Capital Punishment Legislation in the 110th Congress: A Sketch
Capital Punishment Legislation in the
th
110 Congress: A Sketch
Charles Doyle
Senior Specialist in American Public Law
American Public Law Division
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/H.R. 6875,
would have abolished the federal death penalty. Another (H.J.Res. 80) 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, H.J.Res. 96). Several proposals 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.
S. 330, S. 607, S. 1320, S. 1348, and S. 1860. Numbered among the new capital offenses
and newly designated capital offenses would have been 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 or members of the armed forces, 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,
H.R. 880, H.R. 1645, H.R. 1914, H.R. 3150, H.R. 3153, H.R. 3156, S. 1320, and S.
1860. This is an abridged version of CRS Report RL34163, The Death Penalty: Capital
Punishment Legislation in the 110th Congress, by Charles Doyle.
Introduction. Existing federal law treats capital cases differently. There is no
statute of limitations for capital offenses. There is a preference for the trial of capital
cases in 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. The
Attorney General must ultimately approve the decision to seek the death penalty in any
given case. Defendants are entitled to notice when the prosecution intends to 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 jury 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. 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. In homicide cases, the sentencing hearing
involves two determinations: whether the defendant acted with the intent required and
whether the weighing of pertinent aggravating and mitigating circumstances warrant
imposition of the death penalty. 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 of a mitigating factor. 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.
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. 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 be killed.
Two constitutional amendments were offered at least in partial response. H.J.Res. 96
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 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.” H.J.Res. 80, 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.
Procedural Changes. During the 110th Congress, proposals were offered that
would have modified existing law relating to: (1) where a capital offense may be tried, (2)
the appointment of counsel in capital cases, (3) the pre-trial notification which the parties
must exchange in capital cases, (4) the procedures that apply when the defendant claims
to be mentally retarded, (5) adjustments in the statutory aggravating and mitigating
circumstances, (6) jury matters, and (7) the site of federal executions.
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, 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 previously ascertained by law. The Supreme Court held in
United States v. Rodriguez-Moreno, that a crime may be tried wherever any of its
“conduct elements” occur. Congress has provided that where possible capital cases
should be tried in the county in which they occur. H.R. 3156 and S. 1860 would have
dropped the language that calls for the trial of capital cases in the county in which they
occur. In its place, they would have installed language that stated that if an offense or
conduct related to it involves activities which affect interstate or foreign commerce, the
offense may be tried in any district in which the activities occurred. The proposed
amendment appeared to permit trial of an offense in a district in which related conduct
affecting interstate or foreign commerce occurs even if the offense itself and each of its
elements is committed entirely in another district. Such applications might appear to a
reviewing court to do more than the Constitution permits.
Capital defendants are entitled to the assignment of two attorneys for their defense.
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; and whether the right expires with the decision of the government
not to seek the death penalty. H.R. 851 would have amended the law so that prosecutor’s
notice of an intent to seek the death penalty, rather than indictment for a capital offense,
triggers the right to the appointment of second counsel.
The law now 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. 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. H.R. 851, H.R. 3156, and S. 1860 would have authorized a continuance in the
face of a delayed notification of an intent to seek the death penalty. They would also 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. They would have 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. 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. Here,
it would have afforded the prosecution a similar benefit. Critics may question the
symmetry.
Mental Retardation. Neither the insanity defense nor the prohibitions against trial
of the mentally incompetent necessarily preclude prosecution and conviction of the
mentally retarded. Nevertheless, neither the Constitution nor federal statutory provisions
allow the execution of a federal capital defendant suffering from mental retardation. The
limited available case law suggests 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. H.R. 851, H.R. 3156, and S. 1860 would have made
several procedural adjustments to accommodate claims of mental retardation in federal
capital cases. 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. 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 has provided prior notification.
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 has been found, and if so, to consider the
issue of mental retardation first among the mitigating factors. 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 been retarded continuously since under 18 years of age;
and that he has continuously possessed impaired mental functions including the ability to
learn, reason, and control impulses. There may be objections, however. The definition
of mental retardation might be thought too narrow to embrace all those constitutionally
protected. Resolution of mental retardation issues, some would contend, should occur
prior to trial as a matter of fairness and judicial economy if nothing else.
Aggravating and mitigating factors. Several bills suggested adjustments in the
designated aggravating and mitigating circumstances. 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 and H.R. 1914. The amendment would have limited the factor to instances
where the prosecution has 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 has 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.
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, e.g., 18 U.S.C.
241 (conspiracy against civil rights), 245 (federal protected rights), 247 (interference with
religious exercise), 37 (violence at international airports), 1512 (witness tampering), and
1513 (retaliating against a witness): H.R. 851, H.R. 3156, S. 1860. 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 most serious federal crimes are not now listed. 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 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.
The creation of a new obstruction of justice aggravating factor was a common
proposal, H.R. 851, H.R. 1914, H.R. 3156, S. 1860. 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.” 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.
Capital Juries. 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.”
H.R. 851 would have introduced a similar directive into the federal process in capital
cases. H.R. 3156 and S. 1860 would have used the same language but dropped references
to “sentiment” and “sympathy, perhaps in response to criticism of an earlier version ofth
the proposal. A number of proposals in the 110 Congress addressed 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.” H.R. 851 and H.R. 1914
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. 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. Perhaps to ensure that recourse
to juries of less than twelve will only be necessary in extreme cases, the two bills would
have increased the number of permissible alternate jurors from six to nine and afford each
side four addition peremptory challenges in the cases where more than six alternates are
impaneled. H.R. 851 would also have amended section 3592 to discourage the dismissal
of alternate jurors in capital cases until sentencing has been completed. Other proposals,
notably H.R. 3156 and S. 1860, would have left the number of jurors and alternates as is
and merely directed the court to retain alternates until sentencing has been completed.
Existing law permits a capital jury to unanimously recommend a sentence of death or life
imprisonment without the 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 for a
term of years.
New Federal Capital Offenses. S. 607 would have outlawed interference with
federal disaster relief efforts; when death results from a violation of the proscription, the
defendant may be sentenced to death or life imprisonment. H.R. 3806 would have made
sabotage of nuclear facility a capital offense if a death resulted from commission of the
offense. The bills drafted to counter gang violence — e.g., H.R. 3150 and H.R. 880 —
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 is a capital
offense if death resulted. The second, modeled after the provision that condemned 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 would have made the offense punishable by death if a death resulted. The murder
committed during and in relation to a drug trafficking offense appears as a capital offense
in other bills as well (H.R. 1118, H.R. 3156, and S. 1860); as does the new capital
multiple murder proposal (H.R. 3156 and S. 1860). 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. Existing law proscribes
overseas murder and assault committed against Americans by terrorists. H.R. 2376, H.R.
3147, H.R. 3156, S. 1320, and S. 1860 would have proscribed overseas kidnaping of
Americans by terrorists and proposed the death penalty as a sentencing option if a death
resulted. Several of the immigration bills — e.g., H.R. 1645, S. 330, and S. 1348 —
would have proscribed evasion of border inspection and made the offense punishable by
death, imprisonment for any term of years, or for life if death resulted. Rather than
amend existing non-capital federal terrorist offenses to make them capital offenses when
they result in a death, H.R. 855, H.R. 3156, and S. 1860 would have created a new
separate federal offense which would have outlawed the commission of, or attempt or
conspiracy to commit various federal terrorist offenses when a death resulted. Violations
would have been punishable by death or imprisonment for any term of years or for life.
Its impact might have been less dramatic than might appear, 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 the following crimes would have
become capital offenses if a death occurred during the course of their commission.
Capital Punishment for Existing Non-Capital Offenses. H.R. 855, H.R.
3156, H.R. 3147, and S. 1860 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), 2332g (anti-aircraft missile
offenses), 2332h (radiological dispersal device offenses), 175c (variola virus (small pox)
offenses); and 42 U.S.C. 2272 (atomic weapons offenses). The gang bills would have
rewritten the federal criminal gang statute to permit imposition of capital punishment for
a death-resulting violation of the newly crafted provisions, H.R. 880 and H.R. 3150. H.R.
3156 and S. 1860 made the same proposal. The Travel Act, among other things, outlaws
interstate travel to commit a crime of violence in furtherance of various drug, gambling,
or extortion offenses. H.R. 3156 and S. 1860 would have permitted imposition of the
death penalty if a violation resulted in death.
Abolition of Capital Punishment. S. 447/H.R. 6875 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 federal procedures for
implementation of the death penalty. It would have dropped 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 to list specific previous capital offenses
which may be tried at any time. It would have made comparable adjustments in the Code
of Military Justice.