue provisions for new or
existing federal capital offenses, one common proposal would have built upon the
scheme approved in Rodriguez-Moreno. The statute before the Court there, 18
U.S.C. 924(c)(1), outlaws the use of a firearm “during and in relation” to a crime of
violence or serious drug offense. Several bills – e.g., H.R. 880 (Representative
Forbes), H.R. 3150 (Representative Keller), H.R. 3156 (Representative Lamar
Smith), and S. 1860 (Senator Cornyn) – would have created a new federal crime, one
that would have prohibited the commission of a crime of violence “during and in
relation” to a drug trafficking offense, proposed 21 U.S.C. 865. They would have
permitted prosecution for such an offense “in (1) the judicial district in which the
murder or other crime of violence occurred; or (2) any judicial district in which the
drug trafficking crime may be prosecuted,” proposed 21 U.S.C. 865(b).
This analogy to Rodriguez-Moreno seems likely to have worked. The new
crime, like section 924(c) in Rodriguez-Moreno, would have two elements, a crime
of violence and a simultaneous, related drug trafficking offense. Rodriguez-Moreno
involved a continuing offense. Many drug trafficking offenses are likely to be
considered continuing offenses for venue purposes,44 but some may not be. It should
not matter. Rodriguez-Moreno insists only that the crime may be tried where one of
its conduct elements (crime of violence or drug trafficking crime) occur.
The several of the same bills – e.g., H.R. 880 (Representative Forbes), H.R.
3150 (Representative Keller), H.R. 3156 (Representative Lamar Smith), and S. 1860
(Senator Cornyn) – would have added, to the existing federal capital offense of
committing a crime of violence in aid of a racketeering (RICO) offense, an explicit
venue provision.45 The addition would have stated that prosecution for a violation
44 E.g., United States v. Zidell, 323 F.3d 412, 422 (6th Cir. 2003)(possession with intent to
distribute); United States v. Brown, 400 F.3d 1242, 1250 (10th Cir. 2005)(manufacturing
methamphetami ne).
45 “Whoever, as consideration for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or maintaining or increasing position in
an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to
commit a crime of violence against any individual in violation of the laws of any State or
of section 1959 might be brought where the crime of violence occurs or where the
racketeering activity of the enterprise occurs.46 Even without the explicit addition,
the Second Circuit has held that since a RICO violation is an element of a section
1959 offense, venue for trial of a violation of section 1959 is proper wherever the
underlying RICO might be tried, i.e., wherever an element of a RICO violation
occurs. 47
Appointment of Counsel
Capital defendants are entitled to the assignment of two attorneys for their
defense.48 There is some uncertainty over whether they are to be appointed
immediately following indictment for a capital offense or whether they need only be
appointed “promptly” sometime prior to trial;49 and whether the right expires with the
decision of the government not to seek the death penalty.50
The Justice Department expressed concern that under existing law the Fourth
Circuit has held that the right to appoint counsel does not expire with the
government’s decision not to seek the death penalty. The Department also noted the
inefficiencies experienced in other circuits in cases where it is clear the death penalty
will not be sought but where a second attorney must be retained until the formal
decision is announced.51
the United States, or attempts or conspires so to do, shall be punished – . . .” 18 U.S.C.
46 Proposed 18 U.S.C. 1959(c).
47 United States v. Saaverdra, 223 F.3d 85, 91-2 (2d Cir. 2000); see also United States v.
Williams, 181 F.Supp.2d 267, 290-92 (S.D.N.Y. 2001).
48 18 U.S.C. 3005.
49 Id. (“Whoever is indicted for treason or other capital crime shall be allowed to make his
full defense by counsel; and the court before which the defendant is to be tried, or a judge
thereof, shall promptly, upon the defendant's request, assign 2 such counsel . . . ”); In rest
Sterling-Suarez, 306 F.3d 1170, 1173 (1 Cir. 2002)(“. . . counsel is to be appointed
reasonably soon after the indictment and prior to the time that submissions are to be made
to persuade the Attorney General not to seek the death penalty”).
50 United States v. Boone, 245 F.3d 352, 359-61(4th Cir. 2001)(right exists regardless of
whether the government decides to seek the death penalty); contra, United States v.th
Waggoner, 339 F.3d 915, 917 (9 Cir. 2003)(“the district court properly concluded that the
defendant was not entitled to be represented by two attorneys after the government filed
formal notice that it did not intend to seek the death penalty”); cf., United States v. Casseus,
282 F.3d 253, 256 (3d Cir. 2002)(“the purpose of 18 U.S.C. 3005 is to allow a capital
defendant to ‘make his full defense by counsel.’ This, they were fully able to do. Moreover,
after the government declared that it would not seek the death penalty, the appellants were
no longer capital defendants”).
51 Hearing at 14-5 (“Because there is no procedural difference between the trial of a non-
capital offense and the non-death penalty trial of a capital offense, it is clear that the
appointment of learned capital counsel was intended to provide a defendant with the
assistance of a second counsel in a death penalty prosecution. Despite the clear intent to
provide additional assistance to defendants in death penalty prosecutions, the Fourth Circuit
has construed the existing provisions of section 3005 in such a way as to require a trial court
H.R. 851 (Representative Gohmert) would have amended section 3005 so that
prosecutor’s notice of an intent to seek the death penalty, rather than indictment for
a capital offense, would trigger the right to the appointment of second counsel.52
Critics have suggested that both the interests of the defendant and the interests of the
government are best served by early appointment of counsel, expert in defense of
capital cases.53
Pre-trial Notice of Intent to Seek the Death Penalty
Section 3593 obligates the prosecutor to advise the defendant and the court, “a
reasonable time before trial” or before the acceptance of a plea, of the government’s
intention to seek the death penalty.54 The Fourth and Eleventh Circuits have held that
a failure to provide timely notice may preclude the effort of a prosecutor to seek the
death penalty. More exactly, they have held (1) that a death notice filed unreasonably
close to the date set for trial is properly subject to a motion to strike the government’s
death notice, without which the government may not seek the death penalty, and (2)
that an interlocutory appeal may be taken from the denial of such a motion.55 The
to retain capital counsel through the conclusion of the trial – even in those cases in which
the Attorney General decides not to seek the death penalty. . . Second, the courts have not
infrequently complained about the expenditure of resources in providing expert capital
counsel in cases in which, in a court’s view, a death penalty prosecution is unlikely.
Currently, the right to second, learned capital counsel adheres upon indictment for a capital
offense. Courts outside the Fourth Circuit have construed this to require the assistance of
expert counsel only until there is as decision not to seek the death penalty”)(Griffey
statement).
52 Proposed 18 U.S.C. 3005(a).
53 Death Penalty Reform Act of 2006: Hearing Before the Subcomm. on Crime, Terrorism,
and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 2d Sess.
(Hearing), 44 (prepared statement of David L. Bruck, Federal Death Penalty Resource
Counsel, Clinical Professor of Law & Director, Virginia Capital Case Clearinghouse,
Washington & Lee School of Law)(Bruck statement), quoting in In re Sterling-Suarez, 306
F.3d at 1175 (“In some cases the early appointment of learned counsel . . . may well make
the difference as to whether the Attorney General seeks the death penalty. . . where the
opposition succeeds in persuading the Attorney General not to seek the death penalty, a
substantial additional expenditure on the trial and sentencing phase of the as capital case is
like to be avoided”).
54 18 U.S.C. 3593(a)(“If, in a case involving an offense described in section 3591, the
attorney for the government believes that the circumstances of the offense are such that a
sentence of death is justified under this chapter, the attorney shall, a reasonable time before
the trial or before acceptance by the court of a plea of guilty, sign and file with the court,
and serve on the defendant, a notice – (1) stating that the government believes that the
circumstances of the offense are such that, if the defendant is convicted, a sentence of death
is justified under this chapter and that the government will seek the sentence of death; and
(2) setting forth the aggravating factor or factors that the government, if the defendant is
convicted, proposes to prove as justifying a sentence of death”).
55 United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003); United States v. Wilk, 452 F.3d 1208
(11th Cir. 2006); see also United States v. Ayala-Loopez, 457 F.3d 107, 108 (1st Cir.
2006)(assuming with some reservations that interlocutory appeal was available, but
concluding that the defendant had been given timely notice).
Second Circuit, on the other hand, concluded that section 3593(a) does not create a
right to avoid the death penalty because of the government’s untimely death notice
and that consequently a refusal to strike the death notice is not a matter from which
an interlocutory appeal may be taken.56
Prosecutors will sometimes provide a “protective death notice” in order to
preserve the option to seek the death penalty before a final decision is made. The
notice is withdrawn should the Attorney General decide not to seek the death penalty.
The arrangement is not one which the Justice Department prefers.57 On the other
hand, both the right to a speedy trial and the fact that the defendant in a capital case
is not likely to be free on bail prior to trial may argue for such incentives for
expeditious prosecutorial determinations.
H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith),
and S. 1860 (Senator Cornyn) would have amended section 3593(a) to authorize a
continuance in the face of a delayed notification of an intent to seek the death
penalty. They also would have made it clear that a defendant may not foreclose the
government’s option by pleading guilty before prosecutors have had time to seek the
Attorney General’s approval to seek the death penalty.58
56 United States v. Robinson, 473 F.3d 487, 491-92 (2d Cir. 2007).
57 Hearing at 12-3 (“All agree that the defendant must be put on notice in a timely manner
of the government’s intention to seek the death penalty. Unfortunately, in United States v.th
Ferebe, 332 F.3d 722 (4 Cir. 2003), the Fourth Circuit concluded that the determination
of whether a notice of intent has been filed in a timely manner must be made with respect
the trial date in effect at the time the notice is filed and without regard to the additional
preparation and issues resulting from a death penalty prosecution. In other words in the
Fourth Circuit, an actual trial date cannot be continued to allow the defense adequate time
to prepare for the capital punishment hearing. Particularly in those courts with what is
know[n] as a ‘rocket docket,’ the Ferebe rule could result in the dismissal of a death notice.
In some instances, in order not to forfeit the ability to seek a death sentence, the Department
has been forced to file a ‘protective death notice.’ A ‘protective death notice’ is one that is
filed in a case before the case has been fully reviewed and the Attorney General has made
a final decision whether or not to seek the death penalty. In cases in which the Attorney
General decides not to seek the death penalty, the protective notice is then withdrawn. The
Department of Justice is committed to the goal of the consistent, fair and even-handed
application of the death penalty, regardless of geography and local sentiment. The decision
whether it is appropriate to seek the death penalty involves awesome responsibilities and
consequences. The Ferebe court’s understanding of the existing section 3593(a) provisions
favors expedience over considered decision-making, and when a considered decision cannot
be reached in a limited amount of time, it forces the government to choose between filing
a protective death notice or abandoning the goal of consistency and evenhandedness in the
application of the death penalty”)(Griffey statement).
58 “(a) Notice by the government.– If, in a case involving an offense described in section
3591, the attorney for the government believes that the circumstances of the offense are such
that a sentence of death is justified under this chapter, the attorney shall, a reasonable time
before the trial or before acceptance by the court of a plea of guilty, sign and file with the
court, and serve on the defendant, a notice –
(1) stating that the government believes that the circumstances of the offense are such
that, if the defendant is convicted, a sentence of death is justified under this chapter and that
the government will seek the sentence of death; and (2) setting forth the aggravating factor
Pre-trial Notice of Mitigating Factors
H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith),
and S. 1860 (Senator Cornyn) would have also balanced the prosecution’s obligation
to disclose any aggravating factors upon which it intends to rely with a similar
defense obligation to notify the prosecution of mitigating factors upon which it
intends to rely when the prosecution seeks the death penalty.59 Elsewhere, once the
government has announced its intention to seek the death penalty, the bills would
have afforded defendants the advantage of a continuance when necessary to address
the additional issues raised.60 Here, the bills would have afforded the prosecution a
similar benefit.61 Critics may question the symmetry.62
Mental Retardation
Neither the insanity defense nor the prohibitions against trial of the mentally
incompetent necessarily preclude prosecution and conviction of the mentally
retarded.63 Nevertheless, section 3592(a) seems to permit evidence of mental
or factors that the government, if the defendant is convicted, proposes to prove as justifying
a sentence of death.
The notice must be filed a reasonable time before trial or before acceptance by the court of
a plea of guilty. The court shall, where necessary to ensure adequate preparation time for
the defense, grant a reasonable continuance of the trial. If the government has not filed a
notice of intent to seek the death penalty or informed the court that a notice of intent to seek
the death penalty will not be filed, the court shall not accept a plea of guilty to an offense
described in section 3591 without the concurrence of the government. . . ” Proposed 18
U.S.C. 3593 with deleted language struck out and additional language in italics.
59 Proposed 18 U.S.C. 3593(b)(1)(“(1) If, as required under subsection (a), the government
has filed notice seeking a sentence of death, the defendant shall, a reasonable time before
the trial, sign and file with the court and serve on the attorney for the government, notice
setting forth the mitigating factor or factors that the defendant proposes to prove mitigate
against imposition of a sentence of death. . .”).
60 Proposed 18 U.S.C. 3593(a).
61 Proposed 18 U.S.C. 3593(b)(3)(“Following the filing of a defendant’s notice under this
subsection, the court shall, where necessary to ensure adequate preparation time for the
government, grant a reasonable continuance of the trial”).
62 Hearing at 42 (“While this proposal has a superficially attractive symmetry to the
government’s obligation to provide pre-trial notice of aggravating factors, it overlooks the
real differences between aggravation and mitigation. Most importantly, an across-the-board
notice requirement for defendants would effectively require many defendants to
acknowledge factual guilt before trial, and would thus be unconstitutional. A defendant
cannot personally ‘sign’ and file notice of intent to provide a mitigating factor (such as
having committed the offense under duress, or under the influence of extreme emotional
disturbance) without admitting guilt of the underlying offense. That is why, to my
knowledge, no state death penalty statute requires this kind of broad pre-trial notice of
mitigating factors, and why this provision would be unenforceable under the Fifth
Amendment”)(Bruck statement).
63 Atkins v. Virginia, 536 U.S. 304, 318 (2002)(“Mentally retarded persons frequently know
the difference between right and wrong and are competent to stand trial”).
retardation as a mitigating factor under section 3592(a)(1) (impaired capacity),
3592(a)(6)(disturbance), or 3592(a)(8)(mitigation generally).64 Moreover, neither the
Constitution nor federal statutory provisions allow the execution of a federal capital
defendant suffering from mental retardation.65
The limited available case law suggests – with some exception – that the
determination of the issue may be assigned to the court (rather than the jury) to be
established by the defendant under preponderance of the evidence standard prior to
trial.66 As for the definition of mental retardation, the Court in Atkins cites two
clinical definitions of mental retardation,67 which it encapsulates with the observation
that, “As discussed above, clinical definitions of mental retardation require not only
subaverage intellectual functioning, but also significant limitations in adaptive skills
such as communication, self-care, and self-direction that became manifest before age
64 18 U.S.C. 3592(a)(“In determining whether a sentence of death is to be imposed on a
defendant, the finder of fact shall consider any mitigating factor, including the following:
(1) Impaired capacity.– The defendant's capacity to appreciate the wrongfulness of the
defendant's conduct or to conform conduct to the requirements of law was significantly
impaired, regardless of whether the capacity was so impaired as to constitute a defense to
the charge. . . (6) Disturbance.– The defendant committed the offense under severe mental
or emotional disturbance. . .(8) Other factors.– Other factors in the defendant's background,
record, or character or any other circumstance of the offense that mitigate against imposition
of the death sentence”); United States v. Cisneros, 385 F.Supp.2d 567 (E.D.Va. 2005).
65 Atkins v. Virginia, 536 U.S. 304, 321 (2002); 18 U.S.C. 3596(c).
66 United States v. Nelson, 419 F.Supp.2d 891, 892-94 (E.D.La. 2006); United States v.
Sablan, 461 F.Supp.2d 1239, 1240-243 (D.Colo. 2006); but see United States v. Cisneros,
385 F.Supp.2d 567, 571 (E.D.Va. 2005)(agreeing with the preponderance standard but
concluding that the question should be handled by the jury following conviction with the
understanding that if unanimous the death penalty might not be imposed and if found by
fewer than twelve of the jurors considered as mitigation).
67 “The American Association on Mental Retardation (AAMR) defines mental retardation
as follows: ‘Mental retardation refers to substantial limitations in present functioning. It
is characterized by significantly subaverage intellectual functioning, existing concurrently
with related limitations in two or more of the following applicable adaptive skill areas:
communication, self-care, home living, social skills, community use, self-direction, health
and safety, functional academics, leisure, and work. Mental retardation manifests before
age 18’ Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th
ed.1992). The American Psychiatric Association’s definition is similar: ‘The essential
feature of Mental Retardation is significantly subaverage general intellectual functioning
(Criterion A) that is accompanied by significant limitations in adaptive functioning in at
least two of the following skill areas: communication, self-care, home living, social/
interpersonal skills, use of community resources, self-direction, functional academic skills,
work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years
(Criterion C). Mental Retardation has many different etiologies and may be seen as a final
common pathway of various pathological processes that affect the functioning of the central
nervous system.’ Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000).
‘Mild’ mental retardation is typically used to describe people with an IQ level of 50-55 to
approximately 70. Id., at 42-43,” 536 U.S. at 308 n.3.
H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith),
and S. 1860 (Senator Cornyn) would have made several procedural adjustments to
accommodate claims of mental retardation in federal capital cases. First, as noted
earlier they would have established a reciprocal pre-trial notification requirement.
After the prosecution notified the defendant of its intention to seek the death penalty
and of the aggravating factors upon which it intends to rely, the defendant would
have been required to notify the government of the mitigating factors, including
mental retardation, upon which he intended to rely.68 Second, they would have called
for comparable notice when the defendant intended to claim mental retardation as a
bar to execution.69 Third, they would have given the prosecution the right to an
independent mental health examination of any defendant claiming retardation and to
a continuance to prepare for trial and sentencing if necessary.70 Fourth, they would
have conditioned the defendant’s presentation of evidence and argument relating to
mental retardation, at least for mitigation purposes, to instances where the defendant
had provided the required prior notification.71 Fifth, they would have stated that the
defendant bears the burden of establishing mental retardation by a preponderance of
68 Proposed 18 U.S.C. 3593(b)(1)(“(1) If, as required under subsection (a), the government
has filed notice seeking a sentence of death, the defendant shall, a reasonable time before
the trial, sign and file with the court and serve on the attorney for the government, notice
setting forth the mitigating factor or factors that the defendant proposes to prove mitigate
against imposition of a sentence of death. . .”).
69 Proposed 18 U.S.C. 3593(b)(1)(“(1) . . . In any case in which the defendant intends to
raise the issue of mental retardation as precluding a sentence of death, the defendant shall,
a reasonable time before trial, sign and file with the court, and serve on the attorney for the
government, notice of such intent).”
70 Proposed 18 U.S.C. 3593(b)(2), (3) (“(2) When a defendant makes a claim of mental
retardation or intends to rely on evidence of mental impairment, or other mental defect or
disease as a mitigating factor under this section, the government shall have the right to an
independent mental health examination of the defendant. A mental health examination
ordered under this subsection shall be conducted by a licensed and certified psychiatrist,
psychologist, neurologist, psychopharamacologist, or other allied mental health
professional. If the court finds it appropriate, more than one such professional shall
perform the examination. To facilitate the examination, the court may commit the person
to be examined for a reasonable period, not to exceed 30 days to the custody of the Attorney
General for placement in a suitable facility. Unless impracticable, the psychiatric or
psychological examination shall be conducted in a suitable facility reasonably close to the
court. The director of the facility may apply for a reasonable extension, but not to exceed
15 days upon a showing of good cause that the additional time is necessary to observe and
evaluate the defendant. (3) Following the filing of a defendant’s notice under this
subsection, the court shall, where necessary to ensure adequate preparation time for the
government, grant a reasonable continuance of the trial”).
71 Proposed 18 U.S.C. 3593(d)(“(d) Proof of mitigating and aggravating factors. – . . . The
defendant may present any information relevant to a mitigating factor for which notice has
been provided under subsection (b). If the defendant has raised the issue of mental
retardation as required under subsection (b), the defendant may introduce information
relevant to mental retardation.. . ”). The caption (“proof of mitigating and aggravating
factors”) could be read to mean that the provisions are not intended to apply to the statutory
and constitutional bars to execution. The articulation of separate burden of proof provisions
for first mitigating factors and then mental retardation issues, quoted below, renders such
an interpretation more uncertain.
the evidence.72 Sixth, they would have instructed the trier of fact, be it judge or jury,
to consider the issue of mental retardation only if an aggravating factor had been
found and if so to consider the issue of mental retardation first among the mitigating
factors.73 Seventh, they would have provided that a capital defendant found to be
mental retarded is be sentenced to imprisonment for a term of years or to life
imprisonment without the possibility of release.74 Eighth, they would have supplied
a statutory definition of mental retardation with three components: that the defendant
have an IQ of 70 or less, that he have had continuously since under 18 years of age,
and that it has continuously impaired mental functions including the ability to learn,
reason, and control impulses.75 The Justice Department endorsed similar legislative
proposals in the 109th Congress as a means of introducing consistency into federal
practice in the area.76
There may be objections, however. The definition of mental retardation might
be thought too narrow to embrace all those constitutionally protected.77 Resolution
72 Proposed 18 U.S.C. 3593(d)(“(d). . .The burden of establishing the existence of any
mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor
is established by a preponderance of the information. The defendant shall have the burden
of proving mental retardation by the preponderance of the information”).
73 Proposed 18 U.S.C. 3593(e)(“(e) Return of special findings.– . . . In any case in which
the defendant has raised the issue of mental retardation as required under subsection (b),
the jury, or if there is no jury, the court, shall determine the issue of mental retardation only
if any aggravating factor set forth in section 3592 is found to exist. Such determination
shall occur prior to the consideration of any mitigating factor. . .”).
74 Proposed 18 U.S.C. 3593(e)(“(e) Return of special findings.– . . . If no aggravating
factor set forth in section 3592 is found to exist, the court shall impose a sentence other than
death authorized by law. If the jury, or if there is no jury, the court, determines that the
defendant is mentally retarded, the court shall sentence the defendant to life imprisonment
without the possibility of release, or some other lesser sentence authorized by law.
75 Proposed 18 U.S.C. 3593(b)(4)(“(b)(4) For purposes of this section, a defendant is
mentally retarded if, since some point in time prior to age 18, he or she has continuously
had an intelligence quotient of 70 or lower and, as a result of that significant subaverage
mental functioning, has since that point in time continuously had a diminished capacity to
understand and process information, abstract from mistakes and learn from experience,
engage in logical reasoning, control impulses, and understand others’ reactions”).
76 Hearing at 12 (Griffey statement).
77 Hearing at 39-40 (“The procedures proposed. . . fall well short of Atkins constitutional
minimum , and would thus contravene the Eight Amendment.” The language of proposed
18 U.S.C. 3593(b)(4) “is not a definition at all, but rather a listing of many of the
characteristics of people with mental retardation that the Atkins Court regarded as justifying
a categorical bar against the infliction of death upon such defendants. In effect, this
provision would require the jury to redetermine anew in each case whether the Supreme
Court was correct in Atkins when it found that these characteristics of mental retardation
justified a categorical exemption. Note that the provision requires the jury to find all of the
listed characteristics (and that all these characteristics have manifested themselves
‘continuously’ since some point prior to age 18) in order to exempt a defendant on grounds
of mental retardation. Thus, a defendant with an IQ of 70 or below who established, for
example, that he had ‘diminished capacity to understand and process information, abstract
from mistakes and learn from experience, engage in logical reasoning, [and] control
of mental retardation issues, some would contend, should occur prior to trial as a
matter of fairness and judicial economy if nothing else.78 The proposal may also be
criticized for its failure to mirror the procedure governing the prosecution’s right to
an independent mental health examination in the case of insanity defense claims.79
Aggravating and Mitigating Factors
Furman v. Georgia, 408 U.S. 238 (1972), condemned state capital punishment
procedures, and by implication federal procedures, for failure to reserve the death
penalty to the most egregious capital cases. The procedures have been adjusted to
impulses,’ but who did not establish that he also had diminished capacity to ‘understand
others’ reactions’ would have failed to establish mental retardation, and could therefore be
executed. It can readily be seen that this approach fails to protect the entire class of persons
with mental retardation, and enactment would therefore place the federal government in
violation of the Eighth Amendment rule of Atkins. Indeed, the whole point of the Supreme
Court’s decision in Atkins was that each of the acts of moral culpability was too difficult to
determine reliable on a case-by-case basis, and the severity of the disability suffered by all
persons with mental retardation (whose intellectual functioning places them, by definition,
in the bottom 2-3 percent of the population) justifies a categorical ban”)(Bruck statement).
78 Id. at 41 (“The procedures to be employed are also undesirable. Rather than a pretrial
judicial determination (as occurs with competency to stand trial, for example, see 18 U.S.C.
4241),” the bills “would wastefully require a defendant with mental retardation to go
through the entire elaborate structure of a capital trial(with special jury selection procedures,
bifurcated jury sentencing, special counsel provisions, and so forth), only to establish at the
end of the process that he suffered all along from a life-long disability that rendered moot
the entire death-penalty aspect of the proceedings – and that could have been determined at
the start. Because mental retardation (unlike mental illness) is an essentially fixed condition
that must have existed prior to age 18 and that does not resolve or dissipate over time, it is
obviously more efficient and more logical to determine this issue before trial rather than at
the end of the proceedings. Almost all state statutes implementing mental retardation bars
in death penalty proceedings adopt this approach. . . Delaying the jury’s mental retardation
verdict until after the presentation of aggravation evidence is also unfair, because it ensures
that the jury will not address the relatively straightforward issues of whether the defendant
meets the clinical definition of mental retardation until it has been overwhelmed with
inflammatory information about the defendant’s prior record and bad character and with
emotionally powerful victim impact evidence. Just as it has long been thought unfair to
present sentencing evidence (including evidence of prior offenses and bad character) to a
jury before the defendant’s guilt or innocent has been determined, so too is it unfair to delay
a determination of whether the defendant has the immutable disability of mental retardation
until all of the evidence that might make the jury wish to impose the death penalty –
retardation or no retardation – has been presented”)(Bruck statement).
79 Id. at 42 (“[T]he proposed 18 U.S.C. 3593(b)(1) and (2) set up a partial new procedure
for pre-trial rebuttal mental heath evaluations in capital cases without taking into account
the detailed set of procedures that only recently went into effect with the December 2002
amendments to rule 12.2, Fed. R.Crim.P. Rule 12.2 already requires written pre-trial notice
of expert mental health mitigation testimony, and authorizes government rebuttal
evaluations following such notice. Adding on a statutory provision that is much less
detailed than Rule 12.2 is likely to cause confusion, while adding little or nothing to the
government’s valid entitlement to a fair opportunity to rebut the defendant’s mitigation”).
(Bruck statement). The text of Rule 12.2 is appended.
provide juries with aggravating and mitigating factors to guide the exercise of their
discretion and ensure that the death penalty is only imposed in the most serious cases.
Unequal codefendant treatment. Several bills suggested adjustments in
the designated aggravating and mitigating circumstances described in section 3592.
For instance, some proposals would have amended the mitigating circumstance that
now applies when “another defendant or defendants, equally culpable in the crime,
will not be punished by death,” H.R. 851 (Representative Gohmert), H.R. 191480
(Representative Carter). The amendment would have limited the factor to instances
where the prosecution had elected not to seek the death penalty for a codefendant.
In doing so it would have eliminated from coverage of instances where the
defendant’s codefendant is under 18 years of age, or mentally retarded, or extradited
with an agreement not to execute, or where an earlier jury had declined to sentence
a codefendant to death for the same offense.
The amendment might be thought to have largely symbolic impact. Section
3592(a)(8) allows a defendant to offer evidence of “any circumstance of the offense
that mitigate[s] against imposition of the death penalty.” Thus, it seems that any
circumstances removed from a specific statutory mitigating factor might be claimed
under the catch-all provisions of section 3592(a)(8). Some commentators have
suggested, however, the courts might construe removal as a limitation on the catch-
all provision as well.81
Substantial planning. Another proposal would have added an aggravating
factor to the espionage and treason category to cover offenses involving substantial
planning, H.R. 1914 (Representative Carter).82 Espionage and treason, by their
nature, would involve substantial planning in most instances. The proposal would
have permitted imposition of the death penalty even in the absence of any of the other
aggravating factors: prior espionage or treason conviction, grave risk to national
security, grave risk of death. Treason has been a capital crime almost since the
founding of the Republic,83 but it is not clear that the death penalty may be imposed
for any crime that does not involve the taking of a human life.84 The Constitution
80 Proposed 18 U.S.C. 3592(a)(4).
81 Hearing at 46 (“To be sure, a strong argument can be made that the hypothetical
defendant described here might still cite the disparate punishments in their cases as a non-
statutory mitigating factor. In all likelihood, however, some federal courts would construe
Congress’s enactment of this amendment as intended to preclude reliance on such mitigating
factors, while other courts would allow it”)(Bruck statement).
82 Proposed 18 U.S.C. 3592(b)(4)(“In determining whether a sentence of death is justified
for an offense described in section 3591(a)(1)[espionage and treason], the jury, or if there
is no jury, the court, shall consider each of the following aggravating factors for which
notice has been given and determine which, if any, exist: . . (4) Substantial planning – The
defendant committed the offense after substantial planning”).
83 1 Stat. 112 (1796).
84 See, Coker v. Georgia, 433 U.S. 584, 598 (1977)(“We have the abiding conviction that
the death penalty . . . is an excessive penalty for the rapist who, as such, does not take
human life”)(holding that the death penalty may not be imposed for the rape of an adult
woman even when committed by a defendant previously sentenced to three consecutive life
may limit the circumstances under which the death penalty may be imposed upon a
first time offender, convicted of espionage in a case where there is neither a grave
risk to national security nor a grave risk of death.
Murder plus felonies. Most federal capital punishment statutes do not
proscribe murder as such. They outlaw murder under particular circumstances,
circumstances that themselves might be considered aggravating, such as the murder
of a Member of Congress or a murder committed in conjunction with the rape of the
victim. Section 3592(c)(1) recognizes as an aggravating factor that murder was
during the course of one of a list of designated federal crimes.
Several bills would have placed other offenses on the list. H.R. 851
(Representative Gohmert) would have added receipt of military training from a
foreign terrorist organization (18 U.S.C. 2332D) to section 3592(c)(1).85 H.R. 851
and other bills would have inserted additional offenses including
- 18 U.S.C. 241 (conspiracy against civil rights),
- 18 U.S.C. 245 (federal protected rights),
- 18 U.S.C. 247 (interference with religious exercise),
- 18 U.S.C. 37 (violence at international airports),
- 18 U.S.C. 1512 (witness tampering), and
- 18 U.S.C. 1513 (retaliating against a witness), H.R. 851 (Representative86
Gohmert), H.R. 3156 (Representative Lamar Smith), S. 1860 (S. Cronyn).
The rationale for expansion appears to be that (1) capital punishment should be
reserved for the “worst of the worst;” (2) murders committed in the course of the
most serious federal crimes fit that description; and (3) one or more such most87
serious federal crimes are not now listed in section 3592(c)(1). The rationale of
opponents seems to be two-fold. First, as with mitigating circumstances, specific
designation is less significant when the catch-all provision would allow presentation
terms for an earlier murder and two earlier rapes).
85 Proposed 18 U.S.C. 3592(c)(1)(“In determining whether a sentence of death is justified
for an offense described in section 3591(a)(2)[homicide], the jury, or if there is no jury, the
court, shall consider each of the following aggravating factors for which notice has been
given and determine which, if any, exist: (1) Death during commission of another crime.–
The death, or injury resulting in death, occurred during the commission or attempted
commission of, or during the immediate flight from the commission of, an offense under
section . . .2339D (terrorist offenses resulting in death) . . . ”).
86 Proposed 18 U.S.C. 3592(c)(1). H.R. 1914 (Representative Carter) inserts section 2339E
offenses into section 3592(c)(1). There is no section under 2339E in existing law and H.R.
1914 does not create one. S. 1860 (Senator Cornyn) and H.R. 3156 (Representative Lamar
Smith) do create a section 2339E (terrorist offenses resulting in death), but neither bill adds
the new section to section 3592(c)(1).
87 Hearing at 16-7 (“The death penalty is and should be reserved for appropriate
circumstances and the ‘worst of the worst’ offenders. Examples of appropriate
circumstances include those in which individuals put multiple lives at risk or threaten the
integrity of our judicial system. Currently, however, these circumstances are not always
death-penalty-eligible”)(prepared statement of Margaret P. Griffey, Chief, Capital Case
Unit, United States Department of Justice)(Griffey statement).
to the jury in any event. In the case of aggravating circumstances, however, expressly
adding new crimes to the “murder plus” factor status is significant because the
existence of a specifically designated aggravating factor is a sine qua non for
imposition of the penalty; the mere presence of a catch-all aggravating factor is
insufficient. Second, the list of death-qualifying, specifically designated aggravating
factors is now so close to all-encompassing that some special justification may be in
order before the list is expanded.88
Obstruction of justice. The creation of a new obstruction of justice
aggravating factor was a common proposal, H.R. 851 (Representative Gohmert);
H.R. 1914 (Representative Carter), H.R. 3156 (Representative Lamar Smith), S. 1860
(Senator Cornyn).89 The proposal rests on the premise that killing witnesses and
other participants in the judicial process “strikes at the heart of the system of justice
itself.”90 Critics suggest that its breadth threatens to push the federal system to a
point where it has made all murders capital, where the exceptions to the “narrowing”
use of aggravating factors have eliminated any narrowing impact.91
88 Hearing at 33-34 (“The jury can already consider all relevant sentencing factors as non-
statutory aggravation. . . Rather, the point of creating a new statutory aggravating factor is
to authorize the jury to impose the death penalty on that basis alone, when no other statutory
aggravating factor is present. Since the FDPA’s existing list of statutory aggravating factors
already includes some 35 separate bases for death eligibility, some of them extremely broad
(such as that the murder was committed after ‘substantial planning and premeditation’), the
only practical effect of adding still more factors is to make the death penalty available in that
small category of cases where the murder was not otherwise aggravated. . . . Once the effect
of such new death-eligibility factors is properly understood, one might expect some actual
showing of a need to further expand the list of death-eligible federal murders before adding
more death-eligibility factors to this already long list”)(emphasis in the original)(Bruck
statement).
89 Proposed 18 U.S.C. 3592(c)(17)(“In determining whether a sentence of death is justified
for an offense described in section 3591(a)(2)[homicide], the jury, or if there is no jury, the
court, shall consider each of the following aggravating factors for which notice has been
given and determine which, if any, exist: . . . (17) Obstruction of Justice – The defendant
engaged in any conduct resulting in the death of another person in order to obstruct the
investigation or prosecution of any offense”).
90 Hearing at 22 (prepared statement of Robert Steinbuch, Professor of Law, University of
Arkansas); 19 (“The Department further supports the addition of new statutory aggravator
related to obstruction of justice. Protecting the integrity of te justice system is a paramount
goal for the Department”)(Griffiey statement).
91 Hearing at 36-7 (“Moreover, even if language were added to make clear that the proposed
‘obstruction of justice’ factor requires some nexus to the capital homicide offense at issue,
the new factor would still be susceptible of very broad application, because it could be
construed to apply to any murder committed to avoid arrest. If so construed, such a
relatively uncontroversial-seeming expansion of the federal death penalty could eliminate
almost every remaining murder under federal jurisdiction that is not currently subject to the
death penalty. That is, this provision could remove the last bit of legislative ‘narrowing’
from the FDPA, leaving the decision to inflict or withhold death to the unfettered discretion
of the jury in every case. Eventually the Supreme Court may take up the question of
whether a given capital punishment statute has become so all-inclusive that it fails the basic
requirement of Furman and Gregg that the sentencer’s discretion be legislatively narrowed
and guided”)(Bruck statement).
Previous firearm conviction. Section 3592(c)(2) now recognizes as a
statutory aggravating factor the fact that:
For any offense, other than an offense for which a sentence of death is sought on
the basis of section 924(c), the defendant has previously been convicted of a
Federal or State offense punishable by a term of imprisonment of more than 1
year, involving the use or attempted or threatened use of a firearm (as defined in
section 921) against another person. [Emphasis added.]
Section 924(c) provides additional penalties when a defendant uses or possesses
a firearm during and in relation to the commission of a federal crime of violence or
drug trafficking. Violation is a capital offense when in the course of the crime the92
firearm is used to commit a murder. The italicized portion of section 3593(c)(2)
is open to interpretation,93 and several proposals would have dropped the language.
H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), S.
1860 (Senator Cornyn). One of the bills, H.R. 851 (Representative Gohmert), would
have amended section 3592(c)(2) further to make it clear that the new provision did
not cover the conviction that had resulted in the capital sentencing hearing at issue,94
but only prior adjudications resulting in firearms conviction.
One critic has argued that in view of the breadth of section 924(c) the
amendment would make an aggravating factor out of the possession of a firearm95
during any federal crime of violence or drug trafficking that ended in murder.
92 18 U.S.C. 924(j).
93 Hearing at 18 (“As currently worded, the factor is susceptible to two interpretations,
which could undermine the clear and consistent application of the factor. Under one
interpretation, a prior conviction for an offense involving a firearm could constitute an
aggravating factor for all capital offenses except those involving firearms, an illogical
interpretation considering that a defendant’s prior firearm conviction may be relevant when
the same defendant’s later use of a firearm has resulted in death. The other interpretation
would only prohibit basing the aggravating factor on the immediately-prior section 924(j)
conviction for which the defendant faces the death penalty”). This second interpretation
seems to be the more faithful reading of the statute. Nevertheless. a third interpretation
possible: An earlier firearms conviction under any law other than section 924(c) may be
considered as an aggravating factor, but a section 924(c) conviction may not be used as an
aggravating factor regardless whether the conviction is the occasion of the current
sentencing proceeding or occurred sometime previously.
94 Proposed 18 U.S.C. 3592(c)(2)(“For any offense, other than an offense for which a
sentence of death is sought on the basis of section 924(c), The defendant has previously in
a prior adjudication been convicted of a Federal or State offense punishable by a term of
imprisonment of more than 1 year, involving the use or attempted or threatened use of a
firearm (as defined in section 921) against another person”).
95 Hearing at 35-6 (“The reason Congress enacted the 924(c) exclusion in the firearms
aggravator, 18 U.S.C. 3592(c)(2), was to avoid making every firearm killing automatically
death-eligible. This would otherwise have occurred because the firearms violation that
serves as the predicate for the 924(j) conviction would do double-duty as a ‘prior
conviction’ of a ‘prior’ qualifying firearms offense. By removing this exemption now,
Congress would seemingly be making every federal firearms killing death-eligible, whether
or not it would be otherwise warranted. In other words, there would be no requirement that
the defendant have any genuinely prior record, and without requiring evidence of any other
Pecuniary gain. Section 3592(c)(8) is what might be taken for a murder-for-
hire aggravating factor: “The defendant committed the offense as consideration for
the receipt, or in expectation of the receipt of anything of pecuniary value.” A casual
reading might suggest that the factor covers murder for hire when the murder is paid
either before or after the murder. Instead, the courts have concluded that the phrase
“as consideration for” covers the for-hire murders, and the phrase “in expectation of96
the receipt” covers murders from which there is a more general anticipated gain.
Yet the factor only applies when the murder was motivated by monetary gain. It is97
not enough that the gain was incidental to or a consequence of the murder.
The Justice Department has suggested that as now worded the factor is
susceptible to uneven application since it does not include instances where the98
murder is committed to preserve a defendant’s ill-gotten treasure. There were
aggravating factor (such as substantial planning and premeditation, risk to additional
persons, multiple victims, cruelty or torture, etc. . .The enactment of 18 U.S.C. 924(j) in
1994 represented a potentially enormous expansion in federal jurisdiction over homicide
offenses, which from the founding of the nation have been primarily a matter for state law
enforcement. The §924(c) exclusion at least represented an effort to keep this huge change
under some sort of commonsense check by ensuring that every 924(j) offense would not
automatically become punishable by death in the unfettered discretion of the jury.
Removing this restraint is unwise, unnecessary (because any truly aggravated 924(j) killing
is already death-eligible under existing law), and open to constitutional challenge as
impermissibly all-inclusive under the two seminal Supreme Court cases governing capital
punishment law, Furman v. Georgia and Gregg v. Georgia”)(Bruck statement).
96 Cf., United States v. Walker, 901 F.Supp. 837, 848-49 (N.D.N.Y. 1995)(interpreting
comparable language then found in the drug capital punishment provisions of 21 U.S.C.
848)(Section “848(n)(7) [has] two separate prongs: the first ‘as consideration for’ language
contemplates only murder-for-hire, but the ‘in expectation of’ language identifies a separate
ground”).
97 United States v. Barnette, 390 F.3d 775, 805-807 (4th Cir. 2004), vac’d and remanded on
other grounds, 546 U.S. 803 (2005)(“Both the Fifth Circuit and Tenth Circuit have limited
the application of the pecuniary gain aggravating factor ‘to situations where the murder
itself was committed as consideration for, or in the expectation of, anything of pecuniaryth
value.’ United States v. Bernard, 299 F.3d 467, 483 (5 Cir. 2002)(quoting United Statesth
v. Chanthadara, 230 F.3d 1237, 1263 (10 Cir. 2000)) . . . The defendants in Bernard
carjacked a vehicle and robbed the owners. . . drove the vehicle for several hours with the
couple in the truck, and [then] murdered the couple. . . .[T]he Fifth Circuit concluded that
the motivation for the murders was not pecuniary gain but was instead to prevent the couple
from reporting the crime to the police. . . Chanthadara argued that §3592(c)(8) was
inapplicable because all of the valuable property in the restaurant had been [stolen] by the
defendant and his accomplices prior to the killing. The Tenth Circuit agreed. . .Unlike
Bernard, the evidence in the instant case was sufficient for the jury to conclude that Barnette
killed Allen in the expectation of the receipt of something of pecuniary value, namely
Allen’s vehicle”); United States v. Roman, 371 F.Supp.2d 36, 46 (D.P.R. 2005)(“Under
these facts, a finding of pecuniary gain would not involve an extension of existing law. A
jury could properly infer that the murder was committed for the express reason to effect the
robbery, rather than being incident to, or as an afterthought to the robbery”).
98 Hearing at 18-9 (“As now interpreted by the courts, the pecuniary-gain aggravating factor
applies when the murder, as viewed by the defendant, is necessary to initially secure the
security gain, but does not apply when committed to maintain possession of a stolen gain.
proposed amendments that would have addressed the issue by altering the section to
read: The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, or in order to retain illegal possession of anything of
pecuniary value, H.R. 851 (Representative Gohmert), H.R. 3156 (Representative
Lamar Smith), S. 1860 (Senator Cornyn).
The amendment would have like brought most murders committed incidental
to a robbery within the factor’s purview. The objections voiced over other
aggravating factor amendments may be heard again: “Run of the mill” murders are
being made capital. The death penalty is no longer reserved for the worst of the
worst murderers. This is the situation the Court found unacceptable in Furman. Or
so the argument may run.
Murder of a law enforcement officer. H.R. 3153 (Representative Gerlach)
would have made an aggravating factor of the fact that the murder victim was a law
enforcement officer.99 Murder of a federal law enforcement officer during or on100
account of the performance of his or her duties is already an aggravating factor.
The amendment would have expanded the factor to include state law enforcement
officers, federal law enforcement officer murdered other than during or on account
of the performance of their official duties, and attempts to kill either state or federal
law enforcement officers.
Sympathy, prejudice and other arbitrary factors. In California v.
Brown, the Supreme Court upheld a state court instruction which informed a capital
jury that “they must not be swayed by mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion or public feeling.”101 H.R. 851 (Representative Gohmert)
Thus, for example, courts have held the factor to be applicable when a carjacking victim is
killed at a dark intersection before the vehicle is taken but not applicable if the carjacking
occurs in a public setting and the victim is taken a few miles away before he is killed”)
(Griffey statement).
99 Proposed 18 U.S.C. 3592(c)(17)(“In determining whether a sentence of death is justified
for an offense described in section 3591(a)(2)[homicide], the jury, or if there is no jury, the
court, shall consider each of the following aggravating factors for which notice has been
given and determine which, if any, exist: . . . (17) Killing of law enforcement officer – The
defendant killed or attempted to kill a person who is authorized by law to engage in or
supervise the prevention, detention, investigation, or prosecution of any criminal violation
of law; or to arrest or prosecute an individual for any such violation”).
100 18 U.S.C. 3592(c)(14)(D)(“The defendant committed the offense against . ..(D) a Federal
public servant who is a judge, a law enforcement officer, or an employee of a United States
penal or correctional institution – (i) while he or she is engaged in the performance of his
or her official duties; (ii) because of the performance of his or her official duties; or (iii)
because of his or her status as a public servant. For purposes of this subparagraph, a "law
enforcement officer" is a public servant authorized by law or by a Government agency or
Congress to conduct or engage in the prevention, investigation, or prosecution or
adjudication of an offense, and includes those engaged in corrections, parole, or probation
functions”).
101 479 U.S. 538, 539-43 (1987).
would have introduced a similar directive into the federal process in capital cases.102
H.R. 3156 (Representative Lamar Smith) and S. 1860 (Senator Cornyn) would have
used the same language but dropped references to “sentiment” and “sympathy,”103
perhaps in response to criticism of an earlier version of the proposal.104
Elimination of the term-of-years option. Many federal capital
punishment statutes offer but two sentencing alternatives, death or life
imprisonment.105 Several others, however, offer a third option: imprisonment for any106
term of years. In recognition of this fact, existing law states that if no aggravating
factors are found to exist “the court shall impose a sentence other than death107
authorized by law.” And if the trier of fact finds that the death penalty should not
be imposed in spite of the presence of one or more aggravating factors, existing law
calls for “life imprisonment without possibility of release or some other lesser
sentence.”108 Several proposals, H.R. 3156 (Representative Lamar Smith), S. 1860
(Senator Cornyn), and H.R. 851 (Representative Gohmert) among them, would have
102 Proposed 18 U.S.C. 3593(f)(“(f) . . . In assessing the appropriateness of a sentence of
death, the jury, or if there is no jury, the court must base the decision on the facts of the
offense and the aggravating and mitigating factors and avoid any influence of sympathy
sentiment, passion, prejudice, or other arbitrary factor when imposing sentence. . . ”).
103 Proposed 18 U.S.C. 3593(e)(“. . . . In assessing the appropriateness of a sentence of
death, the jury, or if there is no jury, the court must base the decision on the facts of the
offense and the aggravating and mitigating factors and avoid any influence of passion,
prejudice, or other arbitrary factor when imposing sentence. . . .”).
104 Hearing at 43 (“The evident purpose of this provision would be to allow the government
to seek a jury instruction using this verbiage. However, instructing a capital sentencing jury
to avoid ‘any influence’ of sympathy when choosing between life and death runs a grave risk
of violating the constitutional requirement of Lockett v. Ohio, 438 U.S. 586 (1978) and
Eddings v. Oklahoma, 455 U.S. 104 (1982), that the sentencer consider all relevant
mitigating evidence before imposing death as [a] punishment. I realize that in California
v. Brown, 479 U.S. 538 (1987), the Supreme Court narrowly upheld a rather different
instruction not to be swayed by ‘mere sentiment, conjecture, sympathy, or sympathy. . .’
However, the language proposed here is much more sweeping. It is simply impossible to
reconcile a prohibition of ‘any influence of sympathy’ with the constitutional directive to
consider the kinds of mitigating evidence – including horrific childhood abuse, or severe
mental and physical disabilities – which tend to elicit sympathy by their very nature. There
is no reason to push the constitutional envelope in order to help the government persuade
jurors to stifle their own sympathetic responses to those ‘compassionate or mitigating factors
stemming from the diverse frailties of humankind’ which must be considered ‘as a
constitutionally indispensable part of the process of inflicting the penalty of death.’
Woodson v. North Carolina, 428 U.S. 280, 304 (1976)(opinion of Stewart, Powell, and
Stevens, JJ.). This amendment is unnecessary, unwise, and unconstitutional”)(Bruck
statement).
105 E.g., 18 U.S.C. 1111(b)(murder in the special maritime and territorial jurisdiction of the
United States).
106 E.g., 18 U.S.C. 844(h)(use of fire or explosives in the commission of a federal offense);
924(j)(use of a firearm during and in relation to a crime of violence or drug trafficking
crime).
107 18 U.S.C. 3592(d).
108 18 U.S.C. 3592(e).
eliminated the possibility of a sentence for a term of years, if one of the aggravating
factors were found.109
Capital Juries
A number of proposals in the 110th Congress address problems associated with
selecting and maintaining a panel of qualified jurors in capital cases. Existing law
states the jury at the sentencing phase of a capital case “shall consist of 12 members,
unless, at any time before the conclusion of the hearing, the parties stipulate with the
approval of the court, that it shall consist of a lesser number.”110 H.R.851
(Representative Gohmert) and H.R. 1914 (Representative Carter) would have
amended the provision to permit the court to approve a lesser number for good cause,
without requiring the approval of the defendant or the prosecutor.111 Imposition of
the death penalty upon the recommendation of a jury of less than twelve members
over the objection of the defendant is likely to draw criticism.112 Perhaps to ensure
that recourse to juries of less than twelve would only be necessary in extreme cases,
the two bills would have increased the number of permissible alternate jurors from
six to nine and afforded each side four addition peremptory challenges in the cases
where more than six alternates are impaneled.113 H.R. 851 (Gohmert) also would
have amended section 3592 to discourage the dismissal of alternate jurors in capital
cases until sentencing has been completed.114 Other proposals, notably H.R. 3156
109 Proposed 18 U.S.C. 3592(f), 3594.
110 18 U.S.C. 3593(b).
111 Proposed 18 U.S.C. 3593(c).
112 Hearing at 47 (“Fed.R.Crim.P. 23(b) currently authorizes an 11-member jury to return
a verdict where one juror is dismissed for good cause, even without the defendant’s consent
or stipulation. This provision presumably already applies to capital as well as non-capital
cases.” The proposed amendment “would apply this to re-sentencing juries in capital cases,
but in so doing would remove the 11-juror minimum , thus allowing for even smaller juries
– of virtually any size – so long as the judge finds good cause for dismissing two or more
jurors. Even more significantly, this provision clearly authorizes judges to empanel re-
sentencing juries of less than 12 members – with no apparent minimum number – so long
as undefined ‘good cause’ is found to exist. I am not aware of any justification for so
radical a potential departure from the centuries-old practice of requiring 12-member juries
in capital cases, and do not think that Congress should enact it without a very powerful
justification being shown”)(Bruck statement).
113 Proposed F.R.Crim.P. 24(c)(1), (4).
114 Proposed 18 U.S.C. 3593(c)(“(c) ... The court shall not dismiss alternate jurors
impaneled during the guilt phase unless for good cause as to individual alternates or upon
a finding, under this subsection, that the sentencing hearing will be heard by the court
alone. The court shall retain such alternate jurors to hear the sentencing trial until the
completion of the hearing. If at any time, whether before or after the final submission of the
sentencing case to the jury, a sitting juror dies or becomes ill, or upon other good cause
shown to the court is found to be unable to perform his or her duty in a timely manner, or
if a juror requests a discharge and good cause appears therefor, the court shall order the
juror to be discharged and draw the name of an alternate, who shall then take a place in the
jury box, and be subject to the same rules and regulations as though the alternate juror had
been selected as one of the original jurors. If deliberations have begun when the
(Representative Lamar Smith) and S. 1860 (Senator Cornyn), would have left the
number of jurors and alternates as is and merely directed the court to retain alternates
until sentencing has been completed.115
Existing law permits a capital jury to unanimously recommend a sentence of
death or life imprisonment without the possibility of release;116 if they do not, the
court is to sentence the defendant to any lesser sentence authorized by law, i.e.,
imprisonment for life or for a term of years.117 H.R. 1914 (Representative Carter)
would have provided that if the jury cannot agree on a capital recommendation, a
new sentencing hearing must be impaneled and new sentencing hearing conducted.118
Site of Execution
Existing law provides that the states are to execute federal death sentences.119
H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), and
S. 1860 (Senator Cornyn) would have authorized execution in federal facilities as
well, pursuant to regulations promulgated by the Attorney General.120 The change
reflects the availability of federal facilities.121 They would also have added a
confidentiality clause under which the identity of executors and witnesses at the
execution could not have been publicly disclosed without their consent.122
substitution is made, the court shall instruct the newly constituted jury to recommence
deliberations as if none had previously taken place. The panel, in all other respects, shall
be considered unaltered by the substitution of a duly seated alternate”).
115 Proposed 18 U.S.C. 3593(b)(“The court shall retain alternate jurors until the completion
of the sentencing hearing, unless the sentencing is before the court alone under paragraph
(3). The replacement of jurors with alternate jurors during the sentencing hearing will be
conducted in accordance with Rule 24 of the Rules of Criminal Procedure”).
116 18 U.S.C. 3593(e).
117 18 U.S.C. 3594.
118 Proposed 18 U.S.C. 3593(b)((2)(E).
119 18 U.S.C. 3597, 3596.
120 Proposed 18 U.S.C. 3597, 3596.
121 Hearing at 16 (“Prior to the establishment of the federal death row in Terre Haute, and
the building of an execution facility there, it was necessary for federal death-sentenced
inmates to be housed in state facilities and, it was anticipated executed under state
procedures. Existing statutes reflect this practice and expectation. As it turns out, the
federal facility was in place prior to the first federal execution. There is therefore no reason
to continue to provide courts with the option of designating a state facility or method of
execution ass applicable in a particular case, particularly as this state of affairs can create
uncertainty”)(Griffey statement)
122 Proposed 18 U.S.C. 3597(c).
New Federal Capital Offenses
S. 607 (Senator Vitter) would have outlawed interference with federal disaster
relief efforts; when death resulted from a violation of the proscription, the defendant
might have been sentenced to death or life imprisonment.123
H.R. 3806 (Representative Forbes) would have made sabotage committed
against a nuclear facility a capital offense if a death resulted from the commission of
the offense.124
It is a federal capital offense under existing law to murder a member of the
United States armed forces during or on account of the performance of their duties,
18 U.S.C. 1114. H.R. 3884 (Representative Murphy) would have made it a federal
offense to murder a member of the United States armed force regardless of whether
the offense were committed during or on account of the performance of the victim’s
duties, proposed 18 U.S.C. 1123.
The bills drafted to counter gang violence – e.g., H.R. 3150 (Representative
Keller), H.R. 880 (Representative Forbes) – frequently included two new federal
death penalty offenses. One would have proscribed the use of interstate facilities
with the intent to commit multiple murders and would have been a capital offense125
where death resulted. The second, modeled after the provision that condemned the
123 “(a) Whoever, during a presidentially-declared major disaster or emergency – (1)
forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any officer or
employee of the United States or of any agency in any branch of the United States
Government (including any member of the uniformed services while such officer or
employee is engaged in or on account of the performance of official duties relating to, or in
support of recovery from, the presidentially-declared disaster or emergency, or any person
assisting such an officer or employee in the performance of such duties, or on account of
that assistance; or (2) forcibly assaults, resists, opposes, impedes, intimidates, or interferes
with any person providing services in support of disaster relief efforts and working in
coordination with a federal coordinating officer appointed pursuant to section 302, Public
Law 98-288 (42 U.S.C. 5143, shall except in subsection(b) of this section, be fined under
this title or imprisoned not more than 2 years, or both.
“(b) Whoever, in the commission of and in relation to any act described in
subsection(a) of this section, carries, possesses or uses a deadly or dangerous weapon or
inflicts serious bodily injury, shall be fined under this title or imprisoned not more than 15
years or both, or, if the death of any person results, shall be punished by death or life
imprisonment,” proposed 18 U.S.C. 1370 (H.R. 3150; the wording of H.R. 880 is
comparable).
124 Proposed 18 U.S.C. 1366A(a)(“Whoever knowingly – (1) causes physical damage to a
nuclear facility or to nuclear fuel; (2) without authorization causes an interruption of normal
operation of a nuclear facility; or attempts or conspires to do so, shall be fined under this
title or imprisoned not more than 30 years or both, and if death results to any person, shall
[be] subject to the death penalty and the maximum term of imprisonment shall be life or any
term of years”).
125 “Any person who travels in or causes another (including the intended victim) to travel
in interstate or foreign commerce, or uses or causes another (including the intended victim)
to use the mail or any facility of interstate or foreign commerce, with intent that 2 or more
murders be committed in violation of the laws of any state or the United States, or who
use of a firearm during or in relation to a crime of violence or a drug offense, would
have outlawed crimes of violence committed during or in relation to a drug
trafficking offense and would have made the offense punishable by death if a death
results.126 The murder committed during and in relation to a drug trafficking offense
appeared as a capital offense in other bills as well (H.R. 1118 (Representative
Keller); H.R. 3156 (Representative Lamar Smith); S. 1860 (Senator Cornyn)); as
does the new capital multiple murder proposal (H.R. 3156 (Representative Lamar
Smith); S. 1860 (Senator Cornyn)). In addition, H.R. 3150 would have condemned
murder along with other violent crimes in furtherance or in aid of a criminal street
gang, an offense it would have made punishable by death.127
Existing law proscribes overseas murder and assault committed against
Americans by terrorists, 18 U.S.C. 2332. H.R. 2376 (Representative Franks), H.R.
3147 (Representative Wilson), H.R. 3156 (Representative Lamar Smith), S. 1320
(Senator Kyl), and S. 1860 (Senator Cornyn) would have proscribed overseas
kidnaping of Americans by terrorists and propose the death penalty as a sentencing
option when a death results.
Several of the immigration bills – e.g., H.R. 1645 (Representative Gutierrez),
S. 330 (Senator Isakson), S. 1348 (Senator Reid) – would have proscribed evasion
of border inspection and made the offenses punishable by death, imprisonment for
any term of years, or for life if death results from a violation, proposed 18 U.S.C.
Rather than amend existing non-capital federal terrorist offenses to make them
capital offenses when they result in a death, H.R. 855 (Representative Lungren), H.R.
3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) would have
created a new separate federal offense which outlaws the commission of, or attempt
or conspiracy to commit various federal terrorist offenses when a death results,
proposed 18 U.S.C. 2339E. Violations would have been punishable by death or
imprisonment for any term of years or for life.128 Its impact might have been less
conspires to do so . . . (3) if death results, may be fined not more than $250,000 under this
title, and shall be punished by death or imprisonment for any term of years or for life.”
proposed 18 U.S.C. 1123.
126 “(a) Any person who, during or in relation to any drug trafficking crime, murders . . . any
individual. . . shall be punished, in addition and consecutive to the punishment provided for
the drug trafficking crime – (1) in the case of murder, by death or imprisonment for any term
of years or for life, a fine under title 18, United States Code, or both. . . . (d) As used in this
section. . . (2) the term ‘drug trafficking crime’ has the meaning given that term in section
924(c)(2) of title 18, United States Code [i.e., any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. 951 et seq.) or the Maritime Drug Law Enforcement Act (46 U.S.C. 70501 et
seq.)],” proposed 21 U.S.C. 865. (H.R. 3150; the wording of H.R. 880 is comparable).
127 “Any person who, in furtherance or in aid of a criminal street gang, murders. . . any
individual . . . shall be punished, in addition and consecutive to the punishment provided for
any other violation of this chapter – (1) for murder, by death or imprisonment for any term
of years or for life, a fine under this title, or both,” proposed 18 U.S.C. 523.
128 Proposed 18 U.S.C. 2339E(a).
dramatic than might appear at first glance since many of its predicate offenses are
already capital crimes or would have been elevated to capital offenses elsewhere in
the bills. Nevertheless, as a consequence of section 2339E the following would have
become capital offenses when a death occurs during the course of their commission:
- 18 U.S.C. 81 (arson within special maritime and territorial jurisdiction),
- 18 U.S.C. 175 or 175b ( biological weapons),
- 18 U.S.C. 351 (congressional, cabinet, and Supreme Court murder or
kidnaping),
- 18 U.S.C. 831 (nuclear materials),
- 18 U.S.C. 842(m) or (n) (plastic explosives),
- 18 U.S.C. 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad),
- 18 U.S.C. 1030(a)(1), 1030(a)(5)(A)(i)(protection of computers),
- 18 U.S.C. 1361 (destruction of government property or contracts),
- 18 U.S.C. 1362 (destruction of communication lines, stations, or systems),
- 18 U.S.C. 1366(a) (destruction of an energy facility),
- 18 U.S.C. 2155 (destruction of national defense materials, premises, or
utilities),
- 18 U.S.C. 2156 (national defense material, premises, or utilities),
- 18 U.S.C. 2332d (financial transactions with terrorist supporting countries),
- 18 U.S.C. 2339 (harboring terrorists), 129
- 18 U.S.C. 2339A (providing material support to terrorists),
- 18 U.S.C. 2339B (providing material support to terrorist organizations),
- 18 U.S.C. 2339C (financing of terrorism),
- 18 U.S.C. 2339D (military-type training from a foreign terrorist organization),
- 18 U.S.C. 2340A (torture),
- 21 U.S.C. 960a (narco-terrorism),
- 42 U.S.C. 2122 (prohibitions governing atomic weapons),
- 42 U.S.C. 2284 (sabotage of nuclear facilities or fuel),
- 49 U.S.C. 46504 (second sentence)(assault on a flight crew with a dangerous
weapon),
- 49 U.S.C. 46505(b)(3) or (c) ( explosive or incendiary devices, or
endangerment of human life by means of weapons, on aircraft),
- 49 U.S.C. 60123(b) (destruction of interstate gas or hazardous liquid pipeline
facility).
On the other hand, some of predicate offenses do not outlaw attempts to violate
their proscriptions. In these cases, section 2339E would have established not only
a new federal capital offense but a new federal crime when death results from the
attempt:
- 18 U.S.C. 1203 (hostage taking),
- 18 U.S.C. 2339 (harboring terrorists),
- 18 U.S.C. 2339D (receipt of foreign terrorist military training).
129 In a later section of H.R. 855, the bill would have amended 18 U.S.C. 2339A to make
it punishable by imprisonment for not less than 30 years or for life, if death results from the
commission of the offense. A court might conclude that amended section 2339A was
intended to create an exception to the application of section 2339E; i.e., section 2339E
would apply to all federal crimes of terrorism other than 2339A.
Capital Punishment for Existing Non-Capital
Offenses
H.R. 855 (Representative Lungren), H.R. 3156 (Representative Lamar Smith),
H.R. 3147 (Representative Wilson), and S. 1860 (Senator Cornyn) would have
established the death penalty as a sentencing option when death results as a
consequence of a violation of: 18 U.S.C. 832 (participation in foreign programs
involving weapons of mass destruction); 18 U.S.C. 2332g (anti-aircraft missile
offenses); 42 U.S.C. 2272 (atomic weapons offenses); 18 U.S.C. 2332h (radiological
dispersal device offenses); and 18 U.S.C. 175c (variola virus (small pox) offenses).
The gang bills would have rewritten the federal criminal gang statute (18 U.S.C.
521) to permit imposition of capital punishment for a death-resulting violation of the
newly crafted provisions whose predicate offenses include various crimes of
violence, money laundering, drug offenses, credit card fraud, Travel Act violations,
and interstate transportation of stolen property, H.R. 880 (Representative Forbes),
H.R. 3150 (Representative Keller). H.R. 3156 (Representative Lamar Smith) and S.
The Travel Act, 18 U.S.C. 1952, among other things, outlaws interstate travel
to commit a crime of violence in furtherance of various drug, gambling, or extortion
offenses. H.R. 3156 (Representative Lamar Smith) and S. 1850 (Senator Cornyn)
would have permitted imposition of the death penalty when a violation results in
deat h. 130
Abolition of Capital Punishment
S. 447 (Senator Feingold)/H.R. 6875 (Representative Kucinich) would have
eliminated the death penalty as a sentencing option for federal and military capital
offenses. It would have prohibited imposition of the death penalty and provided that
prisoners under sentence of death at the time of enactment shall be sentenced to life
imprisonment without the possibility of release. It would have repealed the
procedures for implementation of the death penalty, 18 U.S.C. ch. 228. It would
have eliminated as well 18 U.S.C. 3235 which dictates that the trial of a capital
offense be conducted in the county in which it occurred. It would have amended the
statute of limitations of 18 U.S.C. 3281 to list specific previous capital offenses
which may be tried at any time. It would have mades comparable adjustments in the
Code of Military Justice.
Statute of Limitations
The general statute of limitations for federal crimes is 5 years, 18 U.S.C. 3282.
Federal crimes punishable by death may be prosecuted at any time, 18 U.S.C. 3281.
Federal crimes of terrorism as defined in 18 U.S.C. 2332b(g)(5)(B) that result in
death or involve a risk of death may also be prosecuted at any time, 18 U.S.C.
130 Proposed 18 U.S.C. 1952(d)(2).
by 18 U.S.C. 1201 or 18 U.S.C. chs. 109A (sexual abuse), 110 (sexual exploitation
of children), or 117(travel of illicit sexual purposes) may likewise be brought any
time, 18 U.S.C. 3299.
S. 447/H.R. 6875 would have replaced the language of section 3281 for crimes
carrying the death penalty with a list of federal crimes (now punishable by death)
which may be prosecuted at any time notwithstanding the bill’s elimination of the
death penalty.131 The list was not exhaustive. Some of the omissions were covered
by exceptions for crimes against children, sex offenses, or the federal crimes of
terrorism. Some were not. The crimes which now can be prosecuted at any time but
which S. 447/H.R. 6875 would appear to have made subject to the general 5-year
statute of limitations were violations of:
!7 U.S.C. 2146 (killing federal animal transportation inspectors)
!15 U.S.C. 1825(a)(2)(C) (killing those enforcing the Horse
Protection Act)
!18 U.S.C. 115(a)(1)(A) (murder of a family member of a United
States officer, employee or judge with intent to impede or retaliate
for performance of federal duties)
!18 U.S.C. 115(a)(1)(B) (murder of a former United States officer,
employee or judge or any member of their families in retaliation for
performance of federal duties)
!18 U.S.C. 229 (death resulting from chemical weapons)
!18 U.S.C.1119 (murder of a U.S. national by another outside the
U.S.)
!18 U.S.C.1120 (murder by a person who has previously escaped
from a federal prison)
!18 U.S.C.1201 (kidnaping where death of an adult results)
!18 U.S.C.1503 (murder to obstruct federal judicial proceedings)
!18 U.S.C. 1513 (retaliatory murder of a federal witness or informant)
!18 U.S.C. 3261(murder committed by members of the United States
armed forces or accompanying or employed by the United States
armed forces overseas)
!21 U.S.C.461(c) (murder of federal poultry inspectors during or
because of official duties)
!21 U.S.C.675 (murder of federal meat inspectors during or because
of official duties)
!21 U.S.C. 848(c), 18 U.S.C. 3592(b)(major drug kingpins and
attempted murder by drug kingpins to obstruct justice)
!21 U.S.C.1041(c) (murder of an egg inspector during or because of
official duties)
!42 U.S.C.2283 (murder of federal nuclear inspectors during or
because of official duties).
131 Proposed 18 U.S.C. 3281.
Appendix
Federal Rules of Criminal Procedure: Rule 12.2
(a) Notice of an Insanity Defense. A defendant who intends to assert a defense
of insanity at the time of the alleged offense must so notify an attorney for the
government in writing within the time provided for filing a pretrial motion, or at any
later time the court sets, and file a copy of the notice with the clerk. A defendant who
fails to do so cannot rely on an insanity defense. The court may, for good cause,
allow the defendant to file the notice late, grant additional trial-preparation time, or
make other appropriate orders.
(b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to
introduce expert evidence relating to a mental disease or defect or any other mental
condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of
punishment in a capital case, the defendant must--within the time provided for filing
a pretrial motion or at any later time the court sets--notify an attorney for the
government in writing of this intention and file a copy of the notice with the clerk.
The court may, for good cause, allow the defendant to file the notice late, grant the
parties additional trial-preparation time, or make other appropriate orders.
(c) Mental Examination.
(1) Authority to Order an Examination; Procedures.
(A) The court may order the defendant to submit to a competency examination
under 18 U.S.C. § 4241.
(B) If the defendant provides notice under Rule 12.2(a), the court must, upon the
government's motion, order the defendant to be examined under 18 U.S.C. § 4242.
If the defendant provides notice under Rule 12.2(b) the court may, upon the
government's motion, order the defendant to be examined under procedures ordered
by the court.
(2) Disclosing Results and Reports of Capital Sentencing Examination. The
results and reports of any examination conducted solely under Rule 12.2(c)(1) after
notice under Rule 12.2(b)(2) must be sealed and must not be disclosed to any
attorney for the government or the defendant unless the defendant is found guilty of
one or more capital crimes and the defendant confirms an intent to offer during
sentencing proceedings expert evidence on mental condition.
(3) Disclosing Results and Reports of the Defendant's Expert Examination.
After disclosure under Rule 12.2(c)(2) of the results and reports of the government's
examination, the defendant must disclose to the government the results and reports
of any examination on mental condition conducted by the defendant's expert about
which the defendant intends to introduce expert evidence.
(4) Inadmissibility of a Defendant's Statements. No statement made by a
defendant in the course of any examination conducted under this rule (whether
conducted with or without the defendant's consent), no testimony by the expert based
on the statement, and no other fruits of the statement may be admitted into evidence
against the defendant in any criminal proceeding except on an issue regarding mental
condition on which the defendant:
(A) has introduced evidence of incompetency or evidence requiring notice under
Rule 12.2(a) or (b)(1), or
(B) has introduced expert evidence in a capital sentencing proceeding requiring
notice under Rule 12.2(b)(2).
(d) Failure to Comply.
(1) Failure to Give Notice or to Submit to Examination. The court may exclude
any expert evidence from the defendant on the issue of the defendant's mental
disease, mental defect, or any other mental condition bearing on the defendant's guilt
or the issue of punishment in a capital case if the defendant fails to:
(A) give notice under Rule 12.2(b); or
(B) submit to an examination when ordered under Rule 12.2(c).
(2) Failure to Disclose. The court may exclude any expert evidence for which
the defendant has failed to comply with the disclosure requirement of Rule
(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which
notice was given under Rule 12.2(a) or (b), later withdrawn, is not, in any civil or
criminal proceeding, admissible against the person who gave notice of the intention.
Federal Crimes Punishable by Death
18 U.S.C. 33 (death resulting from destruction of motor vehicles or their facilities
used
in United States foreign commerce)
employee
or judge with intent to impede or retaliate for performance of federal duties)
18 U.S.C. 115(a)(1)(B) (murder of a former United States officer, employee or judge
or
any member of their families in retaliation for performance of federal duties)
18 U.S.C. 351 (killing a Member of Congress, cabinet officer, or Supreme Court
justice)
18 U.S.C.844(d) (death resulting from the unlawful transportation of explosives in
United
States foreign commerce)
18 U.S.C. 844(i) (death resulting from bombing property used in or used in an
activity which
affects United States foreign commerce)
18 U.S.C. 924(c) (death resulting from carrying or using a firearm during and in
relation
to a crime of violence or a drug trafficking offense)
18 U.S.C.930(c) (use of a firearm or dangerous weapon a firearm or other dangerous
weapon
in a federal facility)
18 U.S.C.1114 (murder of a federal employee, including a member of the United
States
military, or anyone assisting a federal employee or member of the United States
military during the performance of (or on account of) the performance of official
duties)
18 U.S.C.1120 (murder by a person who has previously escaped from a federal
prison)
18 U.S.C.1121(a) (murder of another who is assisting or because of the other's
assistance
in a federal criminal investigation or killing (because of official status) a state
law enforcement officer assisting in a federal criminal investigation)
18 U.S.C. 1751 (murder of the President, Vice President, or a senior White House
official)
18 U.S.C. 1992 (attacks on railroad and mass transit systems engaged in interstate or
foreign
commerce resulting in death)
18 U.S.C.2241, 2245 (aggravated sexual abuse within the special maritime and
territorial
jurisdiction of the United States where death results)
18 U.S.C.2242, 2245 (sexual abuse within the special maritime and territorial
jurisdiction
of the United States where death results)
18 U.S.C.2243, 2245 (sexual abuse of a minor or ward within the special maritime
and
territorial jurisdiction of the United States where death results)
18 U.S.C.2244,2245 (abusive sexual contact within the special maritime and
territorial
jurisdiction of the United States where death results)
18 U.S.C. 2283 (transportation of explosives, biological, chemical, radioactive or
nuclear
materials for terrorist purposes on the high seas or aboard a U.S. vessel or in
U.S. waters)
18 U.S.C. 2332f (death resulting from bombing of public places, government
facilities,
public transportation systems or infrastructure facilities)(effective when the
terrorist bombing treaty enters into force for the U.S.)
18 U.S.C. 3261(murder committed by members of the United States armed forces
or accompanying or employed by the United States armed forces overseas)
21 U.S.C.461(c) (murder of federal poultry inspectors during or because of official
duties)
21 U.S.C. 848(c), 18 U.S.C. 3592b)(major drug kingpins and attempted murder by
drug
kingpins to obstruct justice)