The Death Penalty: An Abridged Look at Capital Punishment Legislation in the 109th Congress
The Death Penalty: An Abridged Look at
th
Capital Punishment Legislation in the 109
Congress
Charles Doyle
Senior Specialist
American Law Division
Summary
The USA PATRIOT Improvement and Reauthorization Act (Reauthorization Act),
P.L. 109-177, 120 Stat. 192 (2006) contains a number of death penalty related
provisions. Some create new federal capital offenses making certain death-resulting
maritime offenses punishable by death. Some add the death penalty as a sentencing
option in the case of pre-existing federal crimes such those outlawing attacks on mass
transit. Some make procedural alterations such as those governing federal habeas
corpus provisions for state death row petitioners. Other proposals offered during the
109th Congress followed the same pattern: some new crimes; some new penalties for old
crimes; and some procedural adjustments. Other than the Adam Walsh Child Protection
and Safety Act, P.L. 109-248, 120 Stat. 587 (2006), none of the other proposals were
enacted, although one House or the other approved several. Among these, H.R. 1279
would have amended the venue provision for capital cases and made it a federal capital
offense to use the facilities of interstate commerce to commit multiple murders and
another to commit murder during and in relation to a drug trafficking offense. As would
have H.R. 4472. H.R. 1751 and H.R. 4472 would have made it a federal capital offense
to murder a federally funded public safety officer. H.R. 3132 would have created
special expedited habeas review of state child murder cases. And S. 2611 would have
made murder committed during the course of certain federal offenses a capital offense.
Of the capital proposals pending at adjournment, H.R. 4923 and S. 122 would have
abolished the death penalty as a federal sentencing alternative and H.R. 379 would have
imposed a moratorium barring the states from imposing or carrying out the death
penalty.
This is an abridged version of CRS Report RL33395, The Death Penalty: Capital
Punishment Legislation in the 109th Congress, by Charles Doyle, without the footnotes,
appendices, or most of the citations to authority found in the longer report.
Procedural Adjustments. The Reauthorization Act changes procedures
associated with federal capital cases including those relating to air piracy cases arising
before 1994 and habeas procedures for state capital petitioners.
Pre-1994 Capital Air Piracy Cases. In the early 1970s, the U.S. Supreme Court
held unconstitutional the imposition of capital punishment under the procedures then
employed by the federal government and most of the states. In 1974, Congress
established a revised procedure for imposition of the death penalty in certain air piracy
cases. In 1994, when Congress made the procedural adjustments necessary to revive the
death penalty as a sentencing option for other federal capital offenses, it replaced the air
piracy procedures with those of the new regime. At least one court, however, held that
the new procedures could not be applied retroactively to air piracy cases occurring after
the 1974 fix but before the 1994 legislation, in the absence of an explicit statutory
provision. The Reauthorization Act adds an explicit provision to the end of the 1994
legislation. H.R. 1763 and H.R. 3060 contain comparable provisions.
Habeas Corpus in State Capital Cases. Federal law provides expedited
habeas corpus procedures for state death row inmates in those states that qualify for
application of the procedures and have opted to take advantage of them. As of enactment
of the Reauthorization Act apparently, few if any states had sought and been found
qualified to opt in. Under the Reauthorization Act, states opt-in or have opted-in as of the
date, past or present, upon which the Attorney General determines they established or
have established qualifying assistance of counsel mechanism. The earlier provision
required that the mechanism include competency standards for appointed counsel. The
Reauthorization Act removed the requirement, but granted the Attorney General
regulatory authority sufficient to establish such standards. The act establishes a de novo
standard of review for the Attorney General’s determination before the D.C. Circuit. The
Streamlined Procedures Acts in the House and Senate, H.R. 3035 and S. 1088, would
make similar changes in the opt in procedure.
S. 956, H.R. 2388, and H.R. 3132 (House-passed legislation is noted in italics),
contain a common amendment governing federal habeas cases of an individual convicted
under state law of killing a child, proposed 28 U.S.C. 2254. Habeas under section 2254
would have been unavailable in such cases except for claims that both (1) relied on a new
constitutional interpretation made retroactively applicable by the Supreme Court or on
evidence that the petitioner could not reasonable have been previously discovered and (2)
were predicated upon facts in the face of which no reasonable judge or jury would have
found the petitioner guilty but for the constitutional error, proposed 28 U.S.C. 2254(j)(1),
(2). Under the bills, judicial consideration of claims that meet the dual criterion would
have been expedited.
Additional Procedural Proposals: Venue. Several anti-gang bills purport to
change the place where capital cases may be tried. S. 155, H.R. 970, H.R. 1279, and H.R.
4472 contain the same provision that would have rewritten 18 U.S.C. 3235. Section 3235
provides that where possible capital cases should be tried in the county in which the crime
occurred. The proposal would have repealed the “county trial” language of section 3235
and replaced it with language reminiscent of the multi-district terms of section 3237(a):
“(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
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. The proposal would have operated subject
to two constitutional provisions and two Supreme Court cases which construe them.
Mitigating and Aggravating Factors. The death penalty may be imposed in a
federal capital case only after consideration of the mitigating and aggravating factors
listed in 18 U.S.C. 3592 and only if at least one aggravating factor is found. Several bills
would have adjusted the factors. One of the aggravating factors in homicide cases
consists of the fact that the death resulted from the commission of a list of designated
felonies. The Adam Walsh Child Protection and Safety Act adds 18 U.S.C. 2245 to the
list, 18 U.S.C. 3591(c)(1). Among the proposals that failed to secure final passage, H.R.
proposed 18 U.S.C. 3591(c)(1). H.R. 3060 would have placed 18 U.S.C. 2339D (receipt
of military training from a foreign terrorist organization) on the list, and H.R. 5040 would
have done the same and also added 18 U.S.C. 241 (civil rights conspiracy), 245
(deprivation of federally protected activities), 247 (interference with religious exercise),
proposed 18 U.S.C. 3592(c)(1). Both H.R. 3060 and H.R. 5040 would have made
obstruction of justice an aggravating factor in homicide cases, proposed 18 U.S.C.
Other Procedural Proposals. H.R. 3060 would have allowed the court upon
a finding of good cause or agreement of the parties to proceed with a capital sentencing
jury of fewer than 12 members, proposed 18 U.S.C. 3593(b). Existing law requires
agreement of the parties. The bill also amends Rule 24(c) of the Federal Rules of Criminal
Procedure to allow for the selection of a maximum of 9 alternate jurors and allows each
side 4 peremptory alternate juror challenges when either 7, 8, or 9 alternates are to be
selected, proposed F.R.Crim.P. 24(c). The present Rule calls for a maximum of 6
alternates and affords the parties 3 alternate juror peremptory challenges. These and other
similar proposals passed the House initially as part of H.R. 3199, but were dropped in
conference and were not part of the Reauthorization Act as passed.
H.R. 5040 would have struck the provision which outlaws the execution of the
mentally retarded, proposed 18 U.S.C. 3596(c). The omission, although perhaps
surprising to some, appeared inconsequential since execution of the mentally retarded is
constitutionally proscribed. The bill also would have required notice to the government
and would have permitted the government to request an independent mental health
examination when a defendant intends to enter mental retardation as a mitigating factor
for capital sentencing purposes, proposed 18 U.S.C. 3593(b). The existing statute
mentions no such requirements. Presumably recourse to the proposed procedure would
have been more infrequent in those cases where the district court conducted a pre-trial
evidentiary hearing to determine whether the mental retardation of the accused precluded
imposition of the death penalty following any conviction. Present law permits a capital
jury to unanimously recommend a sentence of death or of imprisonment without
possibility of release; if they do not, the court is to sentence the defendant to any lesser
sentence authorized by law, i.e., imprisonment for life or a term of years. H.R. 5040
would have provided that if the jury cannot agree on a capital recommendation, a new
sentencing jury would have been empaneled and the issue retried, proposed 18 U.S.C.
sentences will be carried out in state facilities. H.R. 5040 would have granted the
Attorney General regulatory implementing authority without exclusive reference to state
facilities, proposed 18 U.S.C. 3596, 3597. The bill also would have rewritten 18 U.S.C.
3005 which assures defendants two assigned counsel in capital cases. The proposal would
have made it clear that the statute only applied when the government sought the death
penalty and not in capital cases where it had elected not to do so, proposed 18 U.S.C.
3005(a). The federal appellate courts are divided on the question over whether section
3005 now entitles a defendant to the assistance of two attorneys in all capital cases or only
in those in which the government actively seeks the death penalty. The proposal also
would have explicitly authorized the government to strike for cause potential jurors in
capital cases whose opposition to the death penalty “would prevent or substantially impair
the performance” of their duties as jurors, proposed 18 U.S.C. 3005(b). The proposal
borrowed language from Supreme Court cases indicating that a potential juror may be
struck if his views on capital punishment “would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.”
New Federal Capital Offenses. Title III of the Reauthorization Act, designated
the Reducing Crime and Terrorism at America’s Seaports Act, creates three new federal
capital offenses: (1) 18 U.S.C. 2282A (devices or dangerous substances in waters of the
United States likely to destroy or damage ships or to interfere with maritime; causing a
death); (2) 18 U.S.C. 2283 (transportation of explosive, biological, chemical, or
radioactive or nuclear materials; causing a death); and 18 U.S.C. 2291 (destruction of
vessel or maritime facility; intentionally causing a death). Two other port security bills
would have suggested similar new death penalty offenses, H.R. 2651 and S. 378 (as
reported) (proposed 18 U.S.C. 2282A, 2283, and 2291), and a third would have offered
three slightly less comparable offenses, H.R. 173 (proposed 18 U.S.C. 1372 (destruction
of vessel or maritime facility; if death results), 2280A (devices or substances in waters of
the United States likely to destroy or damage ships; if death results), and 2282 (malicious
dumping; if death results)).
The bills drafted to counter gang violence – H.R. 4472, H.R. 1279, H.R. 970, and
S. 155 – frequently include two new federal death penalty offenses. One of the proposed
offenses would have proscribed the use of interstate facilities with the intent to commit
multiple murders and would have been a capital offense where death results. The other,
modeled after the provision that condemns the 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 makes the offense punishable by
death if a death results. A few other bills would have made it a federal capital offense to
kill a police officer under various circumstances. For example, H.R. 2363 would have
outlawed killing a peace officer and fleeing the country, proposed 18 U.S.C. 1121(c).
H.R. 1751 and H.R. 2194 would have prohibited murdering federally funded state or local
law enforcement officers, proposed 18 U.S.C. 1123.
Other proposed new federal capital offenses would have included (1) agroterrorism
when death results, proposed 18 U.S.C. 2339D (S. 1532); (2) interference with federal
disaster relief efforts if death results, proposed 18 U.S.C. 1370 (H.R. 3728); (3) death
resulting from a violation of 18 U.S.C. 1590 (trafficking in persons) that involves raping
or kidnaping more than one person, proposed 18 U.S.C. 1590 (S. 2437); (4) death
resulting from a violation of proposed 18 U.S.C. 555 (S. 2611) that would have proscribed
evading immigration, customs or agricultural inspection at the border; and (5) death
resulting from the commission of federal crimes of terrorism, violations of 18 U.S.C. 175
(biological weapons), 175b (biological materials), 229 (chemical weapons), 831 (nuclear
materials), or of 42 U.S.C. 2284 (atomic weapons), or conspiracies or attempts to commit
such crimes or violations, proposed 18 U.S.C. 2339E (H.R. 3060, H.R. 5939, S. 3882, S.
Capital Punishment for Violation of Existing Crimes. Section 110 of the
Reauthorization Act merges 18 U.S.C. 1992 (2000 ed.) (wrecking trains) and 18 U.S.C.
1993 (2000 ed.) (attacks on mass transit) into a new 18 U.S.C. 1992. The train wreck
offense was a capital offense; the mass transit offense was not; under the new section both
are now capital offenses, 18 U.S.C. 1992.
The most common example of a proposed death penalty sentencing option for an
existing crime comes from some of the child safety bills, many of which would have
made the death penalty available where a child dies as a result the commission of a
federal crime of violence or some other federal crime: (1) S. 956 (crime of violence,
proposed 18 U.S.C. 3559(d)); (2) H.R. 2388 (same); (3) H.R. 3132(same); (4) H.R.
4472(same); and (5) H.R. 3860 (violations of 18 U.S.C. ch.110 (sexual exploitation of
children), ch. 117 transportation of illegal sexual activity), or 1591 (sex trafficking in
children), proposed 18 U.S.C. 2245(b)). Congress adopted a variation of this theme in
the Adam Walsh Child Protection and Safety Act when it amended 18 U.S.C. 2245 to
make murder a federal capital offense when committed in the course of a wider range of
federal child sexual abuse offenses.
The gang bills generally 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 or of the Travel Act (18 U.S.C. 1952): H.R. 1279, proposed
18 U.S.C. 521, 1952; S. 155, proposed 18 U.S.C. 523, 1952; H.R. 4472, proposed 18
U.S.C. 521, 1952; see also, H.R. 970, proposed 18 U.S.C. 523.
H.R. 3060, H.R. 5939, S. 2883, and S. 3848 would have made capital offenses of
several death-resulting terrorism-related offenses that are now punishable by no more than
life imprisonment, specifically, proposed 18 U.S.C. 832 (participating in foreign nuclear
or other weapon of mass destruction programs), proposed 18 U.S.C. 2332g (anti-aircraft
missiles), proposed 18 U.S.C. 2332h (radiological dispersal devices), proposed 18 U.S.C.
175c (smallpox virus), and proposed 18 U.S.C. 42 U.S.C. 2272 (atomic weapons). It is
possible that the drafters of H.R. 3060 also intended to treat receipt of military training
from a foreign terrorist organization, 18 U.S.C. 2339D, like treason and espionage; that
is, to make it a capital offense even if no death results from commission of the offense.
The statutes that outlaw treason and espionage make them punishable by death or a term
of imprisonment, 18 U.S.C. 2381, 794. Section 3591(a)(1) of the federal capital
punishment procedures provides that treason or espionage are punishable by death if
execution is found justified after considering the mitigating and aggravating factors listed
in section 3592. Section 3592(b) lists three aggravating factors for treason and espionage
cases, i.e., (1) the offender has a prior espionage or treason conviction, (2) the offense
involved a grave risk to national security, and (3) the offense involved a grave risk of
death.
Violation of section 2339D is punishable by imprisonment for not more than 10
years, 18 U.S.C. 2339D(a). H.R. 3060 would have made no change in section 2339D, but
it would have amended section 3591(a)(1) of the capital procedures provisions to say that
violations of sections 2381 (treason), 794 (espionage), or 2339D (terrorist training) may
be punished by death if execution is found justified after considering the mitigating and
aggravating factors listed in section 3592, proposed 18 U.S.C. 3591(a)(1). It also would
have amended the list of 3592(c) aggravating factors to add a fourth factor, i.e., the
defense involved substantial planning by the defendant, proposed 18 U.S.C. 3592(c)(4).
Assuming the conforming amendment to section 2339D – making it a capital offense –
was an oversight and in spite of the proposal’s caption (“addition of terrorism to death
penalty offenses not resulting death”), it is not clear that the courts would permit
imposition of the death penalty for a violation of section 2339D unless the offense also
involved a first degree murder. The Eighth Amendment’s cruel and unusual punishment
clause precludes imposing the death penalty for the rape of an adult woman by an
individual already under a sentence of life imprisonment at the time of the rape; it
precludes imposition of the death penalty even in the case of murder unless the defendant
at least acted intentionally or acted with reckless indifference to human life while
participating in a felony involving a murder; and since the Court’s decision in Furman v.
Georgia, it has never been called upon to approve, and consequently has never approved,
imposition of the death penalty for a crime that did not involve murder.
Moratorium. H.R. 4923/S. 122 would have repealed federal death penalty
provisions and barred imposition or execution of any capital sentence for violation of
federal law. It made no mention of capital punishment imposed for violation of state law.
H.R. 379, on the other hand, would have set a ten year moratorium on imposition and
execution of capital sentences in any state in which an individual originally sentenced to
death had subsequently been judicially found innocent. It said nothing of capital
punishment imposed or executed under federal law.