Order Code RL30962
CRS Report for Congress
Received through the CRS Web
Capital Punishment: An Overview of Federal
Death Penalty Statutes
May 9, 2001
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Capital Punishment: An Overview of Federal Death
Penalty Statutes
Summary
With the passage of P.L. 103-322, the Violent Crime Control and Law
Enforcement Act of 1994, the federal death penalty became available as a possible
punishment for a substantial number of new and existing civilian offenses. On April
24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 made further
modifications and additions to the list of federal capital crimes. This report lists the
current federal capital offenses and summarizes the procedures for federal civilian
death penalty cases.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Capital Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Sentencing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Capital Punishment: An Overview of
Federal Death Penalty Statutes
Introduction
With the passage of P.L. 103-322, the Violent Crime Control and Law
Enforcement Act of 1994, the federal death penalty became available as a possible
punishment for a substantial number of new and existing civilian1 offenses. Further
1One new military death penalty statute, enacted in the 99th Congress, is now codified at 10
U.S.C. § 906a. It created a capital offense for the commission of espionage in violation of the
Uniform Code of Military Justice. The sentencing procedures set forth for the court-martial
in this section specify aggravating and mitigating factors to be considered, require special
findings regarding the existence of these factors, and direct that an accused may have broad
latitude in presenting mitigating or extenuating evidence. This statute evidently was intended
to conform to minimum constitutional standards, but the Supreme Court has not yet passed
upon its constitutional validity. Other death penalty provisions in the Uniform Code of
Military Justice include: 10 U.S.C. §§ 885 (desertion in time of war); 890 (assaulting or
willfully disobeying a superior commissioned officer in time of war); 894 (mutiny, sedition,
attempted mutiny, or failure to suppress or report a mutiny or sedition); 899 (misbehavior
before the enemy); 900 (subordinate compelling surrender); 901 (improper use of countersign
in time of war); 902 (forcing a safeguard); 904 (aiding the enemy); 906 (spying in time of
war); 913 (misbehavior of a sentinel in time of war); and 918 (premeditated murder or murder
in the course of burglary, sodomy, rape, robbery, or aggravated arson).
10 U.S.C. § 920(a) also provides for capital punishment as a possible punishment for
rape. Under Rule 1004(c)(9) of the Rules for Court-Martial in the Manual for Courts-
Martial, the death penalty is only available as a sentencing option in a rape case under 10
U.S.C. § 920 if “(A) The victim was under the age of 12; or (B) The accused maimed or
attempted to kill the victim.” In Coker v. Georgia, 433 U.S. 584 (1984), the United States
Supreme Court held the death penalty disproportionate, under the Eighth Amendment’s
prohibition of cruel and unusual punishment, to the rape of an adult woman by an escaped
felon who had been serving sentences for murder, rape, kidnapping, and aggravated assault
at the time of his escape, where the victim survived. (For more discussion of the Coker
decision, see fn. 7, infra.) In United States v. Matthews, 16 M.J. 354 (C.M.A. 1983), on
remand, 17 M.J. 978 (C.M.R. 1984), the United States Court of Military Appeals observed
that:
Congress obviously intended that in cases where an accused servicemember
is convicted of premeditated murder, certain types of felony murder, or rape, the
court-martial members should have the option to adjudge a death sentence. See
Articles 118 and 120 [10 U.S.C. § 918 and 920]. Probably this intent cannot be
constitutionally effectuated in a case where the rape of an adult female is involved,
(continued...)

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changes to the list of federal capital punishment statutes resulted from the passage of
the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, on April
24, 1996. This report lists the current federal death penalty offenses and summarizes
the procedures for civilian death penalty cases.
Capital Offenses
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court held
unconstitutional a capital sentencing scheme which gave the sentencing decision-
maker unbridled discretion in determining whether to impose a death sentence in a
1(...continued)
Coker v. Georgia, 433 U.S. 584 . . . (1977) – at least, where there is no purpose
unique to the military mission that would be served by allowing the death penalty
for this offense. . . .
16 M.J. at 380. See, United States v. Christie, 1995 CCA LEXIS 220 (A.F. Ct. Crim. App.
August 28, 1995); United States v. Clark, 18 M.J. 775, 776 (N-M. Ct. Crim. App. 1984);
United States v. McReynolds, 9 M.J. 881, 882 (A.F.C.M.R. 1980). See also, United States
v. Curtis, 32 M.J. 252, 266 (C.M.A. 1991), and United States v. Straight, 42 M.J. 244, 247
(C.A.A.F 1995), interpreting Rule 1004(c)(9) as having been drafted in an effort to comply
with Coker. The constitutional sufficiency of a death sentence imposed for rape applying the
aggravating factors in Rule 1004(c)(9) does not appear to have been tested at the time of the
writing of this report.
Prior to enactment of 10 U.S.C. § 906a, President Reagan issued an executive order
which changed the sentencing procedures in the Manual of Courts-Martial in an apparent
attempt to conform them to minimum constitutional standards. E.O. 12473, issued April 13,
1984. In Loving v. United States, 517 U.S.748 (1996), writ of mandamus denied, 47 M.J.
438 ( C.A.A.F. 1998), cert. denied, 525 U.S. 1040 (1998), the Supreme Court addressed a
constitutional challenge on Eighth Amendment and separation of powers grounds to the
aggravating factors applicable to military death penalty cases promulgated by executive order
and included in Rule for Courts-Martial (RCM) 1004, as amended. Loving contended that
fundamental policy determinations with respect to aggravating factors in death penalty cases
must be made by Congress through statutory enactments, rather than by the President. The
Court, assuming that Furman v. Georgia, 408 U.S. 238 (1972), and subsequent cases applied
to the crime and sentence before it, found that the aggravating factors included in RCM 1004
were necessary, from a constitutional perspective, to adequately narrow the class of persons
eligible to receive the death penalty under the statute under which Loving was convicted and
sentenced. Further, the Court rejected Loving's contention that the President's promulgation
of these aggravating factors by executive order violated separation of powers principles. The
Court found that the Congress had the power to delegate the authority to prescribe aggravating
factors in military capital murder cases to the President, and had in fact made a valid
delegation of that authority in 10 U.S.C. §§ 818, 836(a) and 856. The Court also found a
connection between the delegated authority and the President's constitutional duties as
Commander in Chief. The capital sentencing procedures governing civilian capital cases
added by P.L. 103-322, Title VI, Sec. 60002(a), adding new 18 U.S.C. §§ 3591-3598, do not
apply to "prosecutions under the Uniform Code of Military Justice (10 U.S.C. § 801)." P.L.
103-322, Title VI, Sec. 60004.

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given case. Prior to the passage of the Violent Crime Control and Law Enforcement
Act of 1994, P.L. 103-322, all but two2 of the existing federal civilian death penalty
provisions suffered from constitutional frailties like those of the Georgia statute at
issue in Furman. The Act revived the death penalty for several previously
unenforceable capital offenses, added capital punishment to the penalties available for
a few other existing federal offenses and created a number of new capital offenses.
The Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, expanded
and modified the list of federal capital punishment offenses. In the wake of these
Acts, the death penalty is an available sentencing option for the following offenses:
! 7 U.S.C. § 2146(b)–first degree murder of any person while engaged in or on
account of the performance of his or her official duties with respect to the
transportation, sale, or handling of certain animals under 7 U.S.C. ch. 54, §§
2131 et seq. This provision cross-references 18 U.S.C. §§ 1111 (murder) and
1114 (protection of officers and employees of the United States) for applicable
punishment.
2In 1974, the Congress enacted a death penalty statute for air piracy where death resulted from
the commission of the offense, and responded to the concerns reflected in Furman by including
procedures designed to tailor the sentencing discretion of the judge or jury in determining the
appropriate sentence to impose in the case before them. The substantive provisions were
codified at 49 U.S.C. §§ 1472(i) and (n) (49 U.S.C. § 46502 in the revised Title 49 of the
United States Code), while the procedures for a separate sentencing hearing, specifying
aggravating and mitigating factors to be considered in the sentencing determination, and
requiring a special verdict finding the existence or non-existence of each of the factors, were
codified at then existing 49 U.S.C. App. § 1473(c)/49 U.S.C. § 46503. The constitutional
sufficiency of these procedures was not tested. They might have given rise to a question as
to whether they satisfied the constitutional minimum in light of the Supreme Court's decision
in Lockett v. Ohio, 438 U.S. 586, 604 (1978), which held invalid Ohio's death penalty statute
because it failed to permit consideration, in a capital case, of any aspects of the defendant's
character or record or the circumstances of the offense as a mitigating factor. The federal air
piracy sentencing provisions in former 49 U.S.C. App. § 1473(c)/49 U.S.C. § 46503 appeared
to limit the mitigating factors which may be considered in a capital case, and therefore might
have been subject to attack. The death penalty sentencing procedures for aircraft piracy in
former 49 U.S.C. App. 1473(c)/49 U.S.C. § 46503 were repealed by Sec. 60003(b)(2), 108
Stat. 1970, of P.L. 103-322. In a capital aircraft piracy case under current law, the general
death penalty sentencing provisions in 18 U.S.C. § 3591 et seq. would apply. For a
discussion of capital sentencing provisions, see the discussion of capital sentencing procedures
starting at page 13, infra.
In the Anti-Drug Abuse Act of 1988, P.L. 100-690, the death penalty was made
available for certain controlled substances offenses where intentional death resulted from the
offense. 21 U.S.C. §§ 848(e) and (g)-(r). The measure, as amended, includes sentencing
procedures which provide for a separate sentencing hearing; specifies aggravating and
mitigating factors, detailing the means of proof and requiring special findings concerning
them; and supplies instruction for the imposition, appeal, and execution of a death sentence.
The availability of counsel as well as investigative, expert and other services for indigent
defendants is also addressed. The composition of the jury is specified, and the jury is required
to return to the court a certificate signed by each juror indicating that discrimination played
no part in his or her sentencing decision. Thus far, these capital sentencing provisions have
withstood constitutional challenge.

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! 8 U.S.C. § 1324(a)--murder, with death resulting from smuggling aliens into
the United States.
! 18 U.S.C. §§ 32 and 34–willful destruction of aircraft within the special
aircraft jurisdiction of the United States; of any civil aircraft used, operated, or
employed in interstate, overseas or foreign air commerce; or of aircraft
facilities, where death results.3 Sections 32 and 34 also cover performing an
act of violence or incapacitation against any individual on such aircraft which
is likely to endanger the safety of the aircraft, where death results. Where a
U.S. national is on board the civil aircraft involved or would have been on
board, where an offender is a U.S. national, or where an offender is found in
the U.S. after commission of such an offense, these provisions would also
cover: engaging in a willful act of violence against an individual while on
board a civil aircraft registered in a country other than the United States, which
act is likely to endanger the aircraft in flight, where death results; willfully
destroying a civil aircraft registered in a country other than the U.S. or
damaging it so as to make it incapable of flight or endangering its safety in
flight, where death results; or willfully placing a device or substance on such
an aircraft likely to destroy that aircraft, to render it incapable of flight, or to
endanger its safety while in flight, where death results.

! 18 U.S.C. §§ 33 and 34--willful destruction of motor vehicles engaged in
interstate or foreign commerce, or their facilities, where death results.4
! 18 U.S.C. § 36--murder committed in furtherance of or to escape detection of
a major drug offense by firing a weapon into a group of two or more people
(drive-by shooting).5
! 18 U.S.C. § 37--murder, with death resulting from a violation of the
proscription against the use of violence at international airports. U.S.
jurisdiction under this provision covers instances where the prohibited activity
takes place in the United States or where it takes place outside the United
States and the offender is later found in the United States, or where an
offender or a victim is a U.S. national. It does not cover instances where the
relevant conduct was committed in the United States during or in connection
with a labor dispute and the conduct is a felony under pertinent State law.6
3The offense is set forth generally in 18 U.S.C. § 32, while the penalty for commission of the
offense where death results is drawn from 18 U.S.C. § 34. The latter section makes the death
penalty available for offenses prohibited by 18 U.S.C. ch. 2 (§§ 31-38), which result in the
death of any person.
4The offense is set forth generally in 18 U.S.C. § 33, while the penalty for commission of the
offense where death results is specified in 18 U.S.C. § 34.
5See also, 18 U.S.C. § 34, which makes capital punishment available for any offense
prohibited by 18 U.S.C. ch. 2 (§§ 31-38) where death results.
6See also, 18 U.S.C. § 34, which makes the death penalty available for any offense prohibited
(continued...)

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! 18 U.S.C. § 115(b)(3)--first degree murder of a member of the immediate
family of a United States official, a United States judge, a Federal law
enforcement officer, or an official whose killing would be a crime under 18
U.S.C. § 1114, with intent to impede, intimidate, or interfere with such official,
judge, or law enforcement officer while engaged in the performance of official
duties, or with intent to retaliate against such official, judge, or law
enforcement officer on account of the performance of official duties.
! 18 U.S.C. §§ 229 and 229A(a)(2)–knowingly developing, producing,
acquiring, transferring directly or indirectly, receiving, stockpiling, retaining,
owning, possessing, using, or threatening to use any chemical weapon; or
knowingly assisting or inducing any person to do any of the above; or
knowingly attempting or conspiring to do any of the above, where death
results. The offenses are defined in 18 U.S.C. § 229 and do not cover
retention, ownership, possession, transfer, or receipt of a chemical weapon by
a department, agency, or other entity of the United States, pending destruction
of the weapon. Also exempt from coverage of these offenses are persons,
including members of the U.S. Armed Forces, authorized by law or by an
appropriate officer of the United States to retain, own, possess, transfer or
receive the chemical weapon pending destruction of the weapon. Similarly
exempt is any otherwise nonculpable person, in an emergency situation, if the
person is attempting to destroy or seize the weapon. This covers conduct
committed within the United States; committed by a U.S. national outside the
United States; committed against a U.S. national while the national is outside
the United States; or committed against property owned, leased, or used by the
United States or any federal agency or department, whether within or outside
the United States.
! 18 U.S.C. § 241--murder, with death resulting from a conspiracy to violate
civil rights. Also appears to provide for possible capital punishment where
acts constituting a conspiracy against rights under this section involve
kidnapping or attempted kidnapping, aggravated sexual abuse or attempted
aggravated sexual abuse, or attempted killing, regardless of whether death
results from the commission of the offense. But see, 18 U.S.C. § 3591(a)(2).7
6(...continued)
by 18 U.S.C. ch. 2 (§§ 31-38) where death results.
7Under the Supreme Court's reasoning in Coker v. Georgia, 433 U.S. 584 (1977), and its
progeny, a death penalty imposed under such circumstances, where the commission of the
offense did not result in a death, might give rise to a question as to whether the punishment
imposed was disproportionate to the crime committed. Coker involved the rape of an adult
woman by an escaped felon who had been serving sentences for murder, rape, kidnapping, and
aggravated assault at the time of his escape, where the victim survived. The Court, while
acknowledging the seriousness of the crime, found the death penalty disproportionate to the
offense. This case has given rise to questions as to whether the death penalty would be found
appropriate, under Eighth Amendment cruel and unusual standards, for any offense where a
death did not result. See, e.g., Coker, 433 U.S., at 621 (Burger, C.J., dissenting). Indeed,
(continued...)

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7(...continued)
Chief Justice Burger also raised a question as to whether the death penalty might also be open
to challenge under the plurality's reasoning for crimes such as "treason," "airplane hijacking,
kidnapping, and mass terrorist activity," which, although dangerous and constituting a serious
threat to public safety, did not necessarily result in immediate death. Id. Similar reasoning
might give rise to a question as to the constitutionality of a death penalty for espionage where
death did not result from the commission of the offense.
Except with respect to espionage and treason as addressed in 18 U.S.C. § 3591(a)(1),
and certain controlled substances offenses referred to in 18 U.S.C. § 3591(b), the Coker issue
raised by provision of a death penalty for offenses not involving death may be minimized by
the impact of 18 U.S.C. § 3591(a)(2), which provides that a death sentence may be imposed
upon a defendant found guilty of
(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 that 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,
. . . .
Under Subsection 3591(a)(1), the death penalty is made available in cases where the
defendant has been found guilty of an offense described in 18 U.S.C. § 794 (espionage) or §
2381 (treason), without explicitly restricting the availability of capital punishment to those
cases in which death results. Subsection 3591(b) makes the death penalty available for 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 member of the
family or household of such person,
(continued...)

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! 18 U.S.C. § 242--murder, with death resulting from a deprivation of civil rights
under color of law. Also appears to make capital punishment available for acts
constituting a deprivation of rights under color of law involving kidnapping or
attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual
abuse, or attempted killing, regardless of whether a death occurs during the
commission of the offense. But see, 18 U.S.C. § 3591(a)(2).8
! 18 U.S.C. § 245(b)--murder, with death resulting from a deprivation of
federally protected rights. Also appears to make death penalty available for
deprivation of federally protected rights if such acts include kidnapping or an
attempt to kidnap, aggravated sexual abuse or attempted aggravated sexual
abuse, or attempted killing, regardless of whether a death occurs during the
commission of the offense. But see, 18 U.S.C. § 3591(a)(2).9
! 18 U.S.C. § 247--murder, with death resulting from intentionally damaging
religious property or intentionally obstructing the free exercise of religion.
Also appears to make capital punishment available for acts which constitute
intentionally damaging religious property or intentionally obstructing free
exercise of religion involving kidnapping or attempted kidnapping, aggravated
sexual abuse or attempted aggravated sexual abuse, or attempted killing. But
see, 18 U.S.C. § 3591(a)(2).10
! 18 U.S.C. § 351--assassination of Members of Congress, the Cabinet, or the
Supreme Court, or major Presidential or Vice Presidential candidates.
! 18 U.S.C. § 794(a), 18 U.S.C. § 3591(a)(1)--espionage resulting in the
identification and consequent death of an agent of the United States, or
7(...continued)
. . . .
8As discussed in greater depth at fn. 7, above, it is questionable whether the death penalty may
be constitutionally applied in cases where the offense committed does not result in death, in
light of the Supreme Court's 1977 decision in Coker v. Georgia, supra. Note that operation
of 18 U.S.C. § 3591(a)(2) would appear to limit the availability of the death penalty where
death did not result from commission of an offense under 18 U.S.C. § 242, despite language
in the offense statute that appears to provide for possible capital punishment.
9It is questionable whether the death penalty can constitutionally be applied in cases where the
offense does not result in death, in light of the Supreme Court's decision in Coker v. Georgia,
supra, as discussed in greater depth at fn. 7, above. Note that operation of 18 U.S.C. §
3591(a)(2) would seem to limit the availability of the death penalty for offenses under 18
U.S.C. § 245(b) which do not result in death, even though the language of the offense
provision appears to provide for possible capital punishment.
10As discussed in greater depth at fn. 7, supra, it is uncertain whether the death penalty may
be applied to offenses which do not result in death in light of the Supreme Court’s decision
in Coker v. Georgia, supra. Note that operation of 18 U.S.C. § 3591(a)(2) would appear to
limit the availability of the death penalty for offenses under 18 U.S.C. § 247 which do not
result in death, even though the language of the offense provision appears to provide for
possible capital punishment.

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involving nuclear weaponry, military spacecraft or satellites, early warning
systems or other means of defense or retaliation against large-scale attack, war
plans, communications intelligence or cryptographic information, or any other
major weapons system or major element of defense strategy.11
! 18 U.S.C. § 794(b), 18 U.S.C. § 3591(a)(1)--espionage in time of war with
intent that information be communicated to the enemy. Covers collection,
recording, publishing, or communicating, or attempting to elicit any
information with respect to movement, numbers, description, condition, or
disposition of Armed Forces, ships, aircraft, or war materials of the United
States; plans, conduct, or supposed plans or conduct of naval or military
operations; any works or measures undertaken to fortify or defend any place;
or any other information relating to the public defense, which might be useful
to the enemy.12
! 18 U.S.C. § 844(d)--interstate transportation or receipt of explosives with the
knowledge or intent that they are to be used to kill another, where death
results directly or proximately to any person, “including any public safety
officer performing duties.”
! 18 U.S.C. § 844(f)(3)--malicious damage or destruction or attempted damage
or destruction of any building, vehicle, or other personal or real property in
whole or in part owned or possessed by, or leased to, the United States or any
department or agency thereof through use of fire or explosives, where the
conduct directly or proximately caused the death of any person, “including any
public safety officer performing duties.”
! 18 U.S.C. § 844(i)--malicious damage or destruction or attempted damage or
destruction, through the use of fire or explosives, of real or personal property
used in interstate or foreign commerce or used in any activity affecting such
commerce, where death results directly or proximately to any person,
“including any public safety officer performing duties.”
! 18 U.S.C. § 924(c) and (j)(1)--gun murders during federal crimes of violence
or drug trafficking crimes.
! 18 U.S.C. § 930--first degree murder involving use of firearm or other
dangerous weapon during attack on a federal facility.
11It is uncertain whether the death penalty may be applied to offenses which do not result in
death, in light of the Supreme Court's analysis in Coker v. Georgia, supra, which is discussed
in greater depth at fn. 7, supra. The issue would be whether, under the Eighth Amendment's
cruel and unusual standard, the penalty would be deemed disproportionate to the crime.
12In light of the Court's reasoning in Coker v. Georgia, supra, as discussed at fn. 7, supra, a
death sentence imposed for this offense may be subject to an Eighth Amendment challenge on
the grounds that the punishment is disproportionate to the crime. Such a challenge would
appear to have less force if the commission of the offense caused someone's death; such a
result may be likely considering the nature of the information which may be involved in such
war-time disclosures and the potential impact of such disclosures.

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! 18 U.S.C. § 1091--genocide committed in the United States or by a United
States national.
! 18 U.S.C. § 1111--first degree murder within the special maritime or territorial
jurisdiction of the United States.13
! 18 U.S.C. § 1114--first degree murder of federal officers or employees,
including members of the uniformed services, while such officer or employee
is engaged in or on account of the performance of official duties, or of any
person assisting such officer or employee in the performance of such duties or
on account of that assistance.
! 18 U.S.C. § 1116(a)--first degree murder of foreign officials, official guests,
or internationally protected persons. Authorizes United States jurisdiction
over the offense if the victim is an internationally protected person outside the
United States where the victim is a representative, officer, employee, or agent
of the United States; where an offender is a U.S. national; or where an offender
is afterwards found in the United States.
! 18 U.S.C. § 1118--murder by a federal prisoner serving life sentence at the
time of the offense.
! 18 U.S.C. § 1119--first degree murder of U.S. national outside the United
States but within the jurisdiction of a foreign country.
! 18 U.S.C. § 1120--first degree murder by escaped federal prisoner who was
confined under a life sentence.
! 18 U.S.C. § 1121--murder of state or local official, officer, or employee, or
other person aiding federal criminal investigations, or of state correctional
officer while the victim is engaged in the performance of official duties,
because of the performance of such duties, or because of the victim's status as
a public servant.
! 18 U.S.C. § 1201--violation of federal kidnapping laws where death results.
Except in the case of kidnapping of a minor by his or her parent, this section
covers kidnapping when the victim is transported in interstate or foreign
commerce; when the act is committed within the special maritime or territorial
jurisdiction of the United States or within the special aircraft jurisdiction of the
United States; when the victim is a foreign official, internationally protected
person, or official guest; or when the victim is a federal officer or employee
covered by 18 U.S.C. § 1114 who is kidnapped while engaged in or on
account of performance of official duties. Where the victim is an
internationally protected person outside the United States, U.S. jurisdiction is
1349 U.S.C. § 46506(1) extends federal criminal jurisdiction to certain offenses committed
aboard an aircraft in flight. One of the offenses referenced by this subsection is 18 U.S.C. §
1111.

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authorized if the victim is a representative, officer, employee, or agent of the
United States; if an offender is a U.S. national; or if an offender is afterwards
found in the United States.
! 18 U.S.C. § 1203--hostage taking where death results.
! 18 U.S.C. § 1503--first degree murder of court officer or juror in federal
judicial proceedings.
! 18 U.S.C. § 1512--murder, with death resulting from tampering with a federal
witness, victim or informant.
! 18 U.S.C. § 1513--first degree murder, with death resulting from retaliation
against a federal witness, victim or informant.
! 18 U.S.C. § 1716--mailing or depositing for mailing nonmailable injurious
articles where death results.
! 18 U.S.C. § 1751(a), (b)--assassination/first degree murder of the President;
President-elect; Vice President; or, if there is no Vice President, the officer
next in order of succession to the Presidency; of the Vice President-elect; of
another person acting as President under the Constitution and laws of the
United States; or of certain employees of the Executive Office of the President
or of the Office of the Vice President. Also covers kidnapping of any of these
officials or employees, where death results.
! 18 U.S.C. § 1958--murder, with death resulting from the use of facilities of
interstate commerce in the commission of a murder for hire.
! 18 U.S.C. § 1959(a)(1)--murder, as consideration for receipt of, or as
consideration for a promise or agreement to pay, anything of pecuniary value
from an enterprise engaged in racketeering activity; or murder for the purpose
of gaining entrance to or maintaining or increasing position in an enterprise
engaged in racketeering activity.
! 18 U.S.C. § 1992--murder, with death resulting from wrecking trains or
related structures, facilities or appurtenances, employed in interstate
commerce.
! 18 U.S.C. § 2113(e)--murder, with the death resulting from: robbery or
attempted robbery of a federally insured bank or savings and loan association
or credit union; knowing receipt of stolen goods from such a robbery;
avoiding or attempting to avoid apprehension for such an offense; or escaping
or attempting to escape from arrest or confinement from such an offense.
! 18 U.S.C. § 2119(3)--murder, with death resulting from carjacking or
attempted carjacking, of a car transported in interstate commerce.

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! 18 U.S.C. § 2245--murder, with death resulting from a federal sexual abuse
offense.14
! 18 U.S.C. § 2251--murder, with death resulting from violation of federal laws
against sexual exploitation of children.
! 18 U.S.C. § 2280--violence against maritime navigation where death results:
committed against or on board a ship flying the United States flag; committed
in the United States where the activity is not prohibited by pertinent state
criminal law; committed by a United States national or a stateless person who
habitually resides in the United States; committed against a United States
national; committed to coerce the United States; or committed by one later
found within the United States.
! 18 U.S.C. § 2281--murder, with death resulting from violence committed
aboard a fixed ocean platform within the United States or by a United States
national or against a United States national, committed to coerce the United
States, or committed by one later found within the United States.
! 18 U.S.C. § 2332(a)(1)--murder of a United States national overseas.
! 18 U.S.C. § 2332a–where death results, use, attempted use, or conspiracy to
use, weapons of mass destruction: against a United States national outside the
United States; against any person within the United States, where the results
of such use affect interstate or foreign commerce or, in the case of a threat,
attempt or conspiracy, would have affected interstate or foreign commerce; or
against federal property. New subsection (b), added by P.L. 104-132, would
make the death penalty also available with respect to any U.S. national who,
without lawful authority, uses or threatens, attempts, or conspires to use a
weapon of mass destruction outside of the United States, where death results.
P.L. 104-132 also modified the definition of "weapon of mass destruction,” so
that it now includes: any destructive device as defined in 18 U.S.C. § 921; any
weapon that is designed or intended to cause death or serious bodily injury
through the release, dissemination, or impact of toxic or poisonous chemicals,
or their precursors; any weapon involving a disease organism; or any weapon
that is designed to release radiation or radioactivity at a level dangerous to
human life.
! 18 U.S.C. § 2332b--acts of terrorism transcending national boundaries, where
death results. Specifically prohibits killing, kidnapping, maiming, committing
an assault resulting in serious bodily injury or committing an assault with a
dangerous weapon within the United States. Also prohibits creating a
substantial risk of serious bodily injury to another by destroying or damaging
any structure, conveyance, or other real or personal property within the United
States, or attempting or conspiring to do so, where the conduct transcends
1449 U.S.C. § 46506(1) extends federal criminal jurisdiction to certain offenses committed
aboard an aircraft in flight, including 18 U.S.C. ch. 109A, dealing with sexual abuse. Among
the provisions of Chapter 109A is 18 U.S.C. § 2245, added by P.L. 103-322.

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CRS-12
national boundaries and meets set jurisdictional criteria. Those criteria include:
the offender used the mails or any facility of interstate or foreign commerce;
the offense obstructed, delayed or affected interstate or foreign commerce, or
the offense would have done so if consummated; the victim or intended victim
is the U.S. government, a member of the uniformed services, or any official,
officer, employee, or agent of the any of the three branches of the U.S.
government or of any department or agency of the United States; the structure,
conveyance or other real or personal property is, in whole or in part, owned,
possessed, or leased by the United States or a department or agency thereof;
the offense is committed in the territorial sea of the United States, including the
airspace above, the seabed and subsoil below, and artificial islands and fixed
structures erected thereon; or the offense is committed within the special
maritime or territorial jurisdiction of the United States. The death penalty is
available for any such offense involving a killing or resulting in death to any
person from conduct prohibited by this section.
! 18 U.S.C. § 2332c–where death results, unlawful use, attempt to use, or
conspiracy to use a chemical weapon against: a U.S. national outside the
United States; any person within the United States; or any property owned,
leased, or used by the federal government within or outside the United States.
Defines chemical weapon to mean any weapon designed or intended to cause
widespread death or serious bodily injury through the release, dissemination,
or impact of toxic or poisonous chemicals or precursors of toxic or poisonous
chemicals.
! 18 U.S.C. § 2340A–torture or attempted torture committed outside the United
States by a person acting under color of law, where death results. United
States jurisdiction under this provision covers offenses where the alleged
offender is a U.S. national or where the alleged offender is present in the
United States, regardless of the nationality of the victim or alleged offender.
! 18 U.S.C. § 2381, 18 U.S.C. § 2391(a)(1); U.S. Constitution, Article 3, Sec.
3, cl. 1--treason by a person owing allegiance to the United States. Involves
either levying war against the United States or adhering to enemies of the
United States, giving aid and comfort to them either within the United States
or elsewhere. Constitution provides that no person shall be convicted of
treason except on the testimony of two witnesses to the same overt act or on
confession in open court.15
! 21 U.S.C. § 848(c)(1), 18 U.S.C. § 3591(b)(1)--drug kingpin violation
committed as part of a continuing enterprise under conditions set forth in 21
U.S.C. § 848(b), involving twice the amount of controlled substances specified
15If no death results from the commission of this offense, then, under the reasoning of the
Court in Coker v. Georgia, supra, a death sentence imposed for this crime may be open to
constitutional challenge. See discussion in fn. 7, supra.

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in 21 U.S.C. § 848(b)(2)(A) or twice the gross receipts specified in 21 U.S.C.
§ 848(b)(2)(B).16
! 21 U.S.C. § 848(c)(1), 18 U.S.C. § 3591(b)(2)--attempted murder by a drug
kingpin endeavoring to obstruct justice.17
! 21 U.S.C. § 848(e)(1)--intentional killing in the course of a violation of the
drug kingpin statute.
! 21 U.S.C. § 848(e)(1)--murder of a law enforcement officer in furtherance of
a controlled substances offense.
! 49 U.S.C. §§ 46502(a)(2)(B) and (b)(1)(B)--air piracy, where death of another
person results from the commission or the attempt. Subsection 46502(a)(2)(B)
applies to aircraft piracy committed within the special aircraft jurisdiction of
the United States. Subsection 46502(b)(1)(B) applies to an offense committed
on an aircraft in flight outside the special aircraft jurisdiction of the United
States and later found in the United States, where the takeoff or landing of the
aircraft involved was located outside the territory of the aircraft's country of
registration.
Capital Sentencing Procedures
Under 18 U.S.C. § 3432, a capital defendant must be provided a copy of the
indictment and a list of veniremen and prosecution witnesses, stating the place of
abode of each, at least three full days before trial begins. P.L. 103-322 amended this
provision to permit the list of veniremen and witnesses to be withheld from a capital
defendant if the court finds by a preponderance of the evidence that providing the list
may jeopardize the life or safety of any person.
P.L. 103-322 also amended 18 U.S.C. § 3005 to provide that the trial court in
a capital case shall, upon defendant's request, promptly assign two counsel, at least
one of whom shall be learned in the law applicable to capital cases. Counsel shall
have free access to the accused at all reasonable hours. In assigning such counsel, the
court must consider the recommendations of the Federal Public Defender
organization, if one exists in the district. Otherwise, the recommendation of the
Administrative Office of the United States Courts must be taken into account.
16As noted in fn. 7, supra, it is questionable, in light of the Supreme Court's decision in Coker
v. Georgia, supra, whether the death penalty may be constitutionally applied to cases where
a death does not result from the commission of the offense.
17The imposition of a death sentence for this offense might also give rise to an Eighth
Amendment proportionality challenge under Coker v. Georgia, supra, see fn. 7, supra.

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Under P.L. 103-322, as amended by P.L. 104-132,18 new sentencing procedures
for federal civilian19 capital cases were set forth, to be codified in chapter 228 of Title
18 of the United States Code, at 18 U.S.C. §§ 3591-3598. The government must
give a capital defendant timely notice before trial or before a guilty plea is accepted
that the prosecution intends to seek a death sentence and must specify the aggravating
factor or factors upon which it intends to rely for this purpose.20 This notice must be
filed with the court.21 The new statutory procedures specify mitigating and
aggravating factors to be considered in determining whether a death sentence is
warranted in a given case.22 In addition to the specified mitigating factors,23 other
factors in the defendant's background, record, or character or any other mitigating
circumstances may be considered. In addition to the specified aggravating factors,24
1818 U.S.C. § 3592 was also amended by P.L. 104-294, Title VI, §§ 601(b)(7), 604(b)(35),
Oct. 11, 1996, 110 Stat. 3499, 3508. Section 601(b)(7) of this Act corrected a cross
reference in 18 U.S.C. § 3592(c)(1) by striking “2339" and inserting “2332a.” Section
604(b)(35) of the P.L. 104-294, replaced a reference in 18 U.S.C. § 3592(c)(12) to
“Controlled Substances Act” with a reference to “Comprehensive Drug Abuse Prevention and
Control Act of 1970.” Under Section 604(d) of P.L. 104-294, both of these amendments
became effective on the date of enactment of P.L. 103-322, which was approved Sept. 13,
1994.
19Under P.L. 103-322, Sec. 60004, the provisions of the new 18 U.S.C. ch. 228, §§ 3591-
3598, do not apply to prosecutions under the Uniform Code of Military Justice. See fn. 1 at
p. 1 of this report, supra.
2018 U.S.C. § 3593(a).
21Id.
2218 U.S.C. § 3592.
23Under 18 U.S.C. § 3592(a), specified mitigating factors may include: a defendant’s
impaired capacity; the fact that the defendant acted under unusual and substantial duress; the
defendant’s minor participation in the capital offense; the fact that equally culpable
defendant(s) will not be punished by death; the fact that the defendant has no prior criminal
record; the defendant’s severe mental or emotional disturbance when committing the offense;
and the victim’s consent to the conduct which resulted in his or her death.
2418 U.S.C. § 3592(b) sets out aggravating factors applicable to treason or espionage capital
offenses, including a defendant’s prior espionage or treason offense for which he or she could
have been sentenced to life imprisonment or death, the fact that the defendant knowingly
created a grave risk of substantial danger to national security in the commission of the offense
at bar, or the fact that the defendant knowingly created a grave risk of death to another person
in commission of the offense.
18 U.S.C. § 3592(c) sets forth sixteen aggravating factors for homicide. Among these
are: the fact that the death or injury resulting in death occurred during commission, attempted
commission or flight from commission of one of a series of specified felonies; the defendant’s
prior conviction for a state or federal felony involving a firearm, other than a capital offense
under 18 U.S.C. §924(c) and (j); the defendant’s prior conviction for a federal or state offense
which resulted in death, for which life imprisonment or a death sentence was authorized by
statute; the defendant’s prior conviction of two or more federal or state felonies, committed
on separate occasions, involving infliction or attempted infliction of serious bodily injury or
death; knowing creation of grave risk of death to one or more persons other than the victim
(continued...)

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the jury, or if there is no jury, the court, may consider whether any other aggravating
factor for which notice has been given exists.
In a capital case, a separate sentencing hearing must be held before a jury or, if
there is no jury, before the court.25 The government must prove aggravating factors26
24(...continued)
of the offense during the commission of the offense or escape from apprehension for the
offense; commission of the offense in an especially heinous, cruel, or depraved manner;
procurement of commission of the offense by payment or promise of payment; commission
of the offense for pecuniary gain; commission of the offense after substantial planning and
premeditation to cause another’s death or to commit an act of terrorism; the defendant’s prior
conviction of two or more federal or state drug trafficking felonies; the victim’s particular
vulnerability due to old age, youth or infirmity; the defendant’s previous conviction of serious
drug felonies under title II or III of the Comprehensive Drug Abuse Prevention and Control
Act of 1970, for which sentences of at least five years of imprisonment could be imposed, or
previous conviction for engaging in a continuing criminal enterprise; the defendant’s
commission of the offense during the course of engaging in a continuing criminal enterprise
where the offense involved distribution of drugs to persons under 21; the fact that the offense
was committed against certain high public officials or federal public servants (including
judges, law enforcement officers, or employees of a U.S. penal or correctional institution while
engaged in official duties or because of their official duties or their status as public servants);
where the offense involves sexual abuse under 18 U.S.C. § 2241 et seq., or sexual abuse of
children under 18 U.S.C. § 2251 et seq., the fact that the defendant was previously convicted
of sexual assault or child molestation; or the fact that the defendant intentionally killed or
attempted to kill more than one person in a single criminal episode.
Aggravating factors for drug offense death penalties are set forth in 18 U.S.C. §
3592(d). These eight factors include: previous conviction of a state or federal offense
involving the death of a person for which the death penalty or life imprisonment was
authorized; previous conviction of two or more federal or state felonies committed on different
occasions involving importation, manufacture or distribution of a controlled substance or
involving the infliction of or attempted infliction of serious bodily injury or death; previous
conviction of a state or federal offense involving manufacture, distribution, importation or
possession of a controlled substance for which a sentence of imprisonment for five years or
more was authorized; the defendant’s use of a firearm in the commission of the offense or in
furtherance of a continuing criminal enterprise, or the defendant’s having knowingly directed,
advised, authorized or assisted another to use a firearm to threaten, intimidate, assault or
injure a person; the defendant directly distributed controlled substances to a person under age
21 during the commission of the offense or during a continuing criminal enterprise of which
the offense was a part; the defendant directly used minors in drug trafficking during the
offense or during a continuing criminal enterprise of which the offense was a part; or the
defendant directly distributed controlled substances near schools during the offense or during
a continuing criminal enterprise of which the offense was a part; or the offense involved the
importation, manufacture, or distribution of a controlled substance mixed with a potentially
lethal adulterant, where the defendant was aware of the presence of the adulterant.
2518 U.S.C. § 3593(b).
26P.L. 104-132, Sec. 728, added a new factor to the list of those which can be considered as
aggravating factors in Federal death penalty cases. The new factor is that "[t]he defendant
intentionally killed or attempted to kill more than one person in a single criminal episode." 18
(continued...)

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beyond a reasonable doubt, while the defendant must prove mitigating factors by a
preponderance of the information.27 Where the hearing is before a jury, aggravating
factors must be found unanimously. Special findings as to mitigating factors may be
made by one or more members of the jury.28 If no aggravating factors are found, the
court must impose a sentence other than death.29
The jury must be instructed that its capital sentencing decision must not involve
any consideration of the race, color, religious beliefs, national origin, or gender of the
defendant or of any victim. Each juror must certify that these considerations were not
involved in his or her individual decision and that the juror would have made the same
sentencing recommendation regardless of the race, color, religious beliefs, national
origin, or sex of the defendant or of any victim.30
No one may be sentenced to death for an offense committed while under the age
of 18.31 Nor can a death sentence be carried out upon a pregnant woman,32 a person
who is mentally retarded, or who, because of a mental disability, lacks the capacity to
understand the death penalty and the reason it was imposed.33 Finally, a death penalty
may not be imposed under these death penalty provisions upon a person subject to the
criminal jurisdiction of an Indian tribal government for an offense which occurred
within Indian country and for which federal jurisdiction is based “solely upon Indian
country,” unless the tribe's governing body has elected to have the new capital
sentencing procedures in 18 U.S.C. ch. 228, §§ 3591-3598, applicable to the land and
persons subject to its criminal jurisdiction.34

The law provides for mandatory review of a death sentence upon timely notice
filed. The court of appeals will reverse and remand for resentencing upon a finding
that the sentence was the product of prejudice or passion, that the evidence does not
support the finding of the existence of an aggravating factor, or that legal error
requiring reversal exists.35
Once appeals are exhausted, an execution is to be conducted according to the
laws of the state in which the sentence is imposed. If the laws of that state do not
provide for implementation of a death sentence, the court will designate another state
26(...continued)
U.S.C. § 3592(c)(16).
2718 U.S.C. § 3593(c).
2818 U.S.C. § 3593(d).
2918 U.S.C. § 3593(e).
3018 U.S.C. § 3593(f).
3118 U.S.C. § 3591(b).
3218 U.S.C. § 3596(b).
3318 U.S.C. § 3596(c).
3418 U.S.C. § 3598.
3518 U.S.C. § 3595.

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which does have such laws, and the execution will be carried out in the manner
prescribed by the latter state's laws.36 State or local facilities may be used for
execution. The United States marshal charged with supervising the implementation
of the death sentence may also use the services of state or local officials or of a person
such officials employ for that purpose. However, neither federal nor state employees
may be required to participate in a capital prosecution or execution.37
3618 U.S.C. § 3596(a).
3718 U.S.C. § 3597.

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