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Federal Capital Offenses:
An Abridged Overview of
Substantive and Procedural Law
Charles Doyle
Senior Specialist in American Public Law
November 18, 2014
Congressional Research Service
7-5700
www.crs.gov
R42096
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Federal Capital Offenses: An Abridged Overview of Substantive and Procedural Law
Summary
Murder is a federal capital offense if committed in any of more than 50 jurisdictional settings.
The Constitution defines the circumstances under which the death penalty may be considered a
sentencing option. With an eye to those constitutional boundaries, the Federal Death Penalty Act
and related statutory provisions govern the procedures under which the death penalty is imposed.
Some defendants are ineligible for the death penalty regardless of the crimes with which they are
accused. Children and those incompetent to stand trial may not face the death penalty; pregnant
women and the mentally retarded may not be executed. There is no statute of limitations for
murder, and the time constraints imposed by the due process and speedy trial clauses of the
Constitution are rarely an impediment to prosecution.
The decision to seek or forgo the death penalty in a federal capital case must be weighed by the
Justice Department’s Capital Review Committee and approved by the Attorney General.
Defendants convicted of murder are death-eligible only if they are found at a separate sentencing
hearing to have acted with life-threatening intent. Among those who have, capital punishment
may be imposed only if the sentencing jury unanimously concludes that the aggravating
circumstances that surround the murder and the defendant outweigh the mitigating circumstances
to an extent that justifies execution.
The Federal Death Penalty Act provides several specific aggravating factors, such as murder of a
law enforcement officer or multiple murders committed at the same time. It also permits
consideration of any relevant “non-statutory aggravating factors.” Impact on the victim’s family
and future dangerousness of the defendant are perhaps the most commonly invoked non-statutory
aggravating factors. The jury must agree on the existence of at least one of the statutory
aggravating factors if the defendant is to be sentenced to death.
The Federal Death Penalty Act permits consideration of any relevant mitigating factor, and
identifies a few, such as the absence of prior criminal record or the fact that a co-defendant,
equally or more culpable, has escaped with a lesser sentence.
The Federal Death Penalty Act recognizes other capital offenses that do not necessarily involve
murder: treason, espionage, large-scale drug trafficking, and attempted murder to obstruct a drug
kingpin investigation. The constitutional standing of these is less certain or at least different.
This is an abridged version of CRS Report R42095, Federal Capital Offenses: An Overview of
Substantive and Procedural Law, by Charles Doyle, without the footnotes, appendix, quotation
marks, or citations to authority found in the longer version.
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Federal Capital Offenses: An Abridged Overview of Substantive and Procedural Law
Contents
Introduction ...................................................................................................................................... 1
Constitutional Considerations .......................................................................................................... 1
Existing Federal Law ....................................................................................................................... 2
Contacts
Author Contact Information............................................................................................................. 7
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Federal Capital Offenses: An Abridged Overview of Substantive and Procedural Law
Introduction
Murder, committed under any of more than 50 jurisdictional circumstances, is a federal capital
offense. So are treason, espionage, and certain drug kingpin offenses. The Federal Death Penalty
Act and related provisions establish the procedure that must be followed before a defendant
convicted of a federal capital offense may be executed. This is an overview of the law in the area.
Constitutional Considerations
The Federal Death Penalty Act reflects the constitutional boundaries identified in Furman and
subsequent related Supreme Court decisions. The opinion for the Court in Furman v. Georgia
runs less than a page. It simply states: “The Court holds that the imposition and carrying out of
the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments.” Furman drew two responses. Some states sought to remedy
arbitrary imposition of the death penalty by making capital punishment mandatory. Some states
and Congress narrowed the category of cases in which the death penalty might be a sentencing
option and crafted procedures designed to guide jury discretion in capital cases in order to
equitably reduce the risk of random imposition. The Court in Woodson rejected the first approach,
and in Gregg endorsed the second.
The Court has subsequently noted that Furman and Gregg “establish that a ... capital sentencing
system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to
render a reasoned, individualized sentencing determination based on a death-eligible defendant’s
record, personal characteristics, and the circumstances of his crime.” With respect to eligibility
for the death penalty, the Court declared “that capital punishment must ‘be limited to those
offenders who commit a narrow category of the most serious crimes and whose extreme
culpability makes them the most deserving of execution.’” “Applying this principle, [the Court]
held in Roper and Atkins that the execution of juveniles and mentally retarded persons are
punishments violative of the Eighth Amendment because the offender had a diminished personal
responsibility for the crime.”
Moreover, the Eighth Amendment cannot accept imposition of the death penalty where it is
disproportionate to the crime itself as, at least in some instances, “where the crime did not result,
or was not intended to result, in death of the victim. In Coker, for instance, the Court held it
would be unconstitutional to execute an offender who had raped an adult woman.... And in
Enmund, the Court overturned the capital sentence of a defendant who aided and abetted a
robbery during which a murder was committed but did not himself kill, attempt to kill, or intend
that a killing would take place. On the other hand, in Tison, the Court allowed the defendants’
death sentences to stand where they did not themselves kill the victims but their involvement in
the events leading up to the murders was active, recklessly indifferent, and substantial.”
Imposition of the death penalty as punishment for a particular crime will be considered cruel and
unusual when it is contrary to the “evolving standards of decency that mark the progress of
maturing society.” Those standards find expression in legislative enactments, prosecution
practices, jury performance, and execution records, viewed in light of “the Court’s own
understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.”
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Once a defendant has been found to be a member of a capital punishment eligible class, the
question becomes whether he is among that limited number within that class for whom the death
penalty is an appropriate punishment. The Court, after Gregg, found acceptable sentencing
schemes that reserved capital punishment for those cases in which the jury’s consideration
involved one or more aggravating factors and any mitigating factors. If an aggravating factor is
not already required for eligibility, one must be found in the course of the individualized selection
assessment. Aggravating factors must satisfy three requirements. “First the circumstance may not
apply to every defendant convicted of the murder; it must apply only to a subclass of defendants
convicted of murder. Second, the aggravating circumstance may not be constitutionally vague.”
Third, the aggravating circumstance may not be statutorily or constitutionally impermissible or
irrelevant.
As for mitigating evidence, evidence must be received and considered “if the sentencer could
reasonably find that it warrants a sentence less than death.” The Constitution insists “that the jury
be able to consider and give effect to a capital defendant’s relevant mitigating evidence....
[V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may
introduce concerning his own circumstances.”
The Eighth Amendment also condemns execution in a cruel and unusual manner. It proscribes
any method of execution which presents an “objectively intolerable risk” that the method is “sure
or very likely to cause serious illness and needless suffering.” The federal and state capital
punishment statutes all require, or at least permit, execution by lethal injunction. In Baze, the
Court rejected an Eighth Amendment challenge which failed to show that the lethal injunction
procedure at issue was sure or very likely to cause needless suffering.
Existing Federal Law
Existing federal law affords capital cases special treatment. There is no statute of limitations for
capital offenses, but there is a preference for the trial of capital cases in the county in which they
occur. The Attorney General must ultimately approve the decision to seek the death penalty in any
given case. Defendants in capital cases are entitled to two attorneys, one of whom “shall be
learned in the law applicable to capital cases.” 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 Furman/Gregg-inspired sentencing
procedures set forth in the Federal Death Penalty Act come into play. The death penalty may be
imposed under its provisions only after (1) the defendant is convicted of a capital offense; (2) in
the case of murder, the defendant has been found to have acted with one of the required levels of
intent; (3) the prosecution proves the existence of one or more of the statutory aggravating
factors; and (4) the imbalance between the established aggravating factors and any mitigating
factors justifies imposition of the death penalty.
Statute of Limitations and Related Matters: “An indictment for any offense punishable by
death may be found at any time without limitation.” This provision applies when the offense is
statutorily punishable by death, even if the prosecution elects not to seek the death penalty or the
jury fails to recommend it.
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Prosecutorial options are somewhat more limited than this statement might imply. In rare cases,
due process may preclude a stale prosecution even in the absence of a statute of limitations. The
due process delay proscription only applies where the delay is the product of prosecutorial bad
faith prejudicial to the defendant: “[A]pplicable statutes of limitations protect against the
prosecution’s bringing stale criminal charges against any defendant, and, beyond that protection,
the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the
statute of limitations, if the defendant can prove that the Government’s delay in bringing the
indictment was a deliberate device to gain an advantage over him and that it caused him actual
prejudice in presenting his defense.”
Moreover, the statute of limitations only marks time from the commission of the crime to
accusation, in the form of either arrest or indictment. Deadlines between accusation and trial are
the province of the constitutional and statutory speedy trial provisions. Here too, the limits are not
particularly confining in most instances. “The Sixth Amendment ... Speedy Trial Clause is written
with such breadth that, taken literally, it would forbid the government to delay the trial of an
‘accused’ for any reason at all. [The] cases, however, have qualified the literal sweep of the
provision by specifically recognizing the relevance of four separate enquiries: whether delay
before trial was uncommonly long, whether the government or the criminal defendant is more to
blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and
whether he suffered prejudice as the delay’s result.” The Speedy Trial Act provides a more
detailed time table, but one that comes with a number of extensions and exclusions. All in all,
time before trial is rarely a matter of the essence in a capital case.
Justice Department Review: The decision to seek or not to seek the death penalty is ultimately
that of the Attorney General. Under the procedure established in the United States Attorneys
Manual, the United States Attorney where the trial is to occur files a recommendation with the
Justice Department, ordinarily after conferring with the victim’s family and in the case of a
recommendation to seek the death penalty with defense counsel. The recommendation is referred
to the Capital Review Committee. The Committee’s task is to ensure that the decision to seek the
death penalty reflects fairness, national consistency, statutory compliance, and law enforcement
objectives. It makes its recommendation to the Attorney General through the Deputy Attorney
General.
Appointment of Counsel: Capital defendants are entitled upon request 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. The federal appellate courts are divided over whether a
lower court’s erroneous refusal to appoint a second attorney in a capital case is presumptively
prejudicial or if the defendant must still show that the error was prejudicial. The trial court may
authorize the payment of attorneys, investigators, experts, and other professional services
reasonably necessary for the defense of indigent defendants charged with a capital offense. This
does not entitle the accused to the attorney or expert of his choice or to a jury-selection expert.
Moreover, removal of the defendant’s attorney in a compensation dispute is not appealable until
after the trial.
Pre-trial Notice of Intent to Seek the Death Penalty: Section 3593 obligates the prosecutor to
advise the defendant and the court, “a reasonable time before trial” or before the acceptance of a
plea, of the government’s intention to seek the death penalty.
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Capital Juries: The Sixth Amendment affords the accused the right to trial before an impartial
jury. The Federal Death Penalty Act affords the defendant convicted of a capital offense the right
to a jury for sentencing purposes. The accused may waive his right to a jury trial, either by
pleading guilty or by agreeing to a trial by the court without a jury. A convicted defendant may
also waive his right to a jury during the capital sentencing phase. The prosecution, on the other
hand, enjoys comparable prerogatives. It may insist upon a jury if there is to be a trial. It must
also agree if the capital sentencing hearing is to be held before the court without a jury. Moreover,
it too is entitled to an impartial jury. Thus, the Sixth Amendment permits the exclusion of those
potential jurors who assert that they will not vote to impose the death penalty under any
circumstances.
In most felony cases, the accused may peremptorily reject up to 10 potential jurors without regard
to cause, and the prosecution may peremptorily reject up to 6. In a capital case, each side has 20
peremptory challenges. In the case of multiple defendants, the court may, but need not, allow the
defendants additional challenges and may require they agree upon their challenges.
Death-Ineligible Offenders: Whether by statute, by constitutional command, or both, some
offenders may not be exposed to a federal trial in which the prosecution seeks the death penalty
for a federal capital offense; some may not be executed. A woman may not be executed while she
is pregnant. Neither may a person who is mentally retarded be executed nor a person who lacks
the mental capacity to understand that he is being executed and why. The Federal Death Penalty
Act may not be employed to charge a juvenile for a capital offense committed when the accused
was under 18 years of age. An accused who is incompetent to stand trial may not be tried for a
capital offense or any other crime.
Death-Eligible Offenses: Federal law permits imposition of the death penalty only where the
defendant has been convicted of a death-eligible crime, where the aggravating and mitigating
factors present in a particular case justify imposition of the penalty, and in a murder case where
the defendant has been found to have the requisite intent for imposition of capital punishment.
Federal law divides death-eligible offenses into three categories. The one group consists of
homicide offenses, another of espionage and treason; and a third of drug offenses that do not
involve a killing.
Capital homicide offenses: Murder is a capital offense under more than 50 federal statutes. Some
outlaw murder as such under various jurisdictional circumstances. Most, however, make some
other offense, such as carjacking, a capital offense, if death results from its commission. A
defendant convicted of a capital offense may be executed, however, only if it is shown beyond
doubt at a subsequent sentencing hearing that one of the statutory aggravating circumstances
exists, and that he either (A) killed the victim intentionally; (B) intentionally inflicted serious
injuries that resulted in the victim’s death; (C) intentionally participated in an act, aware that it
would expose a victim to life-threatening force, and the victim died as a consequence; or (D)
intentionally engaged in an act of violence with reckless disregard of its life-threatening nature
and the victim died as a consequence. The court will sometimes permit a separate preliminary
jury proceeding to determine the existence of the requisite intent. Some courts have upheld the
submission of all four mental states to the jury. Even in the presence of the necessary intent and at
least one of the statutory aggravating factors, a defendant may only be sentenced to death, if the
jury unanimously concludes that on balancing the aggravating and mitigating factors imposition
of the death penalty is justified.
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Subsection 3592(c) of the Federal Death Penalty Act lists 16 statutory aggravating factors: “(1)
Death during commission of another crime. (2) Previous conviction of violent felony involving
firearm. (3) Previous conviction of offense for which a sentence of death or life imprisonment
was authorized. (4) Previous conviction of other serious offenses. (5) Grave risk of death to
additional persons. (6) Heinous, cruel, or depraved manner of committing offense. (7)
Procurement of offense by payment. (8) Pecuniary gain. (9) Substantial planning and
premeditation. (10) Prior conviction for two felony drug offenses. (11) Vulnerability of victim.
(12) Conviction for serious federal drug offenses. (13) Continuing criminal enterprise involving
drug sales to minors. (14) High public officials. (15) Prior conviction of sexual assault or child
molestation. (16) Multiple killings or attempted killings.”
The jury may also consider any non-statutory aggravating factors which it finds beyond a
reasonable doubt to exist. Justice Department approval forms once identified five possible non-
statutory aggravating factors: (1) Participation in additional uncharged murders, attempted
murders, or other serious acts of violence. (2) Obstruction of justice. The victim was killed in an
effort by the defendant to obstruct justice, tamper with a witness or juror, or in retaliation for
cooperating with authorities. (3) Contemporaneous convictions for multiple murders, attempted
murders, or other serious acts of violence. (4) Future dangerousness to the lives and safety of
other persons, as evidenced by one or more of the following: a. specific threats of violence, b.
continuing pattern of violence, c. specific admissions of violence, d. low rehabilitative potential,
e. lack of remorse, f. mental evaluation, and/or g. custody classification (escape risk). (5) Victim
impact evidence concerning the effect of the offense on the victim and the victim’s family as
evidenced by oral testimony or a victim impact statement. Those specific examples have since
been replaced by a more generic instruction.
The Constitution and the Federal Death Penalty Act favor the introduction of mitigating evidence
during the capital sentencing proceeding. The Supreme Court declared some time ago that “the
Eighth Amendment ... require[s] that the sentencer ... not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death.” The Federal
Death Penalty Act directs the finder of fact to consider any mitigating factor and permits the
defendant to present any information relevant to a mitigating factor. This gives the defendant
considerable latitude. Yet his options are not boundless. The evidence he offers must be relevant
and not invite confusion or unfair prejudice. Moreover, the prosecutor may question the weight
that a mitigating factor warrants.
Subsection 3592(b) of the Federal Death Penalty Act describes seven statutory factors and adds a
catch-all that encompasses “other factors in the defendant’s background, record, or character or
any other circumstance of the offense that mitigate against imposition of the death sentence.” The
other seven cover: (1) Impaired capacity. (2) Duress. (3) Minor participation. (4) Equally
culpable, disparate punished defendants. (5) No prior criminal record. (6) Disturbance. (7)
Victim’s consent.
Treason: Treason is punishable by death or imprisonment for not less than five years and a fine of
not less than $10,000. The death penalty for treason may only be imposed upon conviction, a
finding of one or more of the statutory aggravating factors, and a determination that the
aggravating factors outweigh any mitigating factors. The mitigating factors in a treason case are
the same as those in a murder case, seven statutory factors and one catch-all: impaired capacity;
duress; minor participation; equally culpable but less severely punished defendants; absence of
prior criminal record; mental disturbance; victim consent; and any other mitigating factor relating
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to the offender or the offense. Different aggravating factors, however, apply in treason and
espionage cases. The aggravating factors are four: prior treason or espionage conviction; grave
risk to national security; grave risk of death; and “any other aggravating factor.”
Commentators have questioned whether the Constitution allows imposition of the death penalty
in cases involving treason, espionage, or murder-less drug offenses, since in such cases the statute
on its face authorizes the death penalty without requiring the death of a victim. The Court in
Kennedy specifically distinguished this class of crimes from those involving violence against
individuals. Each of the crimes presents considerations of its own and might under some
circumstances survive scrutiny even under the individual violence standards. Nevertheless, it
seems likely that any court confronting the issue would at a minimum consider the Kennedy
standards (indicia of “the evolving standards of decency that mark the progress of a maturing
society” read in conjunction with the Court’s precedents).
Under the Federal Death Penalty Act, the death penalty does not follow inevitably from a treason
conviction. Capital punishment is confined to those cases marked by one of the three aggravating
factors and by the absence of countervailing mitigating factors. The national security factor might
be considered a bit too open ended, but that defect, if it is one, might be cured by jury instruction
or appellate construction. Of the three—treason, espionage, and murder-less drug kingpin
offenses—commentators seem to consider treason the most likely to survive constitutional
scrutiny.
Espionage: Espionage is a death-eligible offense under any of three conditions. First, it is a
capital offense to disclose national defense information with the intent to injure the United States
or aid a foreign government, if the disclosure results in the death of an American agent. Second, it
is a capital offense to disclose information relating to major weapons systems or elements of U.S.
defense strategy with the intent to injure the United States or aid a foreign government. Third, it is
a capital offense to communicate national defense information to the enemy in time of war. The
aggravating and mitigating factors are the same as those used in treason cases.
Drug Kingpin (Continuing Criminal Enterprise): Murder committed in furtherance of a drug
kingpin (continuing criminal enterprise) offense is a capital crime. It is one of the many federal
homicide offenses discussed earlier. Certain drug kingpin offenses, however, are capital offenses
even though they do not involve a murder. A continuing criminal enterprise is one in which five
or more individuals generate substantial income from drug trafficking. The leader of such an
enterprise is subject to a mandatory term of life imprisonment, if the enterprise either realizes
more than $10 million in gross receipts a year or traffics in more than 300 times of the quantity of
controlled substances necessary to trigger the penalties for trafficking in heroin,
methamphetamines, or other similarly categorized controlled substances under 21 U.S.C.
841(b)(1)(B). A drug kingpin violation is a capital offense, if it involves twice the gross receipts
or twice the controlled substances distributed necessary to trigger the life sentence, or if it
involves the use of attempted murder to obstruct an investigation or prosecution of the offense.
Presenting and Weighing the Factors: The Federal Death Penalty Act establishes the same capital
sentencing hearing procedures for all capital offenses—murder, treason, espionage, or murder-
less drug kingpin offenses. The hearing is conducted only after the defendant has been found
guilty of a death-eligible offense. It is held before a jury, unless the parties agree otherwise. The
prosecution and the defense are entitled to offer and rebut relevant evidence in aggravation and
mitigation without regard to the normal rules of evidence in criminal proceedings. As noted
earlier, there is some question whether the prosecutors’ arguments or rebuttal concerning the
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defendant’s lack of remorse constitute a violation of the defendant’s right not to testify. Some
also question whether prosecutors are free to argue that the death penalty is made more
appropriate by a defendant’s insistence of his right to a trial.
The prosecution bears the burden of establishing the existence of aggravating factors and the
defendant of establishing mitigating factors. The burdens, however, are not even. The prosecution
must show proof beyond a reasonable doubt; the defendant a less demanding proof by a
preponderance of the evidence. The finding on aggravating circumstances must be unanimous;
the finding on mitigating circumstances need only be espoused by a single juror.
Capital punishment may only be recommended and imposed, if the jurors all agree that the
aggravating factors sufficiently outweigh the mitigating factors to an extent that justifies
imposition of the death penalty. If they find the death penalty justified, they must recommend it.
If they recommend the death penalty, the court must impose it. If they cannot agree, the defendant
must be sentenced to a term of imprisonment, most often to life imprisonment.
Appellate Review: A defendant sentenced to death is entitled to review by the court of appeals.
The defendant is entitled to relief if the court determines that (1) the sentence was the product of
passion, prejudice, or other arbitrary factor; (2) the finding of at least one statutory aggravating
factor cannot be supported by the record; or (3) there exists some other legal error that requires
the sentence to be overturned. Convictions and sentences imposed in a capital case are subject to
normal appellate and collateral review as well.
Execution of Sentence: Once all opportunities for appeal and collateral review have been
exhausted, a defendant sentenced to death is executed pursuant to the laws of the state where the
sentence was imposed, or if necessary, pursuant to the laws of a state designated by the court. The
United States Marshal has the authority to use state or local facilities and personnel to carry out
the execution. The regulations permit 6 witnesses for the defendant and 18 public witnesses to
attend the execution. Video and audio recording are forbidden.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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