Federal Capital Offenses: An Overview of Substantive and Procedural Law

Federal Capital Offenses: An Overview of
July 5, 2023
Substantive and Procedural Law
Charles Doyle
Murder is a federal capital offense if committed in any of more than 50 jurisdictional
Senior Specialist in
settings. The Constitution defines the circumstances under which the death penalty may
American Public Law
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 may be 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 individuals
with intellectual disability 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.

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Contents
Background ..................................................................................................................................... 1
Post-Furman Jurisprudence ............................................................................................................. 2
Existing Federal Law ....................................................................................................................... 5
Statute of Limitations and Related Matters ............................................................................... 6
Venue and Vicinage ................................................................................................................... 7
Justice Department Review ....................................................................................................... 8
Appointment of Counsel ........................................................................................................... 8
Pre-trial Notice of Intent to Seek the Death Penalty ................................................................. 9
Capital Juries ........................................................................................................................... 10
Death-Ineligible Offenders ....................................................................................................... 11
Death-Eligible Offenses .......................................................................................................... 12
Capital Homicide Offenses ............................................................................................... 13
Treason .............................................................................................................................. 27
Espionage .......................................................................................................................... 31
Drug Kingpin (Continuing Criminal Enterprise) .............................................................. 34
Presenting and Weighing the Factors ...................................................................................... 36
Appellate Review .................................................................................................................... 38
Execution of Sentence ............................................................................................................. 38
Federal Crimes Punishable by Death (Citations) .................................................................... 39

Contacts
Author Information ........................................................................................................................ 41

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Federal Capital Offenses: An Overview of Substantive and Procedural Law

urder, committed under any of more than 50 jurisdictional circumstances, is a federal
capital offense. 1 So are treason, espionage, and certain drug kingpin offenses. The
M 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.
Background
The death penalty has long been a sentencing option in this country. Capital punishment was a
feature of English law that the early colonists brought with them.2 Once here, they often
supplemented English law with provisions of their own. Although law among the colonies was
hardly uniform beyond its English foundations, murder, rape, grand larceny, and various other
property crimes appear to have been among the crimes punishable by death in each of the
colonies.3 In fact, “[a]t the time the Eighth Amendment was ratified, capital punishment was a
common sanction in every State.”4
When the first Congress convened, it made federal capital offenses of murder within federal
enclaves, treason, and piracy, as well as forgery and counterfeiting of federal certificates and
public securities.5 By the time of the Revised Statutes of 1878, the list of federal capital offenses
included treason; and murder, arson, or rape in U.S. special maritime and territorial jurisdiction;
piracy; insurance fraud involving the destruction of a vessel at sea; and the rescue of an individual
under sentence of death.6

1 The terms “death penalty” and “capital punishment” are used interchangeably throughout this report. This report is
available in an abridged form as CRS Report R42096, Federal Capital Offenses: An Abridged Overview of Substantive
and Procedural Law
, by Charles Doyle, without the footnotes, attributions of authority, or quotations found here.
2 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 9 (1769) (transliteration provided) (quoting 1
MATTHEW HALE, PLEAS OF THE CROWN (at 13 in the 1778 ed.) (“The practice of inflicting capital punishments, for
offences of human institution, is thus justified by that great and good man, sir Matthew Hale: ‘when offences grow
enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the
great insecurity and danger to the kingdom or its inhabitants, severe punishment and even death itself is necessary to be
annexed to laws in many cases by the prudence of lawgivers.’”).
3 E.g., 1 LAWS OF THE COMMONWEALTH OF PENNSYLVANIA 1700–1781, 135–37 (1782) (murder, rape, highway robbery,
arson, burglary); CHARTERS AND GENERAL LAWS OF THE COLONY AND PROVINCE OF MASSACHUSETTS BAY, 56–61
(1814) (murder, arson, treason, rape, robbery, burglary, witchcraft); see also HUGH F. RANKIN, CRIMINAL TRIAL
PROCEEDINGS IN THE GENERAL COURT OF COLONIAL VIRGINIA, 129, 149, 159, 167, 204, 219–22 (1965) (noting that
capital offenses in colonial Virginia included arson, burglary, robbery, horse stealing, murder, treason and rape); JULIUS
GOEBEL JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK, 95 (1970) (“In the main, the
common law rules regarding what were capital offenses were observed . . . .”).
4 Gregg v. Georgia, 428 U.S. 153, 177 (1976).
5 Act of April 30, 1790, §§ 1, 3, 8, 14, 15, 1 STAT. 112-115 (1790).
6 REV. STAT. §§ 5323, 5331, 5339, 5345, 5365, 5366, 5368, 5369, 5372, 5385, 5387, 5400 (1878).
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When the Supreme Court announced its decision in Furman v. Georgia,7 the number of federal
capital murder offenses had increased,8 but the inventory of capital offenses that did not include
death as an element had been reduced to rape,9 treason,10 and espionage.11
After Furman, where the Supreme Court found unconstitutional imposition of capital punishment
pursuant to procedures then required under state and federal law, Congress made procedural
adjustments to revive the death penalty as a sentencing option in federal cases, first in air piracy
cases,12 then in drug kingpin homicide cases,13 and finally as a general matter in the Federal
Death Penalty Act.14 Now federal capital offenses are confined to espionage,15 treason,16 certain
drug kingpin offenses (that do not involve murder),17 and murder under various jurisdictional
circumstances.18
Post-Furman Jurisprudence
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 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.”19 Division among the members of the Court accounted for the brevity.
Each of the Justices wrote either a concurring or dissenting opinion. Three Justices thought
capital punishment was per se cruel and unusual.20 Two others felt that the then existing
sentencing procedures failed to equitably separate the wheat from the chaff: the system did not
ensure imposition of the death penalty, the most severe punishment, uniformly in the most

7 Furman v. Georgia, 408 U.S. 238, 239–40 (1972).
8 E.g., 18 U.S.C §§ 34 (1970) (relating to the destruction of aircraft or motor carriers), 351(a) (1970) (relating to
congressional assassination), 844(d) (1970) (relating to explosives offenses), 1111 (1970) (in U.S. special maritime and
territorial jurisdiction), 1114 (1970) (relating to federal law enforcement officers), 1201(a) (1970) (relating to
kidnapping), 1751 (1970) (relating to presidential assassination); 49 U.S.C. § 1472(i) (1970) (relating to air piracy).
9 18 U.S.C. § 2031 (1970).
10 Id. § 2381.
11 Id. § 794.
12 Federal Aviation Act of 1958 Amendments, Pub. L. No 93-366, § 104, 88 STAT. 409 (1974).
13 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7001, 102 STAT. 4387 (1988).
14 Federal Death Penalty Act, Pub. L. No. 103-322, §§ 60001-60026, 108 STAT. 1959 (1994). Procedures under air
piracy and drug kingpin murder provisions, subsequently replaced by the Federal Death Penalty Act, are beyond the
scope of this report.
15 18 U.S.C. § 794.
16 Id. § 2381.
17 Id. § 3591(b). As discussed below, Furman and the cases that followed may call into question the constitutionality of
capital punishment as a sentencing option for any offense that does not involve a murder.
18 A list of federal capital offenses is appended. Capital offenses under the various territorial codes, the Uniform Code
of Military Justice, and the Military Commissions Act are beyond the scope of this report.
19 Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (here and hereafter internal citations are routinely omitted). The
Court considered Furman together with two capital rape cases, one from Georgia, Jackson v. Georgia, and the other
from Texas, Branch v. Texas. Its opinion applied to all three, Furman, 408 U.S. at 238.
20 Id. at 240 (Douglas, J., concurring) (“I vote to vacate each judgment, believing that the exaction of the death penalty
does violate the Eighth and Fourteenth Amendments.”); id. at 305 (Brennan, J. concurring) (“Today death is a unique
and unusually severe punishment. When examined by the principles applicable under the Cruel and Unusual
Punishments Clause, death stands condemned as fatally offense to human dignity.”); id. at 370 (Marshall, J.,
concurring) (“To arrive at the conclusion that the death penalty violates the Eighth Amendment, we have had to engage
in a long and tedious journey.”).
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deserving cases and only in the most deserving cases.21 The remaining four Justices dissented on
three grounds. Like two members of the majority, they could not say that the death penalty was
per se cruel and unusual.22 They felt the decision was incompatible with appropriate judicial
constraint and the deference due the legislative prerogatives.23 And, they argued that the unfair,
arbitrary, capricious standard advanced by three members of the majority was a due process
standard which the Court the year before had found posed no impediment to implementation of
state capital sentencing statutes.24
Furman drew two responses. Some states sought to remedy arbitrary imposition of the death
penalty by making capital punishment mandatory. Other 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 v. North Carolina rejected the first approach25 and in Gregg v.
Georgia
endorsed the second.26
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

21 Id. at 309–10 (Stewart, J., concurring) (“These death sentences are cruel and unusual in the same way that being
struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many
just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the
sentence of death has in fact been imposed.”); id. at 313 (White, J., concurring) (“[T]he death penalty is exacted with
greater infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few
cases in which it is imposed from the many cases in which it is not.”); see also id. at 364, 365–66 (Marshall, J.,
concurring) (“[C]apital punishment is imposed discriminatorily against certain identifiable classes of people. . . . [T]he
burden of capital punishment falls upon the poor, the ignorant, and the under-privileged members of society.”).
22 Id. at 429, 442 (Powell, J., with Burger, C.J., Blackmun and Rehnquist, JJ., dissenting) (“The [Eighth] Amendment
must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. . . . One
must conclude, contrary to petitioners’ submission, that the indicators most likely to reflect the public’s view—
legislative bodies, state referenda and the juries which have the actual responsibility—do not support the contention
that evolving standards of decency require total abolition of capital punishment.”).
23 Id. at 465–66 (Rehnquist, J., with Burger, Ch.J., Blackmun and Powell, JJ., dissenting) (“The Court’s judgments
today strike down a penalty that our Nation’s legislators have thought necessary since our country was founded. My
Brothers Douglas, Brennan, and Marshall would at one fell swoop invalidate laws enacted by Congress and 40 of the
50 states legislatures and would consign to the limbo of unconstitutionality under a single rubric penalties for offenses
as murder, piracy, mutiny . . . Whatever its precise rationale, today’s holding necessarily brings into sharp relief the
fundamental question of the role of judicial review in a democratic society . . . The very nature of judicial review ...
makes the courts the least subject to Madisonian check in the event that they shall, for the best of motives, expand
judicial authority beyond the limits contemplated by the framers. It is for this reason that judicial self-restraint is surely
an implied, if not an expressed, condition of the grant of authority of judicial review. The court’s holding in these cases
has been reached, I believe, in complete disregard of that implied condition.”).
24 Id. at 398–99 (Burger, Ch.J., with Blackmun, Powell, and Rehnquist, JJ., dissenting) (“The decisive grievance of the
[Stewart and White] opinions—not translated into Eighth Amendment terms—is that the present system of
discretionary sentencing in capital cases has failed to produce evenhanded justice; the problem is not that too few have
been sentenced to die, but that the selection process has followed no rational pattern. This claim of arbitrariness is not
only lacking in empirical support, but also it manifestly fails to establish that the death penalty is a ‘cruel and unusual’
punishment. The Eighth Amendment was included in the Bill of Rights to assure that certain types of punishments
would never be imposed, not to channelize the sentencing process. The approach of these concurring opinions has no
antecedent in the Eighth Amendment cases. It is essentially and exclusively a procedural due process argument. This
ground of decision is plainly foreclosed as well as misplaced. Only one year ago, in McGautha v. California, the Court
upheld the prevailing system of sentencing in capital cases. The Court concluded: ‘In light of history, experience, and
the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled
discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.’
402 U.S., at 207.”).
25 428 U.S. 280, 305 (1976).
26 428 U.S. 153, 207 (1976).
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render a reasoned, individualized sentencing determination based on a death-eligible defendant’s
record, personal characteristics, and the circumstances of his crime.”27
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.’”28 “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.”29
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 [v. Georgia], for instance, the
Court held it would be unconstitutional to execute an offender who had raped an adult woman. . .
. And in Enmund [v. Florida], 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 [v. Arizona] and
elsewhere, the Court later explained, it 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.”30
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.”31 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.”32
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.33 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

27 Kansas v. Marsh, 548 U.S. 163, 173 (2006).
28 Kennedy v. Louisiana, 554 U.S. 407, 420 (2008).
29 Id. (citing Roper v. Simmons, 543 U.S. 551, 571–73 (2005), and Atkins v. Virginia, 536 U.S. 304, 318 (2002)).
30 Id. at 420-21 (citing Coker v. Georgia, 433 U.S. 584 (1977), Enmund v. Florida, 458 U.S. 782 (1982), and Tison v.
Arizona, 481 U.S. 137 (1987)).
31 Id. at 419 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
32 Id. at 421.
33 Brown v. Sanders, 546 U.S. 212, 216 (2006) (citing Furman v. Georgia, 3408 U.S. 238 (1972) and Tuilaepa v.
California, 512 U.S. 967, 971–72 (1994)) (Since Furman, “we have required States to limit the class of murderers to
which the death penalty may be applied. This narrowing requirement is usually met when the trier of fact finds at least
one statutorily defined eligibility factor at either the guilt or penalty phase. Once the narrowing requirement has been
satisfied, the sentencer is called upon to determine whether a defendant thus found eligible for the death penalty should
in fact receive it.”).
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constitutionally vague,”34 although the defect in a facially vague aggravating circumstance may
be cured by a clarifying jury instruction and binding appellate court construction.35 Third, the
aggravating circumstance may not be statutorily or constitutionally impermissible or irrelevant.36
As for mitigating evidence, evidence must be received and considered “if the sentencer could
reasonably find that it warrants a sentence less than death.”37 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.’”38
The Eighth Amendment also condemns execution in a cruel and unusual manner.39 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.”40 The federal and state capital
punishment statutes all require, or at least permit, execution by lethal injection.41 In Baze v. Rees,
the Court rejected an Eighth Amendment challenge which failed to show that the lethal injection
procedure at issue was sure or very likely to cause needless suffering.42
Existing Federal Law
Existing federal law affords capital cases special treatment. There is no statute of limitations for
capital offenses,43 but there is a preference for the trial of capital cases in the county in which they
occur.44 The Attorney General must ultimately approve the decision to seek the death penalty in

34 Tuilaepa, 512 U.S. at 972 (citing Arave v. Creech, 507 U.S. 463, 474 (1993) and Godfrey v. Georgia, 446 U.S. 420,
428 (1980)).
35 Bell v. Cone, 543 U.S. 447, 454 (2005)
36 Brown, 546 U.S. at 220 (“An invalidated sentencing factor (whether an eligibility factor or not) will render the
sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process
unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and
circumstances”).
37 Tennard v. Dretke, 542 U.S. 274, 285 (2004) (quoting McKoy v. North Carolina, 494 U.S. 433, 441 (1990)).
38 Tennard, 542 U.S. at 285 (quoting Boyde v. California, 494 U.S. 370, 377–78 (1990), and Payne Tennessee, 501
U.S. 808, 822 (1991)).
39 Baze v. Rees, 553 U.S. 35, 49–50 (2008).
40 Id. at 50.
41 ALA. CODE §15-18-82.1; ARIZ. REV. STAT. ANN. §13-757; ARK. CODE ANN. §5-4-617; CAL. PENAL CODE §3604;
COLO. REV. STAT. ANN. §18-1.3-1202; CONN. GEN. STAT. ANN. §54-100; DEL. CODE ANN. tit.11 §4209; FLA. STAT.
ANN. §922.105; GA. CODE §17-10-38; IDAHO CODE §19-2716; IND. CODE ANN. §35-38-6-1; KAN. STAT. ANN. §22-
4001; KY. REV. STAT. ANN. §431.220; LA. REV. STAT. ANN. §15:569; MISS. CODE ANN. §99-19-51; MO. ANN. STAT.
§546.720; MONT. CODE ANN. §46-19-103; NEB. REV. STAT. § 83-964; NEV. REV. STAT. §176.355; N.Y. CORR. LAW
§658; N.C. GEN. STAT. §15-188; OHIO REV. CODE ANN. §2949.22; OKLA. STAT. ANN. tit.22 §1014; ORE. REV. STAT.
ANN. §137.473; 61 PA. CONS. STAT. ANN. §4304; S.C. CODE ANN. §24-3-530; S.D. COD. LAWS §23A-27A-32; TENN.
CODE ANN. §40-23-114; TEX. CRIM. PRO. CODE ANN. Art. 43.14; UTAH CODE ANN. §77-18-5.5; WYO. STAT. §7-13-904;
cf. 18 U.S.C. § 3596(a), 28 C.F.R. §26.3(a)(4).
42 Baze, 553 U.S. at 41; see also Glossip v. Gross, 576 U.S. 863, 870, 871, 878 (2015) (“[A]nti-death-penalty
advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences....
Unable to acquire either sodium thiopental or pentobarbital, some States have turned to midazolam.... The challenge in
Baze failed.... Petitioners’ arguments here fail for similar reasons. First, petitioners have not proved that any risk posed
by midazolam is substantial when compared to known and available alternative methods of execution. Second, they
have failed to establish that the District Court committed clear error when it found that the use of midazolam will not
result in severe pain and suffering.”).
43 18 U.S.C. § 3281.
44 Id. § 3235.
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any given case.45 Defendants in capital cases are entitled to two attorneys, one of whom “shall be
learned in the law applicable to capital cases.”46 Defendants are entitled to notice when the
prosecution intends to seek the death penalty,47 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.48
Defendants and prosecutors each have 20 peremptory jury challenges in capital cases.49
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;50 (2) in
the case of murder, the defendant has been found to have acted with one of the required levels of
intent;51 (3) the prosecution proves the existence of one or more of the statutory aggravating
factors;52 and (4) the imbalance between the established aggravating factors and any mitigating
factors justifies imposition of the death penalty.53
Statute of Limitations and Related Matters
“An indictment for any offense punishable by death may be found at any time without
limitation.”54 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.55
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.56

45 U.S. Dep’t of Just., Just. Manual §§ 9–10.050 (Jan. 2023), 9-10.060 (Jan. 2020).
46 18 U.S.C. § 3005.
47 Id. § 3593(a).
48 Id. § 3432.
49 FED. R. CRIM. P. 24(b).
50 18 U.S.C. § 3591.
51 Id. § 3591(a)(2).
52 Id. §§ 3593(c), (d).
53 Id. § 3593(e).
54 Id. § 3281.
55 United States v. Guerrero, 813 F.3d 462, 466 (2d Cir. 2016); United States v. Gallaher, 624 F.3d 934, 940–41 (9th
Cir. 2010); United States v. Payne, 591 F.3d 46, 58–59 (2d Cir. 2010) (citing in accord, United States v. Ealy, 363 F.3d
292, 296–97 (4th Cir. 2004) and United States v. Edwards, 159 F.3d 1117, 1128 (8th Cir. 1998)); United States v.
DeLeon, 406 F. Supp. 3d 1129, 1170 (D.N.M. 2019).
56 United States v. Gouveia, 467 U.S. 180, 192 (1984) (citing, United States v. Lovasco, 431 U.S. 783, 788–90 (1977);
and United States v. Marion, 404 U.S. 307, 322–24 (1971)); cf. United States v. Jackson, 549 F.3d 963, 969 (5th Cir.
2008) (“ ... [T]he defendant bears the burden of proving that the pre-indictment delay caused ‘substantial, actual
prejudice’ and was ‘intentionally undertaken by the government for the purpose of gaining some tactical advantage
over the accused.’”).
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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. As the Supreme Court has observed:
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.57
The Speedy Trial Act58 provides a more detailed timetable, but one that comes with a number of
extensions and exclusions.59 All in all, pre-trial delay is rarely an issue in federal capital cases.
Venue and Vicinage
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,”60 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.”61
Capital cases should be tried in the county in which they occur, when possible,62 but this does not
require that the jury be drawn from the county where the crime occurred.63 Section 3236 directs
that federal murder and manslaughter cases be tried where the death-inflicting injury occurs
regardless of where the victim dies.64 Section 3237, on the other hand, permits multi-district
crimes to be tried where they are begun, continued, or completed and declares that offenses

57 Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)); United
States v. Keith, 61 F.4th 839, 852 (10th Cir. 2023); United States v. Robinson, 55 F.4th 390, 399 (4th Cir. 2022));
United States v. Ansari, 48 F.4th 393, 397 (5th Cir. 2022).
58 18 U.S.C. §§ 3161–3174.
59 E.g., id. §§ 3161(b),(h) (“(b) Any information or indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons
in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has
been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an
additional thirty days.... (h) The following periods of delay shall be excluded in computing the time within which an
information or an indictment must be filed, or in computing the time within which the trial of any such offense must
commence: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not
limited to - (A) delay resulting from any proceeding, including any examinations, to determine the mental competency
or physical capacity of the defendant; ... (H) delay reasonably attributable to any period, not to exceed thirty days,
during which any proceeding concerning the defendant is actually under advisement by the court.”).
60 U.S. CONST. art. III, § 2, cl. 3.
61 U.S. CONST. amend. VI.
62 “The trial of offenses punishable with death shall be had in the county where the offense was committed, where that
can be done without great inconvenience.” 18 U.S.C. § 3235.
63 United States v. Savage, 970 F.3d 217, 251 (3d Cir. 2020); United States v. Mills, 389 F. Supp.3d 528, 531 (E.D.
Mich. 2019).
64 “In all cases of murder or manslaughter, the offense shall be deemed to have been committed at the place where the
injury was inflicted, or the poison administered or other means employed which caused the death, without regard to the
place where the death occurs,” 18 U.S.C. § 3236; United States v. Reff, 479 F.3d 396, 401 (5th Cir. 2007).
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involving the use of the mails, transportation in interstate or foreign commerce, or importation
into the United States may be tried in any district from, through, or into which commerce, mail,
or imports travel.65
The limited available case law suggests that where the two sections are in conflict, multi-district
Section 3237 applies. That is, the specific murder-manslaughter instruction of Section 3236
applies only with regard to “unitary” murder offenses, such as murder by a federal prisoner; it
does not apply to “death resulting” cases, cases where murder is a sentencing element rather than
a substantive element of the offense, such as in cases of a violation of 18 U.S.C. § 924(c) (use of
a firearm during and relating to the commission of crime of violence), the sentence for which is
determined in part by whether death resulted from the commission of the offense.66
Justice Department Review
The decision to seek or not to seek the death penalty is ultimately that of the Attorney General.67
Under the procedure established in the United States Department of Justice’s Justice Manual
(JM),68 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 after inviting defense counsel to submit material.69 The
recommendation is referred to the Capital Review Committee.70 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.71 It makes its recommendation to the Attorney
General through the Deputy Attorney General.72
Appointment of Counsel
Capital defendants are entitled upon request to the assignment of two attorneys for their defense.73
There is some uncertainty over whether they are to be appointed immediately following

65 18 U.S.C. § 3237(a) (“(a) Except as otherwise expressly provided by enactment of Congress, any offense against the
United States begun in one district and completed in another, or committed in more than one district, may be inquired
of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the
use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the
United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be
inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object
or person moves.”).
66 United States v. Barnette, 211 F.3d 803, 814 (4th Cir. 2000); United States v. Gotti, 660 F. Supp. 2d 512, 515–16
(S.D.N.Y. 2009) (citing, United States v. Saaverdra, 223 F.3d 85, 91 (2d Cir. 2000)); cf. United States v. Umana, 750
F.3d 320, 334 (4th Cir. 2014).
67 JM §§ 9–10.050 (Jan. 2023), 9–10.160[B] (Jan. 2023).
68 Previously, the United States Attorneys’ Manual.
69 JM §§ 9–10.100 (Apr. 2014), 9–10.080 (Jan. 2023).
70 JM § 9–10.130 (Jan. 2023).
71 JM §§ 9–10.130 (Jan. 2023), 9–10.140 (Jan. 2023).
72 JM § 9–10.130 (Jan. 2023).
73 18 U.S.C. § 3005; United States v. Chavez, 894 F.3d 593, 606 (4th Cir. 2018) (“We have interpreted this statute to
apply even when the government does not actually seek the death penalty, if the defendant is indicted for a capital
crime.”) (citing United States v. Boone, 245 F.3d 352, 361 (4th Cir. 2001)); but see United States v. Wells, 879 F.3d
900, 911 (9th Cir. 2018) (“In this circuit, § 3005 does not require that two attorneys be, or continue to be, appointed
whenever the Government indicts a defendant for a crime punishable by death but does no seek the death penalty.”);
United States v. Coles, 474 F. Supp. 3d 661, 664 (M.D. Pa. 2020) (“Nearly all circuit courts to address the question sub
judice
have held that a defendant’s entitlement to learned counsel ends when the government elects not to pursue the
(continued...)
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indictment for a capital offense or whether they need only be appointed “promptly” sometime
prior to trial.74 The statute does not permit the court to hold appointment in abeyance during
pendency of the DOJ review process.75 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 and grounds for reversal or if the defendant must still show that the error was
prejudicial.76
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.77 This does not entitle the accused to the attorney or expert of his choice or to a
jury-selection expert.78 Moreover, removal of the defendant’s attorney in a compensation dispute
is not appealable until after the trial.79
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.80 The Fourth and Eleventh Circuits have held that a failure to provide timely notice may
preclude the effort of a prosecutor to seek the death penalty. More exactly, they have held (1) that
a death notice filed unreasonably close to the date set for trial is properly subject to a motion to

death penalty.”) (collecting cases). No violation occurs if one of the attorneys is briefly absent during the subsequent
trial. United States v. Mikhel, 889 F.3d 1003, 1034 (9th Cir. 2018).
74 18 U.S.C. § 3005 (“Whoever is indicted for treason or other capital crime shall be allowed to make his full defense
by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the
defendant’s request, assign 2 such counsel. . . . ”); In re Sterling-Suarez, 306 F.3d 1170, 1173 (1st Cir. 2002) (“ counsel
is to be appointed reasonably soon after the indictment and prior to the time that submissions are to be made to
persuade the Attorney General not to seek the death penalty”); United States v. Tsarnaev, 951 F.Supp.2d 209, 211 (D.
Mass. 2013) (“Here, the defendant is charged in a criminal complaint as opposed to an indictment. Accordingly, the
defendant’s request to appoint learned counsel under section 3005 is premature.”); United States v. Shepperson, 739
F.3d 176, 178–80 (4th Cir. 2014) (appointment is required only if and when the defendant requests).
75 United States v. Medina-Rivera, 285 F. Supp. 3d 505, 506–508 (D.P.R. 2018).
76 See United States v. Fields, 483 F.3d 313, 348 (5th Cir. 2007) (finding no prejudice and consequently no reversal
error in the trial court’s failure to comply with the statutorily required consultation with the Federal Public Defender
before selecting the second capital defense counsel and acknowledging disagreement between the Third and Fourth
Circuits over a “presumed-prejudice approach to a court’s failure to appoint second counsel”). Compare United States
v. Williams, 544 F.2d 1215, 1218 (4th Cir. 1976), with United States v. Casseus, 282 F.3d 253, 256 n.1 (3d Cir. 2003).
77 18 U.S.C. §§ 3006A, 3599. Section 3599 also authorizes the appointment of attorneys and other services in relation
to the habeas corpus petitions of state death row inmates, matters that are beyond the scope of this report.
78 United States v. Mikos, 539 F.3d 706, 712–13 (7th Cir. 2008).
79 United States v. Tillman, 756 F.3d 1144, 1146 (9th Cir. 2014) (“This case highlights the tension between judicial
efforts to control costs of appointed counsel, the defendant’s constitutional right to have counsel appointed, counsel’s
reliance on timely payment of Criminal Justice Act (“CJA”) vouchers, and the delays often present in processing
vouchers for payment . . . The removal order is nonfinal and not immediately appealable; Tillman has the opportunity
to raise this issue on direct appeal, if there is one.”).
80 18 U.S.C. § 3593(a) (“If, in a case involving an offense described in section 3591, the attorney for the government
believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the
attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with
the court, and serve on the defendant, a notice—(1) stating that the government believes that the circumstances of the
offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the
government will seek the sentence of death; and (2) setting forth the aggravating factor or factors that the government,
if the defendant is convicted, proposes to prove as justifying a sentence of death.”).
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strike the government’s death notice, without which the government may not seek the death
penalty; and (2) that an interlocutory appeal may be taken from the denial of such a motion.81
The Second Circuit, on the other hand, concluded that there is no right to avoid the death penalty
simply because of the government’s untimely death notice and that consequently a refusal to
strike the death notice is not a matter from which an interlocutory appeal may be taken.82
Prosecutors have sometimes provided a “protective death notice” in order to preserve the option
to seek the death penalty before a final decision is made. The notice is withdrawn should the
Attorney General decide not to seek the death penalty. The arrangement is not one which the
Justice Department prefers.83
The subsequent case law has muted the issue somewhat by holding that the indictment must
contain allegations of the statutory aggravating factors without which the capital punishment may
not be imposed.84
Capital Juries
The Sixth Amendment affords the accused the right to trial before an impartial jury.85 The Federal
Death Penalty Act affords the defendant convicted of a capital offense the right to a jury for

81 United States v. Ferebe, 332 F.3d 722, 726–40 (4th Cir. 2003); United States v. Wilk, 452 F.3d 1208, 1220–21 (11th
Cir. 2006); see also United States v. Ayala-Lopez, 457 F.3d 107, 108 (1st Cir. 2006) (assuming with some reservations
that interlocutory appeal was available, but concluding that the defendant had been given timely notice).
82 United States v. Robinson, 473 F.3d 487, 491–92 (2d Cir. 2007).
83 Death Penalty Reform Act of 2006: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the
House Comm. on the Judiciary
, 109th Cong., 2d Sess. (Margaret P. Giffin, Chief, Capital Case Unit, Criminal Division,
Dep’t of Just.) at 12–14 (2006), available at http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg26769/pdf/CHRG-
109hhrg26769.pdf (“All agree that the defendant must be put on notice in a timely manner of the government’s
intention to seek the death penalty. Unfortunately, in United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003), the Fourth
Circuit concluded that the determination of whether a notice of intent has been filed in a timely manner must be made
with respect to the trial date in effect at the time the notice is filed and without regard to the additional preparation and
issues resulting from a death penalty prosecution. In other words, in the Fourth Circuit, an actual trial date cannot be
continued to allow the defense adequate time to prepare for the capital punishment hearing. Particularly in those courts
with what is know[n] [sic] as a ‘rocket docket,’ the Ferebe rule could result in the dismissal of a death notice. In some
instances, in order not to forfeit the ability to seek a death sentence, the Department has been forced to file a ‘protective
death notice.’ A ‘protective death notice’ is one that is filed in a case before the case has been fully reviewed and the
Attorney General has made a final decision whether or not to seek the death penalty. In cases in which the Attorney
General decides not to seek the death penalty, the protective notice is then withdrawn. The Department of Justice is
committed to the goal of the consistent, fair and even-handed application of the death penalty, regardless of geography
and local sentiment. The decision whether it is appropriate to seek the death penalty involves awesome responsibilities
and consequences. The Ferebe court’s understanding of the existing section 3593(a) provisions favors expedience over
considered decision-making, and when a considered decision cannot be reached in a limited amount of time, it forces
the government to choose between filing a protective death notice or abandoning the goal of consistency and
evenhandedness in the application of the death penalty.”).
84 Matthews v. United States, 622 F.3d 99, 102 (2d Cir. 2010) (“Although Apprendi [Apprendi v. New Jersey, 530 U.S.
466 (2000)] and Ring [Ring v. Arizona, 536 U.S. 584 (2002)] did not address the Fifth Amendment, we have held that
the logic of those cases requires that statutory aggravating factors be alleged in the indictment in capital cases.”); see
also
, United States v. Lawrence, 735 F.3d 385, 420 (6th Cir. 2013) (“After Ring, several courts have held that an
indictment charging a death-eligible offense under the FDPA must charge the statutory aggravating factors, See United
States v. Brown
, 441 F.3d 1330, 1367 (11th Cir. 2006); United States v. Allen, 406 F.3d 940, 943–44 (8th Cir. 2005);
[United States v.] Higgs, 353 F.3d [281, 297–98 (4th Cir. 2003).”); cf. United States v. Coonce, 932 F.3d 620, 631 (8th
Cir. 2019). The Justice Manual instructs prosecutors to submit all capital-eligible cases for Justice Department review
prior to indictment, absent extenuating circumstances. JM § 9–10.060 (Jan. 2020).
85 U.S. CONST. amend. VI.
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sentencing purposes.86 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.87 A convicted defendant may also waive his right
to a jury during the capital sentencing phase.88
The prosecution, on the other hand, enjoys comparable prerogatives. It may insist upon a jury if
there is to be a trial.89 It must also agree if the capital sentencing hearing is to be held before the
court without a jury.90 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.91
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 6.92 In a capital case, each side has 20
peremptory challenges.93 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.94
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.95 Neither may a
person who is intellectually disabled (“mentally retarded” under governing statute and caselaw)

86 18 U.S.C. § 3593(b) (“The [sentencing] hearing shall be conducted—(1) before the jury that determined the
defendant’s guilt; (2) before a jury impaneled for the purpose of the hearing if—(A) the defendant was convicted upon
a plea of guilty; (B) the defendant was convicted after a trial before the court sitting without a jury; (C) the jury that
determined the defendant’s guilt was discharged for good cause; or (D) after initial imposition of a sentence under this
section, reconsideration of the sentence under this section is necessary; or (3) before the court alone, upon the motion
of the defendant and with the approval of the attorney for the government. A jury impaneled pursuant to paragraph (2)
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.”).
87 FED. R. CRIM. P. 23(a) (“If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant
waives a jury trial in writing; (2) the government consents; and (3) the court approves.”); Florida v. Nixon, 543 U.S.
175, 187 (2004) (“By entering a guilty plea, a defendant waives constitutional rights . . . including the right to trial by
jury . . .”).
88 18 U.S.C. § 3593(b)(3).
89 FED. R. CRIM. P. 23(a); Singer v. United States, 380 U.S. 24, 36 (1965); United States v. Wessel, 2 F.4th 1043, 1057
(7th Cir. 2021); United States v. United States District Court, 464 F.3d 1065, 1069–70 (9th Cir. 2006).
90 18 U.S.C. § 3593(b)(3).
91 Uttecht v. Brown, 551 U.S. 1, 9 (2007) (“[A] juror who is substantially impaired in his or her ability to impose the
penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal
for cause is impermissible”); United States v. Snarr, 704 F.3d 368, 379 (5th Cir. 2013) (“[A] court may excuse a
prospective juror for cause because of his views on capital punishment if those views would prevent or substantially
impair the performance of his duties as a juror in accordance with the instructions and oath.” (quoting United States v.
Webster, 162 F.3d 308, 340 (5th Cir.1998))); United States v. Stinson, 647 F.3d 1196, 1206 (9th Cir. 2011); United
States v. Fell, 531 F.3d 197, 210 (2d Cir. 2008).
92 FED. R. CRIM. P. 24(b)(2).
93 FED. R. CRIM. P. 24(b)(1).
94 FED. R. CRIM. P. 24(b); United States v. Lopez, 649 F.3d 1222, 1242–244 (11th Cir. 2011) (upholding the trial
court’s requirement that the defendants agree on challenges and to agree upon whether to accept the court’s offer of
four additional challenges contingent upon the prosecution being allowed three additional challenges).
95 18 U.S.C. § 3596(b).
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be executed nor a person who lacks the mental capacity to understand that he is being executed
and why.96
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.97 An accused who is incompetent to
stand trial may not be tried for a capital offense or any other crime.98 Native Americans are not
subject to the Federal Death Penalty Act under some circumstances. The limitation applies to
murders committed by and against Native Americans in Indian Country when the appropriate
tribe has refused to allow application of Federal Death Penalty Act in such cases.99 It does not
restrict workings of Federal Death Penalty Act when the crime is one of general rather than
enclave application—regardless of the status of the victim, the offender, or tribal approval.100
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.101

96 18 U.S.C. § 3596(c); see also Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment
prohibits execution of the “mentally retarded”). See also United States v. Coonce, 932 F.3d 623, 631 n.4 (8th Cir. 2019)
(“We recognize the use of the term ‘mentally retarded’ may be offensive to some. However, this terminology reflects
the statutory language” [and the term used in Atkins].).
97 18 U.S.C. § 3591; see also Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth . . . Amendment[] forbid[s]
imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”).
98 No accused may be tried for any federal crime until he is competent to stand trial, that is, until he is capable of
understanding the proceedings against him and assisting in his defense. Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam); United States v. Roof, 10 F.4th 314, 341 (4th Cir. 2021) (capital case); United States v. Utsick, 45
F.4th 1325, 1338 (11th Cir. 2022) (noncapital case); United States v. Wessel, 2 F.4th 1043, 1053 (7th Cir. 2021)
(noncapital case); cf. 18 U.S.C. § 4241.
99 18 U.S.C. § 3598 (“Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an
Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction
for which is predicated solely on Indian country (as defined in section 1151 of this title) and which has occurred within
the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over
land and persons subject to its criminal jurisdiction.”).
100 United States v. Mitchell, 502 F.3d 931, 948–49 (9th Cir. 2007) (“[T]he FDPA unambiguously requires opt-in only
where jurisdiction is based on Indian country . . . . [T]he opt-in provisions appears to afford Indian tribes as much
authority as states in determining whether capital punishment may be imposed in circumstances not involving federal
crimes of general applic[ation]. The federal government seeks and obtains FDPA death sentences in states that have
long since abandoned the death penalty themselves.”); United States v. Gallaher, 624 F.3d 934, 939 n.1. (9th Cir.
2010).
101 18 U.S.C. §§ 3591, 3592, 3593.
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Federal law divides death-eligible offenses into three categories.102 The one group consists of
homicide offenses,103 another of espionage and treason,104 and a third of drug offenses that do not
involve a killing.105 Most capital offenses involve a homicide.106 More defendants are sentenced
to death for murder than for all of the other federal capital offenses.107
Capital Homicide Offenses
Murder is a capital offense under more than 50 federal statutes.108 Some outlaw murder as such
under various jurisdictional circumstances.109 Most make some other offense, such as carjacking,
a capital offense, if death results from its commission.110
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

102 Id. § 3591.
103 Id. § 3591(a)(2) (“[A]ny other offense for which a sentence of death is provided, if the defendant, as determined
beyond a reasonable doubt at the hearing under section 3593—(A) intentionally killed the victim; (B) intentionally
inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act,
contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a
person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D)
intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a
person, other than one of the participants in the offense, such that participation in the act constituted a reckless
disregard for human life and the victim died as a direct result of the act, shall be sentenced to death if, after
consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is
determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was
less than 18 years of age at the time of the offense.”).
104Id. § 3591(a)(1) (“A defendant who has been found guilty of—(1) an offense described in section 794 or section
2381 . . . shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a
hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no
person may be sentenced to death who was less than 18 years of age at the time of the offense.”).
105 Id. § 3591(b) (“(b) A defendant who has been found guilty of—(1) an offense referred to in section 408(c)(1) of the
Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under
the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled
substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B); or (2) an
offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a
continuing criminal enterprise offense under that section, where the defendant is a principal administrator, organizer, or
leader of such an enterprise, and the defendant, in order to obstruct the investigation or prosecution of the enterprise or
an offense involved in the enterprise, attempts to kill or knowingly directs, advises, authorizes, or assists another to
attempt to kill any public officer, juror, witness, or members of the family or household of such a person, shall be
sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant
to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be
sentenced to death who was less than 18 years of age at the time of the offense.”).
106 Of the more than 60 federal capital offenses, all are homicide offenses except for treason, espionage, and two drug
kingpin offenses.
107 Of the 43 federal inmates on death row on the date of this report, all were convicted of federal capital offenses
involving a homicide, Federal Death Row Prisoners, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/state-
and-federal-info/federal-death-penalty/list-of-federal-death-row-prisoners (last visited June 1, 2023).
108 A list of federal capital offenses is appended.
109 E.g., 18 U.S.C. § 1111(b) (“Within the special maritime and territorial jurisdiction of the United States, Whoever is
guilty of murder in the first degree shall be punished by death or by imprisonment for life . . . .”).
110 Id. § 2119 (“Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been
transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall . . . (3) if death results, be fined under this title or imprisoned for
any number of years up to life, or both, or sentenced to death.”).
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would expose a victim to life-threatening force, and the victim died as a consequence; or (4)
intentionally engaged in an act of violence with reckless disregard of its life-threatening nature
and the victim died as a consequence.111 The court will sometimes permit a separate preliminary
jury proceeding to determine the existence of the requisite intent.112 Some courts have upheld the
submission of more than one mental state to the jury.113 Under some circumstances, aiding and
abetting liability may supply the mental state necessary for (C) or (D).114
The act-of-violence branch of the intent requirement in 18 U.S.C. § 3591(a)(2)(D) consists of (1)
“intentionally and specifically engag[ing] in an act of violence”; (2) “knowing that the act created
a grave risk of death . . . such that participation in the act constituted a reckless disregard for
human life”; and (3) death of the victim “as a direct result of the act.”115 The Federal Death
Penalty Act does not define “act of violence.” It has been said to encompass the use of physical
force against the person or property of another.116
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.117
Aggravating Factors
Subsection 3592(c) of the Federal Death Penalty Act lists 16 statutory aggravating factors:
1. Death during commission of another crime.118

111 Id. § 3591(a) (“A defendant who has been 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 the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act
created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the
act constituted a reckless disregard for human life and the victim died as a direct result of the act, shall be sentenced to
death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section
3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to
death who was less than 18 years of age at the time of the offense”); Jones v. United States, 527 U.S. 373, 376 (1999);
United States v. Roof, 10 F.4th 314, 365 n.33 (4th Cir. 2021); United States v. Fackrell, 991 F.3d 589, 599–600 (5th
Cir. 2021).
112 United States v. Johnson, 764 F.3d 937, 938–39 (8th Cir. 2014) (“[A] district court may bifurcate a capital
sentencing hearing into an ‘eligibility phase’ and a ‘penalty-selection phase’”) (quoting United States v. Bolden, 545
F.3d 609, 618–619 (8th Cir. 2008); United States v. Fell, 531 F.3d 197, 240 n.28 (2d Cir. 2008); cf. United States v.
Moussaoui, 591 F.3d 263, 301 (4th Cir. 2010).
113 Roof, 10 F.4th at 365 n.33; United States v. Bolden, 545 F.3d 609, 629–30 (8th Cir. 2008) (citing in accord United
States v. Jackson, 327 F.3d 273, 300–01 (4th Cir. 2003); United States v. Webster, 162 F.3d 308, 323–24 (5th Cir.
1998)). In Moussaoui, the “act” necessary to trigger the liability under 3591(a)(2)(C) consisted of his false statements
at the time of his arrest that failed to disclose the then pending 9/11 attack, Moussaoui, 591 F.3d. at 301 n.24.
114 Fackrell, 991 F.3d at 600 (citing United States v. Williams, 610 F.3d 271, 287 (5th Cir. 2010); United States v. Paul,
217 F.3d 989, 998 (8th Cir. 2000)).
115 18 U.S.C. § 3591(a)(2)(D); Williams, 610 F.3d at 285.
116 Williams, 610 F.3d at 285–89; see also In re Terrorist Bombings of U.S. Embassies, 552 F.3d 93, 111 (2d Cir. 2008)
(attacking the American Embassy with a bomb resulting in death satisfies the requirements of section 3591(2)(D).
117 18 U.S.C. §§ 3591(a)(2), 3593(e); Jones v. United States, 527 U.S. 373, 376–77 (1999); United States v. Gabrion,
719 F.3d 511, 532 (6th Cir. 2013); United States v. Ebron, 683 F.3d 105, 150 (5th Cir. 2012).
118 18 U.S.C. § 3592(c)(1) (“The death, or injury resulting in death, occurred during the commission or attempted
commission of, or during the immediate flight from the commission of, an offense under section 32 (destruction of
aircraft or aircraft facilities), section 33 (destruction of motor vehicles or motor vehicle facilities), section 37 (violence
(continued...)
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2. Previous conviction of violent felony involving firearm.119
3. Previous conviction of offense for which a sentence of death or life imprisonment
was authorized.120
4. Previous conviction of other serious offenses.121
5. Grave risk of death to additional persons.122
6. Heinous, cruel, or depraved manner of committing offense.123
7. Procurement of offense by payment.124
8. Pecuniary gain.125
9. Substantial planning and premeditation.126
10. Prior conviction for two felony drug offenses.127
11. Vulnerability of victim.128
12. Conviction for serious federal drug offenses.129

at international airports), section 351 (violence against Members of Congress, Cabinet officers, or Supreme Court
Justices), an offense under section 751 (prisoners in custody of institution or officer), section 794 (gathering or
delivering defense information to aid foreign government), section 844(d) (transportation of explosives in interstate
commerce for certain purposes), section 844(f) (destruction of Government property by explosives), section 1118
(prisoners serving life term), section 1201 (kidnapping), section 844(i) (destruction of property affecting interstate
commerce by explosives), section 1116 (killing or attempted killing of diplomats), section 1203 (hostage taking),
section 1992 (wrecking trains), section 2245 (offenses resulting in death), section 2280 (maritime violence), section
2281 (maritime platform violence), section 2332 (terrorist acts abroad against United States nationals), section 2332a
(use of weapons of mass destruction), or section 2381 (treason) of this title, or section 46502 of title 49, United States
Code (aircraft piracy).”).
119 18 U.S.C. § 3592(c)(2) (“For any offense, other than an offense for which a sentence of death is sought on the basis
of section 924(c), the defendant has previously been convicted of a Federal or State offense punishable by a term of
imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section
921) against another person.”); United States v. Torrez, 869 F.3d 291, 312 (4th Cir. 2017) (holding the aggravating
factor applies even when the aggravating offense occurred after the capital offense).
120 18 U.S.C. § 3592(c)(3) (“The defendant has previously been convicted of another Federal or State offense resulting
in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute.”).
121 Id. §3592(c)(4) (“The defendant has previously been convicted of 2 or more Federal or State offenses, punishable by
a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted
infliction of, serious bodily injury or death upon another person,”).
122 Id. § 3592(c)(5) (“The defendant, in the commission of the offense, or in escaping apprehension for the violation of
the offense, knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense,”).
123 Id. § 3592(c)(6) (“The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it
involved torture or serious physical abuse to the victim.”).
124 Id. § 3592(c)(7) (“The defendant procured the commission of the offense by payment, or promise of payment, of
anything of pecuniary value.”).
125 Id. § 3592(c)(8) (“The defendant committed the offense as consideration for the receipt, or in the expectation of the
receipt, of anything of pecuniary value.”).
126 Id. § 3592(c)(9) (“The defendant committed the offense after substantial planning and premeditation to cause the
death of a person or commit an act of terrorism.”).
127 Id. § 3592(c)(10) (“The defendant has previously been convicted of 2 or more State or Federal offenses punishable
by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a
controlled substance.”).
128 Id. § 3592(c)(11) (“The victim was particularly vulnerable due to old age, youth, or infirmity.”).
129 Id. § 3592(c)(12) (“The defendant had previously been convicted of violating title II or III of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 for which a sentence of 5 or more years may be imposed or had
previously been convicted of engaging in a continuing criminal enterprise.”).
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13. Continuing criminal enterprise involving drug sales to minors.130
14. High public officials.131
15. Prior conviction of sexual assault or child molestation.132
16. Multiple killings or attempted killings.133
The jury may also consider any non-statutory aggravating factors which it finds beyond a
reasonable doubt to exist.134 The Justice Department’s Justice Manual contains a list of suggested
possible non-statutory aggravating factors:
• Killing of state/local law enforcement officers;
• Killing of witnesses or cooperators to obstruct justice;
• Killings motivated by the actual or perceived race, color, religion, national origin,
gender, sexual orientation, gender identity, or disability of the victim;
• Whether a defendant engaged in criminal activity for which he has not been held
responsible;
• Whether a defendant poses a risk of future dangerousness, particularly while
imprisoned; and
• Impact of the crime on the victim and the victim’s family/friends/colleagues.135
Death during the commission of another federal offense: The first statutory aggravating factor
encompasses those instances where “[t]he death, or injury resulting in death, occurred during the
commission or attempted commission of, or during the immediate flight from the commission of”
a violation of one of the following statutes:
• 18 U.S.C. § 32 (destruction of aircraft or aircraft facilities),
• 18 U.S.C. § 33 (destruction of motor vehicles or motor vehicle facilities),
• 18 U.S.C. § 37 (violence at international airports),

130 Id. § 3592(c)(13) (“The defendant committed the offense in the course of engaging in a continuing criminal
enterprise in violation of section 408(c) of the Controlled Substances Act (21 U.S.C. 848(c)), and that violation
involved the distribution of drugs to persons under the age of 21 in violation of section 418 of that Act (21 U.S.C.
859).”).
131 Id. § 3592(c)(14) (“The defendant committed the offense against—(A) the President of the United States, the
President-elect, the Vice President, the Vice President-elect, the Vice President-designate, or, if there is no Vice
President, the officer next in order of succession to the office of the President of the United States, or any person who is
acting as President under the Constitution and laws of the United States; (B) a chief of state, head of government, or the
political equivalent, of a foreign nation; (C) a foreign official listed in section 1116(b)(3)(A), if the official is in the
United States on official business; or (D) a Federal public servant who is a judge, a law enforcement officer, or an
employee of a United States penal or correctional institution - (i) while he or she is engaged in the performance of his
or her official duties; (ii) because of the performance of his or her official duties; or (iii) because of his or her status as a
public servant. For purposes of this subparagraph, a ‘law enforcement officer’ is a public servant authorized by law or
by a Government agency or Congress to conduct or engage in the prevention, investigation, or prosecution or
adjudication of an offense, and includes those engaged in corrections, parole, or probation functions.”).
132 Id. § 3592(c)(15) (“In the case of an offense under chapter 109A (sexual abuse) or chapter 110 (sexual abuse of
children), the defendant has previously been convicted of a crime of sexual assault or crime of child molestation.”).
133 Id. § 3592(c)(16) (“The defendant intentionally killed or attempted to kill more than one person in a single criminal
episode.”).
134 Id. § 3593(d) (“The jury . . . shall return special findings identifying any aggravating factor or factors set forth in
section 3592 found to exist and any other aggravating factor for which notice has been provided under subsection (a)
found to exist . . .”).
135 JM § 9–10.140 (Jan. 2023).
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• 18 U.S.C. § 351 (violence against Members of Congress, Cabinet officers, or
Supreme Court Justices),
• 18 U.S.C. § 751 (prisoners in custody of institution or officer),
• 18 U.S.C. § 794 (gathering or delivering defense information to aid foreign
government),
• 18 U.S.C. § 844(d) (transportation of explosives in interstate commerce for
certain purposes),
• 18 U.S.C. 844(f) (destruction of Government property by explosives),
• 18 U.S.C. § 1118 (prisoners serving life term),
• 18 U.S.C. § 1201 (kidnapping),
• 18 U.S.C. § 844(i) (destruction of property affecting interstate commerce by
explosives),
• 18 U.S.C.§ 1116 (killing or attempted killing of diplomats),
• 18 U.S.C. § 1203 (hostage taking),
• 18 U.S.C. § 1992 (wrecking trains),
• 18 U.S.C. § 2245 ([sex] offenses resulting in death),
• 18 U.S.C. § 2280 (maritime violence),
• 18 U.S.C. § 2281 (maritime platform violence),
• 18 U.S.C. § 2332 (terrorist acts abroad against United States nationals),
• 18 U.S.C. § 2332a (use of weapons of mass destruction),
• 18 U.S.C. § 2381 (treason), or
• 49 U.S.C. § 46502 (aircraft piracy).136
Federal juries have concluded on a number of occasions that the fact that a murder was
committed during the course of one of these predicate offenses was a sufficient aggravating factor
to justify imposition of the death penalty.137 The contention that this statutory aggravating factor
is constitutionally suspect—because it does not narrow the class of offenders who face the death
penalty—has been rejected.138 Citation of the predicate offense in the indictment is sufficient
notification; the indictment need not recite the elements of the predicate offense.139
Prior violent felony conviction involving a firearm: Prior state or federal conviction for an
offense involving use of a firearm qualifies as a statutory aggravating factor as well.140 The factor
is triggered by the use, attempted use, or threatened use of a firearm in connection with the crime

136 18 U.S.C. § 3592(c)(1).
137 E.g., Jones v. United States, 527 U.S. 373, 377 (1999) (involving killing during the commission of a kidnapping);
Purkey v. United States, 964 F.3d 603, 607 (7th Cir. 2020) (involving murder during the course of a kidnapping and
rape); United States v. Coonce, 932 F.3d 623, 631 (8th Cir. 2019) (involving murder by a prisoner serving a life
sentence); United States v. Mikhel, 889 F.3d 1003, 1020 (9th Cir. 2008) (involving three counts of hostage taking
resulting in death).
138 United States v. Jones, 132 F.3d 232, 248–49 (5th Cir. 1998) (“An aggravating factor which merely repeats an
element of the crime passes constitutional muster as long as it narrows the jury’s discretion. [See Lowenfield v. Phelps,
484 U.S. 231, 246 (1988)] . . . The FDPA channels the jury’s discretion during the penalty phase to ensure that the
death penalty is not arbitrarily imposed.”); see also United States v. Aquart, 912 F.3d 1, 54–55 (2d Cir. 2018); United
States v. Torrez, 869 F.3d 291, 311 (4th Cir. 2017).
139 United States v. Jackson, 327 F.3d 273, 289–90 (4th Cir. 2003).
140 E.g., United States v. Fackrell, 991 F.3d 589, 609 (5th Cir. 2021); Purkey, 964 F.3d at 607; Torrez, 869 F.3d at 305.
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for which the defendant was previously convicted; involvement of a firearm need not be an
element of the earlier offense.141
Prior conviction for a capital offense: This statutory aggravating factor has apparently only
been invoked infrequently.142 It seems most likely to occur in a prison context and in the presence
of other statutory aggravating factors, for example, death during the commission of another
crime, previous conviction of a violent firearm felony, or previous convictions of other serious
offenses.143
Other prior convictions: Subsection 3592(c) features four other statutory aggravating factors
predicated on prior convictions, three of which may be called upon more often than the prior
capital offense factor. They cover prior convictions for serious drug offenses, multiple prior
convictions for drug felonies or felonies involving serious bodily injury, and prior convictions for
sexual assault or child molestation.144
The twin prior drug conviction statutory factors—(1) two or more prior felony drug
convictions,145 and (2) a prior federal drug conviction for which the defendant was sentenced to
imprisonment for five years or more146—are not constitutionally suspect simply because they may
be unrelated to the murder.147 As a consequence, the convictions may have occurred after the
murder with respect to which they are aggravating factors.148 They meet the constitutional
minimum standard for aggravating factors, that is, they “genuinely narrow the class of persons
eligible for the death penalty” and they “reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder.”149
The factor covering two or more prior felony convictions involving infliction of serious bodily
injuries150 applies to convictions not merely for offenses with a serious injury element, but also to
convictions for offenses that in fact involved the infliction of serious injuries including
psychological injuries.151
The final recidivist statutory aggravating factor occurs only under very limited circumstances. It
encompasses only murders committed during the course of a federal sexual assault or child
molestation offense, and only with respect to defendants who have a prior conviction for sexual
assault or child molestation.152

141 United States v. Higgs, 353 F.3d 281, 316–17 (4th Cir. 2003).
142 E.g., United States v. O’Driscoll, 203 F. Supp. 2d 334, 347 (M.D. Pa. 2002); United States v. Battle, 979 F. Supp.
1442 (N.D. Ga. 1997).
143 18 U.S.C. § 3592(c)(1), (2), (4).
144 Id. § 3592(c)(12), (10), (4), (15).
145 Id. § 3592(c)(10); e.g., United States v. Caro, 597 F.3d 608, 612 (4th Cir. 2010); United States v. Bolden, 545 F.3d
609, 616 (8th Cir. 2008) (holding the factor covering convictions for offenses “involving” distribution includes attempt
offenses as well).
146 18 U.S.C. § 3592(c)(12); e.g., Caro, 597 F.3d at 612; United States v. Higgs, 353 F.3d 281, 318 (4th Cir. 2003).
147 Caro, 597 F.3d at 622–24.
148 Higgs, 353 F.3d at 318 (“Unlike others contained within § 3592(c), the aggravator does not concern matters directly
related to the death penalty offense. Rather, it is concerned with the characteristics of the offender as of the time that he
is sentenced.”).
149 Caro, 597 F.3d at 623 (quoting Zant v. Stevens, 462 U.S. 862, 877 (1983)); cf. Bolden, 545 F.3d at 617 (relating to
18 U.S.C. § 3592(c)(10)).
150 18 U.S.C. § 3592(c)(4); e.g., United States v. Fackrell, 991 F.3d 589, 609 (5th Cir. 2021); Purkey v. United States,
964 F.3d 603, 607 (7th Cir. 2020); United States v. Coonce, 932 F.3d 623, 631 (8th Cir. 2019).
151 United States v. Rodriguez, 581 F.3d 775, 808 (8th Cir. 2009).
152 18 U.S.C. § 3592(c)(15).
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Grave risk of other deaths: The statutory aggravating factor covering the creation of a grave
risk of death to someone other than the murder victim reaches cases involving “a significant and
considerable possibility” of the death of another and of placing others in a “zone of danger.”153
Heinous, cruel, or depraved manner: The “heinous, cruel, or depraved” aggravating factor154
has historically been troublesome because “[m]ost federal offenses that carry the death-penalty
punishment could be fairly characterized as heinous, cruel, or depraved.”155 Without more, it
would be poorly suited to perform the necessary narrowing function required of an aggravating
factor.156 The statute and the courts have added more. First, subsection 3592(c)(6) limits the factor
to instances that “involve torture or serious physical abuse of the victim.”157 Second, the courts
have explained that this limits the factor to cases in which the defendant “inflicted ‘suffering or
mutilation above and beyond that necessary to cause death.’”158
Ordering a murder for hire: The statutory aggravating factor that applies when the defendant
has procured another to commit a murder appears to have been cited sparingly.159
Murder for pecuniary gain: On the other hand, the closely related pecuniary gain factor—“the
defendant committed the offense as consideration for the receipt, or in expectation of the receipt,
of anything of pecuniary value”—was once cited with some regularity.160 It applies both to
murders committed for gain received beforehand and to murders committed in anticipation of

153 United States v. Barnette, 211 F.3d 803, 819 (4th Cir. 2000); 18 U.S.C. § 3592(c)(5); see also United States v.
Robinson, 367 F.3d 278, 289 (5th Cir. 2004) (“All three death sentences involved the aggravating factor that in the
killings of Shelton and Reyes, Robinson ‘knowingly created a grave risk of death to one or more persons in addition to
... the victim.’ Cf. 18 U.S.C. § 3592(c)(5). Robinson killed Shelton by firing an AK-47 assault rifle from the window of
a moving vehicle on a public highway, directly endangering Shelton’s passenger and anyone else in range. The record
also shows that in the course of killing Reyes, Robinson and his co-assailant managed to shoot Rodriguez three times
and to fire enough times at Marques’s car fleeing the scene to leave it riddled with bullets. All this took place in a
residential neighborhood in close proximity to at least two adolescent eyewitnesses playing on a nearby porch, and
across the street from a barbecue attended by at least ten people. No rational grand jury would fail to find that this
evidence constituted anything less than probable cause to believe that, in the course of committing each murder,
Robinson created a grave risk of death to someone other than the victim.”); United States v. Umana, 750 F.3d 320, 329
(4th Cir. 2014); United States v. Lawrence, 735 F.3d 385, 417–18 (6th Cir. 2013).
154 18 U.S.C. § 3592(c)(6).
155 United States v. Montgomery, 635 F.3d 1074, 1095 (8th Cir. 2011).
156 Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (“[I]f a State wishes to authorize capital punishment, it has a
constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of
the death penalty . . . [A] death penalty ‘system could have standards so vague that they would fail adequately to
channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing
like that found unconstitutional in Furman could occur.’ In the case before us, the Georgia Supreme Court has affirmed
a sentence of death based upon no more than a finding that the offense was ‘outrageously or wantonly vile, horrible and
inhuman.’ There is nothing in these few words standing alone, that implies any inherent restraint on the arbitrary and
capricious infliction of the death sentence.”) (internal citations omitted).
157 United States v. Mitchell, 502 F.3d 931, 975 (9th Cir. 2007) (“Mitchell submits that this factor is constitutional, but
this can’t be so given that Congress defined what it meant by ‘especially heinous, cruel, or depraved’ when it specified
that for this manner of killing to be aggravating, it must involve ‘torture or serious physical abuse to the victim.’”
(citation omitted)).
158 United States v. Savage, 970 F.3d 217, 303 (3d Cir. 2020) (quoting Montgomery, 635 F.3d at 1095–96 and United
States v. Agofsky, 458 F.3d 369, 374 (5th Cir. 2006)); see also United States v. Hall, 945 F.3d 1035, 1041 (8th Cir.
2019); United States v. Snarr, 704 F.3d 368, 394–95 (5th Cir. 2013).
159 18 U.S.C. § 3592(c)(7); e.g., United States v. Aquart, 912 F.3d 1, 14 (2d Cir. 2018); United States v. Mikhel, 889
F.3d 1003, 1021 (9th Cir. 2018).
160 18 U.S.C. § 3592(c)(8); e.g., United States v. Whitten, 610 F.3d 168, 176 (2d Cir. 2010); United States v. Basham,
561 F.3d 302, 314 (4th Cir. 2009); United States v. Davis, 380 F.3d 821, 826–27 5th Cir. 2004).
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gain.161 When committed in conjunction with another crime, the gain must be anticipated as a
consequence of the murder, not be merely a consequence of accompanying crime, such as bank
robbery, for example.162
Substantial planning and premeditation: The substantial planning aggravating factor reaches
both murders where the planning and premeditation were directed at the murder and where the
planning and premeditation were directed at a terrorist offense.163 The factor is often combined
with other statutory and non-statutory aggravating factors.164 The factor requires the government
to show a considerable amount of planning,165 but there is no need to show that the “defendant
deliberated for any particular period of time.”166 The steps taken in preparation for a murder will
often bespeak substantial planning.167
Victim vulnerability: The victim vulnerability factor168 looks to the victim’s age,169 youth,170 or
infirmity.171 It applies to vulnerabilities, for instance, which impair the victim’s ability to resist or

161 United States v. Bolden, 545 F.3d 609, 615 (8th Cir 2008) (citing in accord United States v. Brown, 441 F.3d 1330,
1370 (11th Cir. 2006); United States v. Mitchell, 502 F.3d 931, 974–74 (9th Cir. 2007); and United States v.
Chanthadara, 230 F.3d 1237, 1263–264 (10th Cir. 2000)).
162 Bolden, 545 F.3d at 615 (“We agree with Bolden that the pecuniary gain factor applies to a killing during the course
of a bank robbery only where pecuniary gain is expected to follow as a direct result of the murder”) (citing in accord,
Mitchell, 502 F.3d at 975, and Brown, 441 F.3d at 1370–371); see also United States v. Runyon, 707 F.3d 475, 486–87
(4th Cir. 2013); United States v. Lawrence, 735 F.3d 385, 412 (6th Cir. 2013).
163 18 U.S.C. § 3592(c)(9) (“The defendant committed the offense after substantial planning and premeditation to cause
the death of a person or commit an act of terrorism”); e.g., In re Terrorist Bombings of U.S. Embassies, 552 F.3d 93,
111 (2d Cir. 2008); Mitchell, 502 F.3d at 978.
164 E.g., United States v. Savage, 970 F.3d 217, 282 (3d Cir. 2020) (involving statutory factors 6, 9, 11, and 16);
United States v. Coonce, 932 F.3d 623, 631 (8th Cir. 2019) (involving statutory factors 1, 4, 6, and 9, in addition to
non-statutory factors of future dangerousness, grave indifference to human life, lack of remorse, and obstruction of
justice); United States v. Mikhel, 889 F.3d 1003, 1021 (9th Cir. 2018) (involving statutory factors 1, 7, 9, and 16, along
with non-statutory factors of future dangerousness, conviction for multiple offenses, witness elimination, victim
emotional suffering, and victim impact); United States v. Aquart, 912 F.3d 1, 14 (2d Cir. 2018) (involving statutory
factors 6, 7, 8, 9, and 16, along with non-statutory factors of continuing threatening conduct to others and victim
impact).
165 E.g., United States v. Runyon, 707 F.3d 475, 486–87 (4th Cir. 2013); United States v. Snarr, 704 F.3d 368, 392 (5th
Cir. 2013) (‘substantial planning’ means a considerable amount of planning); United States v. Ebron, 683 F.3d 105, 152
(5th Cir. 2012) (the planning must be that of the defendant not a co-defendant or co-conspirator).
166 United States v. Davis, 609 F.3d 663, 689–90 (5th Cir. 2010); see United States v. Delaney, 717 F.3d 553, 556 (7th
Cir. 2013) (“In contrast to malice aforethought, premeditation requires that ‘an appreciable time elapse between the
formation of the design and the fatal act within which there is, in fact, deliberation.’”) (quoting Fisher v. United States,
328 U.S. 463, 469 n.3 (1946), in which the emphasis appears)).
167 E.g., United States v. Fields, 516 F.3d 923, 941 (10th Cir. 2008) (“The government aptly summarizes facts from
which a reasonable jury could (indeed, very likely would) find the SPP aggravator: [Fields] camouflaged his rifle,
carefully constructed a ghillie suit, and practiced stalking people. He potentially began planning the Chicks’ murder
two days before the offense, when he first saw them. On the night of the murders, he drove to a secluded area and
surveilled his victims while they sat on a vista. Instead of burgling their van and fleeing in the Chicks’ absence, he
methodically donned his ghillie suit, retrieved his rifle and waited for the victims to come within easy range. Even then,
[he] watched the Chicks for 15 to 20 minutes before firing, then shot each victim repeatedly to ensure death.’”).
168 18 U.S.C. § 3592(c)(11).
169 E.g., United States v. Roof, 10 F.4th 314, 365 n.34 (4th Cir. 2021) (indicating three of Roof’s victims were
“particularly” elderly).
170 E.g., United States v. Savage, 970 F.3d 217, 235, 282 (3d Cir. 2020) (reflecting that Savage ordered the firebombing
of an informant’s family home, killing four children); Purkey v. United States, 964 F.3d 603, 607 (7th Cir. 2020)
(reflecting that the jury found factors 1, 2, 3, 4, 6, and 11 after the defendant had kidnapped and killed a teenager.).
171 E.g., United States v. Mikos, 539 F.3d 706, 717 (7th Cir. 2008) (concluding victim’s inability to rise and flee
because of extreme weight made her vulnerable); United States v. Sampson, 486 F.3d 13, 33–34 (1st Cir. 2007).
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flee the murderer.172 The prosecution does not have to establish that the defendant knew of the
victim’s vulnerability.173
Drug dealing to children: The statutory aggravating factor for murder committed in the context
of a large-scale drug trafficking enterprise that involves dealing to children is also narrowly
drawn. It requires a murder committed in the course of a continuing criminal (drug kingpin)
enterprise offense involving the sale of controlled substances to children. 174
High public official: The high public official aggravating factor is both more inclusive and more
exclusive than its caption might suggest. It does not encompass high state officials. It does,
however, include foreign officials as well as federal law enforcement and correctional officers
and employees.175 The defendant need not be aware of the status of his victims, unless they are
federal law enforcement officers or employees murdered for that reason.176
Multiple killings or attempted killings: The multiple killing aggravating factor covers only
cases in which the multiple killings or attempted killings occurred as part of the same criminal
episode,177 and only cases occurring after the factor was added to the subsection in 1996.178
Victim impact: The impact of the defendant’s crime upon the victim’s family is ordinarily
described as a non-statutory aggravating factor, on the theory that it is not listed among the
statutory aggravating factors.179 Subsection 3593(a), however, mentions it as one of the factors
that may be considered aggravating.180 This mixed treatment may be a product of the Supreme
Court’s struggles with the issue. The Court initially suggested that a prosecution’s presentation of
victim impact evidence at a capital sentencing hearing was inherently prejudicial.181 Shortly

172 Mikos, 539 F.3d at 717 (citing in accord Sampson, 486 F.3d at 48–49, and United States v. Paul, 217 F.3d 989,
1001–02 (8th Cir. 2000)).
173 Sampson, 486 F.3d at 34.
174 18 U.S.C. § 3592(c)(13) (“The defendant committed the offense in the course of engaging in a continuing criminal
enterprise in violation of section 408(c) of the Controlled Substances Act (21 U.S.C. 848(c)), to persons under the age
of 21 in violation of section 418 of that Act (21 U.S.C. 859).”); e.g., United States v. Bernard, 299 F.3d 467, 484 (5th
Cir. 2002).
175 18 U.S.C. § 3592(c)(14) (“The defendant committed the offense against - (A) the President of the United States, the
President-elect, the Vice President, the Vice President-elect, the Vice President-designate, or, if there is no Vice
President, the officer next in order of succession to the office of the President of the United States, or any person who is
acting as President under the Constitution and laws of the United States; (B) a chief of state, head of government, or the
political equivalent, of a foreign nation; (C) a foreign official listed in section 1116(b)(3)(A), if the official is in the
United States on official business; or (D) a Federal public servant who is a judge, a law enforcement officer, or an
employee of a United States penal or correctional institution - (i) while he or she is engaged in the performance of his
or her official duties; (ii) because of the performance of his or her official duties; or (iii) because of his or her status as a
public servant.”); cf. Chapa v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003).
176 United States v. Wilson, 493 F.Supp.2d 491, 497–98 (E.D.N.Y. 2007); cf. United States v. bin Laden, 126 F. Supp.
2d 290, 302 n.18 (S.D.N.Y. 2001); United States v. McVeigh, 944 F.Supp. 1478, 1490–491 (D. Colo. 1996).
177 18 U.S.C. § 3592(c)(16). E.g., United States v. Roof, 10 F.4th 314, 365 n.34 (4th Cir. 2021); United States v.
Aquart, 912 F.3d 1, 14 (2d Cir. 2018); United States v. Mikhel, 889 F.3d 1003, 1021 (9th Cir. 2018); United States v.
Umana, 750 F.3d 320, 329 (4th Cir. 2014).
178 United States v. Higgs, 353 F.3d 281, 300–301 (4th Cir. 2003).
179 E.g., Roof, 10 F.4th at 365; United States v. Runyon, 994 F.3d 192, 198 (4th Cir. 2021); United States v. Savage,
970 F.3d 217, 290 (3d Cir. 2020); United States v. Mikhel, 889 F.3d 1003, 1021 (9th Cir. 2018) Aquart, 912 F.3d at 14.
180 18 U.S.C. § 3593(a) (“The [aggravating] factors for which notice is provided under this subsection may include
factors concerning the effect of the offense on the victim and the victim’s family, and may include oral testimony, a
victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered
by the victim and the victim’s family, and any other relevant information . . . .”).
181 Booth v. Maryland, 482 U.S. 496, 502–503 (1987) (“[Personal characteristics of the victims and the emotional
impact of the crimes on the family [,as well as,] the family members’ opinions and characterizations of the crimes and
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thereafter, however, it rejected the notion that the Eight Amendment contained a per se
prohibition on victim impact evidence. It concluded that in “the majority of cases ... victim
impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that
is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause ...
provides a mechanism for relief.”182 The Court later rejected a contention that overlap between
the statutory victim vulnerability factor and the non-statutory victim impact factor resulted in a
constitutionally impermissible double counting.183
The statute refers to the impact of the offense on the victim’s family, but the courts have also
permitted expressions of grief and loss from non-family members.184 Evidence of “a victim’s
family members’ characterizations and opinions about the crime, the defendant, and the
appropriate sentence” may still be out of bounds,185 but the courts are otherwise reluctant to bar
the admission of victim impact evidence.186

defendant . . . are irrelevant to a capital sentencing decision, and that [their] admission creates a constitutionally
unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.”); see also South
Carolina v. Gathers, 490 U.S. 805 (1989).
182 Payne v. Tennessee, 501 U.S. 808, 825 (1991); see also Jones v. United States, 527 U.S. 373, 391 (1999).
183 Jones, 527 U.S. at 398–99 (1999) (“Even accepting, for the sake of argument, petitioner’s ‘double counting’ theory,
there are nevertheless several problems with the Fifth Circuit’s application of the theory in this case. The phrase
‘personal characteristics’ as used in factor 3(C) [statutory factor 3592)(c)(11)] does not obviously include the specific
personal characteristics listed in 3(B) [non-statutory victim impact]. . . . In the context of considering the effect of the
crime on the victim’s family, it would be more natural to understand ‘personal characteristics’ to refer to those aspects
of the victim’s character and personality that her family would miss the most. More important, to the extent that there
was any ambiguity arising from how the factors were drafted, the Government’s argument to the jury made clear that
3(B) and 3(C) went to entirely different areas of aggravation—the former clearly went to victim vulnerability while the
latter captured the victim’s individual uniqueness and the effect of the crime on her family . . . As such, even if the
phrase ‘personal characteristics’ as used in factor 3(C) was understood to include the specific personal characteristics
listed in 3(B), the factors as a whole were not duplicative—at best, certain evidence was relevant to two different
aggravating factors. Moreover, any risk that the weighing process would be skewed w.as eliminated by the District
Court’s instruction that the jury ‘should not simply count the number of aggravating and mitigating factors and reach a
decision based on which number is greater [but rather] should consider the weight and value of each factor.’”).
184 Roof, 10 F.4th at 365 (involving “family, friends, and co-workers” of the victims); United States v. Runyon, 994
F.3d 192, 198 (4th Cir. 2021) (involving “family and friends” of the victim); United States v. Mikhel, 889 F.3d 1003,
1052 (9th Cir. 2018) (“[W]e agree with several of our sister circuits that have held that victim-impact evidence is not so
limited [to family]”) (citing Runyon, 707 F.3d at 499–501); United States v. Whitten, 610 F.3d 1678, 187–92 (2d Cir.
2010) (concluding testimony from victim’s colleagues on police force about professional accomplishments was
admissible); United States v. Bolden, 545 F.3d 609, 626 (8th Cir. 2008) (concluding testimony from victim’s friends,
coworkers, and pastor about his relationship with his girlfriend and career aspirations was admissible); United States v.
Battle, 173 F.3d 1343, 1348 (11th Cir. 1999) (concluding testimony from fellow correctional officers about impact to
victim’s murder on Atlanta prison was admissible). “Only the Tenth Circuit has adopted an arguably more restrictive
view: in United States v. Fields, it held that victim-impact evidence from a friend and coworker was admissible, but
was unwilling to extend the victim-impact inquiry further to ‘community-level consequences.’ 516 F.3d 923, 946–48
(10th Cir. 2008).”
185 Roof, 10 F.4th at 375 (quoting Payne, 501 U.S. at 830 n.2); United States v. Savage, 970 F.3d 217, 299–300 (3d Cir.
2020) (“[C]ourts have held victim-impact statements directly asking the jury for a death sentence violate the Eighth
Amendment, too. . . . That said, abstract pleas for justice, accountability or closure do not by themselves violate the
Eighth Amendment.”); United States v. Lighty, 616 F.3d 321, 361 (4th Cir. 2010); but see United States v. Davis, 609
F.3d 663, 684–85 (5th Cir. 2010) (concluding that victim impact testimony did not violate Davis’ due process rights,
where the prosecutor had emphasized the victim’s opinions about the defendant and the appropriate sentence and
defense counsel did not contemporaneously object: “In summation at the close of the selection phase, the prosecutor
returned to Jasmine’s testimony to argue the family wishes: ‘In simple and powerful words, she [Jasmine] told you that
life was too good for the defendant and she told you why. He didn’t have the decency to apologize.’”).
186 See, e.g., United States v. Whitten, 610 F.3d 168, 191 (2d Cir. 2010) (“Courts are reluctant to conclude that the jury
was unduly prejudiced by emotional testimony if the defendant presented mitigating factors that the jury found proven
and if the trial court warned the jury against returning a verdict based on emotion”).
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Future dangerousness: The non-statutory aggravating factor covering future dangerousness
appears with some regularity in cases in which the Justice Department elects to seek the death
penalty.187 “Future dangerousness is best defined as evidence that a defendant is ‘likely to commit
criminal acts of violence in the future that would be a threat to the lives and safety of others.’”188
Dangerousness may not be predicated on the defendant’s race or ethnicity.189 Instead, it is
evidenced by a pattern of violent acts or threats, coupled with a resistance to efforts to prevent the
violence or to rehabilitate the defendant,190 particularly when the defendant is associated with a
criminal gang.191 At least one court has indicated that a “finding . . . that the Bureau of Prisons
can safely and securely incarcerate [the defendant] for the rest of his life[] does not equate to a
finding that he poses no risk of future dangerousness.”192 The “dangerous” factor may be
problematic when proof of its existence takes the form of evidence of the defendant’s lack of
remorse—particularly when that unconstitutionally draws the jury’s attention to the defendant’s
exercise of either his right to a trial or his right not to testify.193 Establishing future dangerousness

187 E.g., United States v. Fackrell, 991 F.3d 589, 600–01 (5th Cir. 2021); United States v. Savage, 970 F.3d 217, 290
(3d Cir. 2020); United States v. Hall, 945 F.3d 1035, 1044 (8th Cir. 2019); United States v. Coonce, 932 F.3d 623,
637–38 (8th Cir. 2019); United States v. Aquart, 912 F.3d 1, 53–54 (2d Cir. 2018); United States v. Umana, 750 F.3d
320, 354–55 (4th Cir. 2014).
188 United States v. Basham, 561 F.3d 302, 331 (4th Cir. 2009) (quoting United States v. Bernard, 299 F.3d 467, 482
(5th Cir. 2002), and citing Simmons v. South Carolina, 512 U.S. 154, 162–63 (1994)).
189 Cf. Buck v. Davis, 580 U.S. 100, 119 (2017) (introduction of evidence connecting race and the likelihood of future
violence constituted ineffective assistance of counsel).
190 E.g., Savage, 970 F.3d at 291–93 (“Savage planned, coordinated, and directed the killing of seven people while
being held in federal prison . . . [He] orchestrated the Coleman house firebombing as retaliation for Eugene Coleman’s
cooperation with prosecutors. Two women, three children and one infant died as a result . . . All told, the jury learned
of Savage’s persistent efforts to thwart restrictions on his ability to communicate with the outside world, and the
extraordinary danger he posed if he succeeded in doing so.”); Coonce, 932 F.3d at 638 (“Defendant Coonce presents a
future danger to others based upon the probability that [he] could commit criminal acts of violence that would
constitute a continuing threat to the lives and safety of others. Defendant Coonce has engaged in a continuing pattern of
violent conduct, has demonstrated lack of remorse, and/or has demonstrated a low rehabilitation potential.”).
191 Fackrell, 991 F.3d at 596 (reflecting, among other indicia of future dangerousness, that “Fackrell was a lieutenant in
the Soldiers of Aryan Culture, a prison gang”); Umana, 750 F.3d at 333 (involving threat predicated in part on
“allegiance to MS-13.”); see also United States v. Snarr, 704 F.3d 366, 395 (5th Cir. 2013) (involving “membership in
a racist gang”); Bernard, 299 F.3d at 482 (involving “gang membership”).
192 Aquart, 912 F.3d at 53.
193 This may be less problematic when other evidence of danger is so prevalent as to render any error harmless, or when
a trial court issues curative jury instructions. See United States v. Whitten, 610 F.3d 168, 200–01 (2d Cir. 2010)
(“Wilson has adequately preserved both his Sixth and Fifth Amendment claims.... The prosecution cited two
constitutional elections made by Wilson—to go to trial and not to testify—as reasons to reject two of Wilson’s offered
mitigators: acceptance of responsibility and remorse. And the government then cited the lack of remorse as evidence of
an aggravating factor: Wilson’s future dangerousness.... Moreover, the focus on Wilson’s decision to elect a trial had an
uncontrollable resonance for the jury. After acknowledging Wilson’s ‘absolute right to go to trial,’ the government
suggested that if Wilson had accepted responsibility, he would not have ‘put the government to its burden of proof, to
prove he committed these crimes.’ Not incidentally, however, the burden thus placed on the prosecution to mount its
case placed a counterpart burden on the jurors to sit through it. These arguments were potent—no juror found that
Wilson accepted responsibility or showed remorse, and every juror found that Wilson presented a risk of future
dangerousness. On these facts, it is hard to see how the government can prove that these errors were harmless. Indeed,
the government’s emphasis on these arguments during summation suggests they were not harmless beyond a
reasonable doubt.”); but see United States v. Davis, 609 F.3d 663, 685–86 (5th Cir. 2010) (“Here, the prosecutor’s
comments ... were the only prosecutorial remarks which referred to Davis’s supposed lack of remorse.... In the context
of the prosecutor’s summation and the evidence overall, therefore, Davis’s rights were not affected by the isolated
remark.”); United States v. Caro, 597 F.3d 608, 627 (4th Cir. 2010) (“Caro argues that the government and district
court violated his Fifth Amendment privilege against self-incrimination by having the jury consider Caro’s failure to
speak words of remorse.... Given the court’s cautionary instruction and overwhelming information showing Caro’s lack
of remorse, we conclude that any error would have been harmless... ”); United States v. Mikos, 539 F.3d 706, 718 (7th
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by reference to unadjudicated crimes or other forms of misconduct seems more readily
accepted.194
Mitigating Factors
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.”195 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.196 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.197 Moreover, the prosecutor may question the weight

Cir. 2008) (“The prosecutor’s main theme was not the absence of a guilty plea, or Mikos’s silence ... in open court, but
the fact that Mikos had not done anything to reduce or redress the hurt his crimes had caused.”).
194 United States v. Corley, 519 F.3d 716, 724 (7th Cir. 2008) (“[E]very circuit to consider the issue has held that
unadjudicated conduct may be considered in the process of assessing aggravating factors, and many courts have
specifically recognized the relevance to the factor of future dangerousness”); see also United States v. Runyon, 707
F.3d 475, 505 (4th Cir. 2013).
195 Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
196 18 U.S.C. §§ 3592(a), 3593(c); e.g., United States v. Roof, 10 F.4th 314, 369 (4th Cir. 2021).
197 United States v. Mikhel, 889 F.3d 1003, 1062 (9th Cir. 2018) (“The Eighth Amendment and FDPA protect the right
to present relevant mitigating evidence in capital sentencing proceedings . . . ‘Relevant mitigating evidence is evidence
which tends logically to prove or disprove some fact or circumstances which a fact-finder could reasonably deem to
have mitigating value.’. . . Under the FDPA, ‘[i]nformation is admissible regardless of admissibility under the [Federal]
Rules [of Evidence], except that in the trial judge’s discretion, information ‘may be excluded if its probative value is
outweighed by the dangers of creating unfair prejudice, confusing the issues, or misleading the jury.’”) (quoting, inter
alia
, Tennard v. Dretke, 542 U.S. 274, 284 (2004), and United States v. Mitchell, 502 F.3d 931, 991 (9th Cir. 2007))
(alterations in original)); United States v. Lighty, 616 F.3d 321, 362–63 (4th Cir. 2010) (“Under the FDPA, in the
sentencing phase of the trial, mitigating evidence is ‘admissible regardless of its admissibility under the rules governing
admission of evidence at criminal trials.’ 18 U.S.C. §3593(c). This lenient standard affords a defendant the opportunity
to present mitigating evidence consistent with the Supreme Court’s directive that in capital cases the jury must ‘'not be
precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any
circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ... Lockett v. Ohio,
438 U.S. 586, 604 (1978) (plurality opinion) . . . This wide berth for the admission of mitigating evidence, however,
does not mean that the defense has carte blanche to introduce any and all evidence that it wishes. The district court has
the authority ‘to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the
circumstances of his offense.’ Lockett, 438 U.S. at 604 n.12. Moreover, under the FDPA, the district court has the
authority to exclude probative information during the penalty phase if ‘its probative value is outweighed by the danger
of creating unfair prejudice, confusing the issues, or misleading the jury.’ 18 U.S.C. § 3593(c).”); see also United
States v. Snarr, 704 F.3d 368, 400 (5th Cir. 2013).
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that a mitigating factor warrants.198 The jury is bound to consider any offered mitigating factor,
but it is not required to give it either weight or effect.199
Subsection 3592(a) of the Federal Death Penalty Act describes seven statutory mitigating 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.”200 The other seven cover:
1. Impaired capacity.201
2. Duress.202
3. Minor participation.203
4. Equally culpable, disparate punished defendants.204
5. No prior criminal record.205
6. Disturbance.206

198 United States v. Whitten, 610 F.3d 168, 184 n.6 (2d Cir. 2010) (“The Eighth Amendment forbids a capital
sentencing regime in which the jury is ‘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.’ Abdul-Kabir v. Quarterman, 550 U.S. 233, 247–48 (2007). According to Wilson, the prosecution’s
summations advised the jury that only defenses to the crime and the aggravating factors could be considered mitigating
evidence, that a death sentence should be imposed irrespective of the mitigation because a sentence of life without
parole was appropriate for certain less serious crimes, and that Wilson’s merciless conduct rendered him categorically
ineligible for mercy. On review, we ask whether there is a ‘reasonable likelihood that the jurors believed themselves to
be precluded from considering [the] mitigating evidence.’ United States v. Fell, 531 F.3d 197, 233 (2d Cir. 2008) . . . .
We see no such likelihood. First, the government’s summations deprecated the weight of the mitigating evidence,
explained why a life sentence is insufficient, and argued that the victim impact evidence militated against mercy; but
the government’s summations did not urge the jury to ignore mitigation and repeatedly instructed the jury to consider
every mitigating factor. Second, the final jury charge in the penalty phase instructed the jurors to consider the
mitigating evidence broadly. Third, the jury heard several days of testimony concerning mitigation, and the prosecution
extensively argued the weight of that evidence: It is improbable the jurors believed that the parties were engaging in an
exercise in futility all that time.”).
199 United States v. Hall, 945 F.3d 1035, 1042 (8th Cir. 2019).
200 18 U.S.C. § 3592(a)(8); United States v. Roof, 10 F.4th 314, 369 (4th Cir. 2021) (determining claim that the
defendant would find a sentence other than death onerous is not a permissible mitigating factor);United States v.
Umana, 750 F.3d 320, 350 (4th Cir. 2014) (concluding the district court did not abuse its discretion by holding that
§ 3592(a)(8) did not require admission of evidence of other murders committed by the defendant’s associates, offered
in mitigation to show that the defendant’s conduct was a “product of social conformity”).
201 18 U.S.C. § 3592(a)(1) (“The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to
conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so
impaired as to constitute a defense to the charge.”).
202 18 U.S.C. § 3692(a)(2) (“The defendant was under unusual and substantial duress, regardless of whether the duress
was of such a degree as to constitute a defense to the charge.”).
203 18 U.S.C. § 3592(a)(3) (“The defendant is punishable as a principal in the offense, which was committed by
another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as
to constitute a defense to the charge.”).
204 18 U.S.C. §3592(a)(4) (“Another defendant or defendants, equally culpable in the crime, will not be punished by
death.”); United States v. Fackrell, 991 F.3d 589, 608 (5th Cir. 2021) (“[N]othing in the statute nor case law . . .
commands district courts to permit mitigating evidence about co-defendants from other trials.”); United States v.
Gabrion, 719 F.3d 511, 524 (6th Cir. 2013) (“This factor does not measure the defendant’s culpability itself, but instead
considers – as a moral data point – whether the same level of culpability, for another participant in the same criminal
event, was thought to warrant a sentence of death.”); e.g., United States v. Runyon, 707 F.3d 475, 487 (4th Cir. 2013).
205 18 U.S.C. § 3592(a)(5) (“The defendant did not have a significant prior history of other criminal conduct.”); e.g.,
Runyon, 707 F.3d at 487.
206 18 U.S.C. § 3592(a)(6) (“The defendant committed the offense under severe mental or emotional disturbance.”).
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7. Victim’s consent.207
The Department of Justice’s Justice Manual provides examples of non-statutory mitigating
factors, including:
i. Defendants with intellectual limitations not rising to the criteria for an intellectual disability
diagnosis (as intellectual disability renders a defendant ineligible for capital punishment);
ii. Defendants with documented severe mental illness;
iii Defendants with limited criminal history;
iv. Defendants who suffered particularly damaging childhoods;
v. Youthful defendants;
vi. Defendants who demonstrate an ability to be incarcerated without posing an undue threat
to prison staff and other inmates; and
vii. Defendants who have accepted responsibility as demonstrated by a willingness to plead
guilty and accept a non-death sentence, proportional to the crime committed.208
The defendant is not entitled to mitigating consideration of “residual doubt” of his guilt.209
Nevertheless, mitigation is not confined to factors related to the murder, “but need only allow the
sentencer to reasonably find that it warrants a sentence less than death.”210 Defendants have
accordingly been allowed to present a wide range of non-statutory mitigation factors.211

207 18 U.S.C. § 3592(a)(7) (“The victim consented to the criminal conduct that resulted in the victim’s death.”).
208 JM § 9–10.140 B.3. (Jan. 2023).
209 United States v. Rodriguez, 581 F.3d 775, 814–15 (8th Cir. 2009) (“The Supreme Court has declined to require
‘residual doubt’ instructions at sentencing. In Franklin v. Lynaugh, Justice White, writing for four Justices, explained:
‘Our edict that, in a capital case, the sentencer ... [may] 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, [citation omitted] . . . in no way
mandates reconsideration by capital juries, in the sentencing phase, of their ‘residual doubts’ over a defendant’s guilt.
Such lingering doubts are not over any aspect of petitioner’s ‘character,’ ‘record,’ or a ‘circumstance of the offense.’
This Court’s prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts
considered as a mitigating factor.’ Franklin v. Lynaugh, 487 U.S. 164, 174 (1988). Justice O'Connor’s concurring
opinion in Franklin, joined by Justice Blackmun, also doubts the constitutional basis of a “residual doubt” instruction....
Id. at 188 (O’Connor, J. concurring) (citations omitted). Franklin addressed the constitutional claim in favor of a
‘residual doubt’ instruction, rather than an argument based on § 3592(a). The Justices’ reasons for declining to
recognize a constitutional rule apply with equal force the FDPA. Residual doubt is not a mitigating circumstance of the
defendant or of the offense. Rather, residual doubt, if it exists, highlights the difficulty of ever proving anything with
complete certainty. Section 3592(a) does not require a district court to grant such an instruction at sentencing, and the
district court here did not abuse its discretion by rejecting Rodriguez’s request.”); see also United States v. Jackson,
549 F.3d 963, 981(5th Cir. 2008) (“We find no error in the denial of Jackson’s request for a jury instruction on residual
doubt.... [E]ven if we assume some right to consideration of residual doubt, the trial court placed no limitation
whatsoever on Jackson’s opportunity to press the residual doubts question with the sentencing jury.”); United States v.
Corley, 519 F.3d 716, 729–30 (7th Cir. 2008) (“The jury in this case already heard any evidence introduced at trial
casting doubt on his guilt, and therefore it is difficult to envision how denying a residual doubt argument could be
reversible error. We need not decide that, however, because Corley raises no challenge on appeal related to residual
doubt as to the offense of conviction”); cf., United States v. Gabrion, 719 F.3d 511, 525 (6th Cir. 2013) (“The exclusion
of Gabrion’s residual-doubt argument was harmless beyond a reasonable doubt.”).
210 United States v. Fell, 531 F.3d 197, 222 (2d Cir. 2008).
211 Jones v. United States, 527 U.S. 373, 378–79 n.4 (1999) (identifying the 10 mitigating factors considered by the
jury); United States v. Runyon, 707 F.3d 475, 487 (4th Cir. 2013) (“The jury also unanimously found that Runyon had
established seven of the fourteen mitigators proposed by the defense.”); United States v. Basham, 561 F.3d 302, 315
(4th Cir. 2009) (“In mitigation, Basham offered six statutory and thirty non-statutory factors.”); United States v.
Bolden, 545 F.3d 609, 627 (8th Cir. 2008) (“The district court placed few limits on Bolden’s mitigating evidence; he
argued thirty-two mitigating factors to the jury”); United States v. Caro, 102 F. Supp. 3d 813, 825 (W.D. Va. 2015)
(“[T]he jury unanimously found that 12 mitigating factors proposed by the defense had been proved.”).
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Childhood hardships, remorse, and impact of the execution on the defendant’s family are among
the more common.212 Yet, a jury’s capital sentencing decision will not always be undone by the
trial court’s erroneous failure to admit mitigating evidence. The sentence will stand if the error is
harmless, that is, if the result would have been the same had the evidence been admitted.213
Treason
Treason is also a federal capital offense. The Constitution defines treason and authorizes
Congress to set its punishment:
Treason against the United States, shall consist only in levying War against them, or in adhering
to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless
on the testimony of two Witnesses to the same overt Act, or on Confession in open court. The
Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.214
18 U.S.C. § 3591 lists treason as a capital offense.215
Treason is punishable by death or imprisonment for not less than five years and a fine of not less
than $10,000,216 nor more than the higher of $250,000 or twice the amount of the pecuniary gain
or loss associated with the offense.217
Aggravating and Mitigating Factors
The death penalty for treason may only be imposed upon conviction and a finding of one or more
of the statutory aggravating factors, and a determination that the aggravating factors outweigh any
mitigating factors.218
The statutory 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

212 Jones, 527 U.S. at 378–79; United States v. Whitten, 610 F.3d 168, 177 (2d Cir. 2010) (“Wilson’s affirmative case
in the sentencing phase focused on mitigating factors relating to his Dickensian upbringing .... The defense also called
members of Wilson’s family to testify about his loving relationship with them, and how they would suffer if he is
executed.... The defense received permission for Wilson to read aloud an allocution of remorse.”); United States v.
Williams, 610 F.3d 271, 279 n.9 (5th Cir. 2010); but see United States v. Snarr, 704 F.3d 368, (5th Cir. 2013)
(“Because such evidence ‘does not reflect on the defendant’s background or character or the circumstances of his
crime, the Supreme Court has never included friend/family impact testimony among the categories of mitigating
evidence that must be admitted during a criminal trial. Accordingly, this court consistently has affirmed exclusion of
execution impact testimony similar to that proffered by Garcia. [Although some courts evidently permit execution
impact testimony, see Wright v Bell, 691 F.3d 586, 597–98 (6th Cir. 2010); Sinisterra v. United States, 600 F.3d 900,
909–10 (8th Cir. 2010), none appear to require it]”) (footnote 20 of the court’s opinion on brackets); United States v.
Umana, 750 F.3d 320, 355 (4th Cir. 2014) (“Umana argues that he should have been allowed to submit evidence
regarding the impact that his execution would have on his wife and child.... Allowing a capital defendant to argue
execution impact as a mitigator is improper.”).
213 18 U.S.C. § 3595(c)(2) (“The court of appeals shall not reverse or vacate a sentence of death on account of any
error which can be harmless, including any erroneous specific finding of an aggravating factor, where the government
establishes beyond a reasonable doubt that the error was harmless.”); United States v. Troya, 733 F.3d 1125, 1138
(11th Cir. 2013) (“[T]he evidence against Troya in the present case was ‘so overwhelming’ that the exclusion of Dr.
Cunningham’s lack of future dangerousness testimony was harmless beyond a reasonable doubt.”) (citing Harrington v.
California, 395 U.S. 250, 254 (1969)).
214 U.S. CONST. art. III, § 3.
215 18 U.S.C. § 3591(a)(1).
216 Id. § 2381.
217 Id. §§ 3559(a)(1), 3571(b), (d).
218 Id. § 3593(e).
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culpable but less severely punished defendants; absence of prior criminal record; mental
disturbance; victim consent; and any other mitigating factor relating to the offender or the
offense.219
Different statutory aggravating factors apply in treason and espionage cases. The aggravating
factors are four: prior treason or espionage conviction;220 grave risk to national security;221 grave
risk of death;222 and “any other aggravating factor.”223
As mentioned earlier, The DOJ Justice Manual provides examples of non-statutory aggravating
and non-statutory mitigating factors with mentioning any limitation based on the type of capital
offense involved.
Constitutional Threshold
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.224 The Court in
Kennedy v. Louisiana specifically distinguished this class of crimes from those involving violence
against individuals.225 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).226
Treason is the crime of which the Founding Fathers were most leery—so uneasy that they
inserted a narrow definition and procedural safeguards in the Constitution itself: “Treason against
the United States, shall consist only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open Court.”227

219 Id. § 3592(a).
220 Id. § 3592(b)(1) (“The defendant has previously been convicted of another offense involving espionage or treason
for which a sentence of either life imprisonment or death was authorized by law.”).
221 Id. § 3592(b)(2) (“In the commission of the offense the defendant knowingly created a grave risk of substantial
danger to the national security.”).
222 Id. § 3592(b)(3) (“In the commission of the offense the defendant knowingly created a grave risk of death to another
person.”).
223 Id. § 3592(b) (“The jury, or if there is no jury, the court, may consider whether any other aggravating factor for
which notice has been given exists”).
224 Sarah Frances Cable, An Unanswered Question in Kennedy v. Louisiana: How Should the Supreme Court
Determine the Constitutionality of the Death Penalty for Espionage?
70 LA. L. REV. 995 (2010); Ryan Norwood, None
Dare Call It Treason: The Constitutionality of the Death Penalty for Peace Time Espionage
, 87 CORNELL L. REV. 820
(2002); Eric Pinkard, The Death Penalty for Drug Kingpins: Constitutional and International Implications, 24 VT. L.
REV. 1 (1999); James G. Wilson, Chaining the Leviathan: The Unconstitutionality of Executing Those Convicted of
Treason
, 45 U. PITTS. L. REV. 99 (1983).
225 Kennedy v. Louisiana, 554 U.S. 407, 437 (2008) (“Our concern here is limited to crimes against individual persons.
We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity,
which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be
expanded to instances where the victim’s life was not taken.”).
226 Id. at 439–40.
227 U.S. CONST. art. III, §3, cl.1. See generally, James Willard Hurst, THE LAW OF TREASON IN THE UNITED STATES:
COLLECTED ESSAYS (1945); Bradley Chapin, THE AMERICAN LAW OF TREASON: REVOLUTIONARY AND EARLY NATIONAL
ORIGINS (1964).
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Congress made treason a capital offense in the very first Congress, and so it has remained
throughout.228 Congress ensured its status as a capital offense when it revived the death penalty in
1994.229 Treason is a state crime in at least 23 states,230 and a capital offense in 10 of those.231
State prosecutions are virtually unheard of, however.232 Federal treason prosecutions, never
numerous, have become particularly uncommon. There were 35 federal treason cases prior to
World War II; 11 arose out of that conflict, and apparently there has been 1 since then.233
Thus, the Supreme Court has had no occasion to pass upon the constitutionality of capital
punishment in a treason case since Furman. The Court, however, had previously handed down
decisions in four treason cases. In the first, Ex parte Bollman, the Court granted habeas corpus
relief on the ground that there was insufficient evidence to hold the petitioners on a charge of
treason.234 In the second, Cramer v. United States, the Court overturned the petitioner’s treason
conviction on the ground that the overt acts upon which it was based were insufficient, either
because the overt acts did not show treasonous intent or because they lacked the support of two
witnesses upon which the Constitution insists.235 The Court affirmed the treason convictions in
Haupt v. United States236 and Kawakita v. United States.237 None of the treasonous acts by
Kawakita or Haupt involved the death of a victim.238

228 1 STAT. 112 (1790); REV. STAT. § 5332 (1878); Conspiracy Act (Offenses Against U.S.), Pub. L. No. 60–350 § 2, 35
STAT. 1088 (1909); Crimes and Criminal Procedure, Pub. L. No. 80–772, § 2381, 62 STAT. 683 (1948); 18 U.S.C. §
2381.
229 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322 § 60002(a), 108 STAT. 1796; 18
U.S.C. § 3591.
230 ALA. CODE §§ 13A-11-2, 13A-5-40; ARK. CODE ANN. § 5-51-201; CAL. PENAL CODE § 37; COLO. REV. STAT. ANN.
§§ 18-11-101, 18-1.3.401; FLA. STAT. ANN. §§ 876.32, 775.082; GA. CODE § 16-11-1; ILL. COMP. STAT. ANN. ch. 720 §
5/30-1; KAN. STAT. ANN. §§ 21-5901, 21-6806; MASS. GEN. LAWS ANN. ch. 264 §§ 1, 2; MICH. COMP. LAWS ANN. §
750.544; MINN. STAT. ANN. § 609.385; MISS. CODE ANN. § 97-7-67; MO. ANN. STAT. §§ 576.070, 557.021; NEV. REV.
STAT. ANN. § 196.010; N.D. CENT. CODE §§ 12.1-07-01, 12.1-32-01; ORE. REV. STAT. § 166.005; R.I. GEN. LAWS § 11-
43-1; VT. STAT. ANN. tit.13 § 3401; VA. CODE §§ 18.2-481, 18.2-10; WASH. REV. CODE ANN. § 9.82.010; W.VA. CODE
ANN. §§ 61-1-1, 61-1-2; WIS. STAT. ANN. §§ 946.01, 939.50.
231 ARK. CODE ANN. § 5-51-201; CAL. PENAL CODE § 37; COLO. REV. STAT. ANN. §§ 18-11-101, 18-1.3.401; GA. CODE
§ 16-11-1; ILL. COMP. STAT. ANN. ch. 720 § 5/30-1; MISS. CODE ANN. § 97-7-67; VT. STAT. ANN. tit.13 § 3401; WASH.
REV. CODE ANN. § 9.82.010.
232 The last person executed for treason in the United States appears to have been hanged following a state conviction.
See, James G. Wilson, Chaining the Leviathan: The Unconstitutionality of Executing Those Convicted of Treason, 45
U. PITT. L. REV. 99, 156 (1983) (“Nobody has been executed for treason since John Brown in 1859”). The abolitionist
John Brown was hanged after his raid on Harpers Ferry and conviction in Virginia state court for murder, slave
insurrection, and treason against the Commonwealth of Virginia, 4 ENCYCLOPAEDIA BRITANNICA 285 (1972).
233 Paul T. Crane, Did the Court Kill the Treason Charge?: Reassessing Cramer v. United States and Its Significance,
36 FLA. ST. U. L. REV. 635, 636-39 & n.13 (2009) (citing inter alia, James Willard Hurst, THE LAW OF TREASON IN THE
UNITED STATES: COLLECTED ESSAYS (1971)). See also Cramer v. United States, 325 U.S. 1, 25 n.38 (1944) (citing from
the government’s brief earlier cases construing the treason clause in the Constitution.) The only post-WWII case
involves the treason indictment of Adam Gadahn, DOJ Press Release, U.S. Citizen Indicted on Treason, Material
Support Charges for Providing Aid and Comfort to al Qaeda
(October 11, 2006), http://www.justice.gov/opa/pr/2006/
October/06_nsd_695.html. He was later killed in a drone strike on an al-Qaeda encampment in Pakistan,
https://www.reuters.com/article/cnews-us-usa-security-gadahn-idCAKBN0NF0ZL20150424.
234 8 U.S. (4 Cranch) 75, 135 (1807).
235 325 U.S. 1, 37–8, 48 (1945).
236 330 U.S. 631, 644 (1947).
237 343 U.S. 717, 747 (1952).
238 Haupt, 303 U.S. at 632–33 (Haupt, sentenced to life imprisonment, was “the father of Herbert Haupt, one of the
eight saboteurs convicted by a military tribunal, See Ex parte Quirin, 317 U.S. 1 (1942). Sheltering his son, assisting
him in getting a job, and in acquiring an automobile, all alleged to be with knowledge of the son’s mission, involved
(continued...)
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The existing federal statute likewise permits capital punishment even in a deathless treason
case.239 Yet, it reserves the death penalty for those defendants who have previously been
convicted of treason, or who, in the commission of the offense, have created either a grave risk of
death or a grave risk of substantial danger to national security, or whose case presents some
similar aggravating circumstance.240 It remains to be seen whether this is enough or even whether
treason cases are subject to the same manner of Eighth Amendment analysis as the state violence
cases.
It might be a close question under the elements of the tests mentioned in Kennedy. Executive
officials have virtually abandoned recourse to treason prosecutions, but inclusion in the 1994
revival belies the suggestion that capital punishment in all treason cases is commonly considered
excessive. The dearth of modern treason prosecutions might be attributed to the ability to
prosecute treasonous conduct as other crimes, crimes whose prosecutions come without the
evidentiary hurdles of a treason case.241 On other hand, most of those crimes are not capital
offenses.242 The only exception, the espionage statute, dates from a time before treason
prosecutions had become passé, although Congress made it a death-eligible offense when it
revived capital punishment as a sentencing option in 1994.243
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.244 The national security factor
might be considered a bit too open ended,245 but that defect, if it is one, might be cured by jury
instruction or appellate construction.246 Of the three—treason, espionage, and murder-less drug

defendant in the treason charge,”); Kawakita, an American with dual citizenship living in Japan when the war broke
out, was convicted and sentenced to death on the basis of his assaults and other abuse of prisoners of war used as slave
labor by the private defense contractor by whom Kawakita was employed as a translator, Kawakita v. United States,
343 U.S. at 737–40. President Eisenhower commuted Kawakita’s sentence to life imprisonment; President Kennedy
later pardoned him on the condition that he leave the United States, “Meatball” Kawakita Ordered Freed in One of
Kennedy’s Last Actions
, L.A. TIMES, November 29, 1963, at 1.
239 18 U.S.C. §§ 2381, 3591.
240 Id. §§ 592(b), 3593(d).
241 E.g., id. §§ 2383 (rebellion or insurrection), 2384 (seditious conspiracy), 2339A (providing material support for
terrorist offenses), 2339B (providing material support to designated foreign terrorist organizations), 794 (espionage).
242 E.g., id. §§ 2383 (rebellion or insurrection) (maximum penalty: imprisonment for not more than 10 years), 2384
(seditious conspiracy) (maximum penalty: imprisonment for not more than 20 years), 2339A (providing material
support for terrorist offenses) (maximum penalty: imprisonment for not more than 15 years; imprisonment for any term
of years or for life, if death results), 2339B (providing material support to designated foreign terrorist organizations)
(maximum penalty: imprisonment for not more than 20 years; imprisonment for any term of years or for life, if death
results), 794 (espionage)(maximum penalty: death or imprisonment for any term of years or for life).
243 Violent Crime Control and Law Enforcement Act of 1994, § 60002(a), 108 STAT. 1959; 18 U.S.C. § 3591.
244 18 U.S.C. § 3592(b) (prior espionage or treason conviction, grave risk to national security, or grave risk of death).
245 18 U.S.C. § 3592(b) (“Aggravating Factors for Espionage and Treason—In determining whether a sentence of death
is justified for an offense described in section 3591(a)(1), the jury, or if there is no jury, the court, shall consider each of
the following aggravating factors for which notice has been given and determine which, if any, exist: ... (2) Grave risk
to national security. In the commission of the offense the defendant knowingly created a grave risk of substantial
danger to the national security.”).
246 Lambrix v. Singletary, 520 U.S. 518, 530–31 (1997); see also Jones v. United States, 527 U.S. 373, 401 & n.15
(1999) (“Ensuring that a sentence of death is not so infected with bias or caprice is our controlling objective when we
examine eligibility and selection factors for vagueness. Our vagueness review, however, is quite deferential. As long as
an aggravating factor has a core meaning that criminal juries should be capable of understanding, it will pass
constitutional muster.... We reiterate the point we made in Tuilaepa—we have held only a few, quite similar factors
vague, see, e.g., whether murder was ‘especially heinous, atrocious, or cruel,’ while upholding numerous other factors
against vagueness challenges.”) (internal citations omitted).
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kingpin offenses—commentators seem to consider treason the most likely to survive
constitutional scrutiny.247
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.248 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.249 Third, it is a
capital offense to communicate national defense information to the enemy in time of war.250 The
statutory aggravating and mitigating factors are the same as those used in treason cases.251
Constitutional Threshold
The existing federal espionage statute, 18 U.S.C. § 794, permits capital punishment in espionage
cases in the absence of a death as well. Treason and espionage are alike in some respects. Both

247 E.g., Ryan Norwood, None Dare Call It Treason: The Constitutionality of the Death Penalty for Peacetime
Espionage
, 87 CORNELL L. REV. 820, 851 (2002) (“Subjectively, espionage fails to measure up the standards of
inherent moral depravity and injury involved with the capital crimes of murder and treason.... [E]spionage, even when
jeopardizing the national security, does not involve a betrayal as dangerous or as harmful as that required of treason”);
James G. Wilson, Chaining the Leviathan: The Unconstitutionality of Executing Those Convicted of Treason, 45 U.
PITT. L. REV. 99, 179 (1983) (“Most of us dread the midnight knock on the door; we do not want to confront our own
police, much less an invading army or armed revels. Nobody can know which fear is more likely to be realized: the use
of executions to destroy political opposition or the defeat of the country because it could not kill its enemies.”).
248 18 U.S.C. §§ 3591(a)(1); 794(a) (“Whoever, with intent or reason to believe that it is to be used to the injury of the
United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate,
deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign
country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee,
subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to
the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the
sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense
resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance
Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual
...”).
249 18 U.S.C. §§ 3591(a)(1), 794(a) (“Whoever, with intent or reason to believe that it is to be used to the injury of the
United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate,
deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign
country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee,
subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to
the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the
sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense ...
directly concerned 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.”).
250 18 U.S.C. §§ 3591(a)(1), 794(b) (“Whoever, in time of war, with intent that the same shall be communicated to the
enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the
movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials
of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military
operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification
or defense of any place, or any other information relating to the public defense, which might be useful to the enemy,
shall be punished by death or by imprisonment for any term of years or for life.”).
251 18 U.S.C. §§ 3592(a), (b).
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are offenses against the nation, against the citizens of United States collectively rather than
individually. Perhaps neither is appropriately measured by the Kennedy standards for that reason.
Nevertheless, their marks under a Kennedy analysis are not the same. Espionage is of
comparatively recent vintage. Section 794 has continued relatively unchanged since its enactment
in the Espionage Act of 1917, with two significant modifications.252
Until 1954 when Congress made peace time espionage a capital offense, espionage was only
punishable by death when committed in time of war.253 In 1994, Congress restricted capital
punishment as a sentencing option in peace time to instances involving a death or more limited
range of protected government information.254

252 The Espionage Act of 1917, Pub. L. No. 65–24 § 2, 40 STAT. 217. See generally, Harold Edgar & Benno C.
Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 929 (1973); CRS
Report R41404, Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, by Stephen
P. Mulligan and Jennifer K. Elsea (2023).
253 Espionage and Sabotage Act of 1954, § 201, 58 Stat. 1219. In its original form, peace-time espionage was
punishable by imprisonment for not more than 20 years, 18 U.S.C. § 794 (1952).
254 Violent Crime Control and Law Enforcement Act of 1994, § 60003(a)(2), 18 U.S.C. § 794 (1994 ed.) (“except that
the sentence of death shall not be imposed unless ... the offense resulted in the identification by a foreign power ... of an
individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned
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.”).
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Unlike treason, there are few state espionage statutes.255 Section 794 prosecutions occur with
some regularity,256 but the last espionage execution apparently took place in 1953.257 Moreover,
“[t]he death penalty jurisprudence for espionage is virtually nonexistent.”258

255 One state, South Carolina, has an espionage-like statute that it does not characterize as espionage, S.C. Code § 25-7-
20 (“(A) It is unlawful for a person, for the purpose of obtaining information respecting the national or state defense
with intent or reason to believe that the information to be obtained is to be used to the injury of the United States or this
State or to the advantage of a foreign nation to: (1) go upon, enter, fly over, or otherwise obtain information concerning
any: (a) vessel, aircraft, work of defense, navy yard, naval base, submarine base, coaling station, fort, battery, torpedo
station, dockyard, canal, railroad, arsenal, camp, factory, mine, telephone, telegraph, wireless or signal station,
building, office, or other place connected with the national or state defense owned or constructed or in progress of
construction by the United States or any of its officers or agents within this State or by this State or any of its
subdivisions or agencies; or (b) place in this State in which any vessel, aircraft, arms, munitions, or other materials or
instruments for use in time of war are being made, prepared, repaired, or stored under any contract or agreement with
the United States or with a firm on behalf of the United States;
“(2) copy, take, make, or obtain or attempt, induce, or aid another to copy, take, make, or obtain any sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national or state defense;
“(3) receive or obtain from a person or from any source whatsoever any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note of anything
connected with the national or state defense knowing or having reason to believe, at the time he receives, obtains,
agrees, attempts, induces, or aids another to receive or obtain it that it has been or will be obtained, taken, made, or
disposed of by a person contrary to the provisions of this chapter.
“(B) It is unlawful for a person to: (1) have possession of, access to, control over, or be entrusted with, any document,
writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument,
appliance, or note relating to the national or state defense and wilfully communicate, transmit, or attempt to
communicate or transmit the same to a person not entitled to receive it or wilfully retains the same and fails to deliver it
on demand to the officer or employee of the United States or this State, entitled to receive it;
(2) be entrusted with or have lawful possession or control of any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, note, or information relating to the national defense or
state defense through gross negligence permits the same to be removed from its proper place of custody or delivered to
anyone in violation of his trust or to be lost, stolen, obstructed, or destroyed.
“(C) A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be
fined not more than ten thousand dollars or imprisoned not more than three years, or both”).
A second state, New Mexico, authorizes state courts martial to impose the death penalty for espionage when committed
by members of its National Guard, N. MEX. STAT. ANN. § 20-12-42.
Many states do have trade secret protection statutes that use the term “espionage,” but they more closely resemble the
federal trade secrets section, 18 U.S.C. § 1832, than the federal economic espionage provisions, 18 U.S.C. § 1831, and
are otherwise in no way comparable to 18 U.S.C. § 794, see e.g., ALA. CODE §§ 8-27-1 to 8-27-6; ARK. CODE ANN. §§
4-75-601 to 4-75-607; CAL. CIVIL CODE §§ 3426.1 to 3426.9; COLO. REV. STAT. ANN. §§7-74-101 to 7-74-110; FLA.
STAT. ANN. §§ 688.001 to 688.009; GA. CODE §§ 10-1-760 to 10-1-767; ILL. COMP. STAT. ANN. ch. 765 §§ 1065/1 to
1065/9; LA. REV. STAT. ANN. §§ 51:1431 to 51:1439; MICH. COMP. LAWS ANN. §§ 445.1901 to 445.1910; MINN. STAT.
ANN. §§ 325C.01 to 325C.08; MISS. CODE ANN. §§ 75-26-1 to 75-26-19; MONT. CODE ANN. §§ 30-14-401 to 30-14-
409; NEV. REV. STAT. ANN. §§ 600a.010 to 600a.100; N.D. CENT. CODE §§ 47-25.1-01 to 47-25.1-08; ORE. REV. STAT.
§§ 646.461 to 646.475; R.I. GEN. LAWS §§ 6-41-1 to 6-41-11; S.D. CODIFIED LAWS §§ 37-29-1 to 37-29-11; VT. STAT.
ANN. tit. 9 §§ 4601 to 4609; VA. CODE §§59.1-336 to 59.1-343; WASH. REV. CODE ANN. §§ 19.108.010 to 19.108.930;
W.VA. CODE ANN. §§ 47-22-1 to 47-22-10.
256 See, e.g., United States v. Mallory, 40 F.4th 166 (4th Cir. 2022); United States v. Gowadia, 760 F.3d 989 (9th Cir.
2014); United States v. Campa, 529 F.3d 980 (11th Cir. 2008); United States v. Pollard, 416 F.3d 48 (D.C. Cir. 2005);
United States v. Pitts, 176 F.3d 239 (4th Cir. 1999); United States v. Schulte, 578 F. Supp. 3d 596 (S.D.N.Y. 2020);
United States v. Hoffman, 995 F. Supp. 2d 555 (E.D. Va. 2014); United States v. Regan, 228 F .Supp. 2d 742 (E.D. Va.
2002); Ames v. United States, 155 F. Supp. 2d 525 (E.D. Va. 2000).
257 Sarah Frances Cable, An Unanswered Question in Kennedy v. Louisiana: How Should the Supreme Court
Determine the Constitutionality of the Death Penalty for Espionage?
70 LA. L. REV. 995, 996 (2010) (“If he had been
given the death penalty, Regan would have been the first person executed for espionage in the United States since
Julius and Ethel Rosenberg were put to death for conspiring to transmit secrets to the former Soviet Union in 1953.”).
258 Id. at 1013 (citing two pre-Furman cases, United States v. Rosenberg, 195 F.2d 583, 608 n.34 (2d Cir. 1952) and
United States v. Harper, 729 F.2d 1216, 1226 (9th Cir. 1984)).
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Nevertheless, treason and espionage differ by nature from murder or rape. Society punishes
murder or rape as an offense against an individual whom it is obligated to protect. Society
punishes treason or espionage as an offense against all those whom it is obligated to protect. The
distinction may be critical.259
Drug Kingpin (Continuing Criminal Enterprise)
Murder committed in furtherance of a drug kingpin (continuing criminal enterprise) offense is a
capital crime.260 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.261 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).262
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,263 or if it involves the use
of attempted murder to obstruct an investigation or prosecution of the offense.264

259 Id. at 1020 (“The Eighth Amendment analysis in Kennedy is easily applied to capital punishment statutes for
espionage. The considerations remain the same, but the analytic factors change with the criminal context. In Kennedy,
the crime of child rape was compared to murder, and espionage can be compared to treason and terrorism to determine
the proportional Eighth Amendment punishment.”).
260 21 U.S.C. § 848(e), 18 U.S.C. § 3591(a)(2).
261 21 U.S.C. § 848(c).
262 21 U.S.C. § 848(b) (“Any person who engages in a continuing criminal enterprise shall be imprisoned for life and
fined in accordance with subsection (a) of this section, if—(1) such person is the principal administrator, organizer, or
leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2)(A) the
violation referred to in subsection (c)(1) of this section involved at least 300 times the quantity of a substance described
in subsection 841(b)(1)(B) of this title, or (B) the enterprise, or any other enterprise in which the defendant was the
principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts
during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance
described in section 841(b)(1)(B) of this title”).
263 18 U.S.C. § 3591(b)(1). (“A life sentence may be imposed in cases involving 300 times the following controlled
substance quantities: (i) 100 grams or more of a mixture or substance containing a detectable amount of heroin; (ii) 500
grams or more of a mixture or substance containing a detectable amount of—(I) coca leaves, except coca leaves and
extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II)
cocaine, its salts, optical and geometric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers,
and salts of isomers; or (IV) any compound, mixture, or preparation which contains any quantity of any of the
substances referred to in subclauses (I) through (III); (iii) 28 grams or more of a mixture or substance described in
clause (ii) which contains cocaine base; (iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more of a
mixture or substance containing a detectable amount of phencyclidine (PCP); (v) 1 gram or more of a mixture or
substance containing a detectable amount of lysergic acid diethylamide (LSD); (vi) 40 grams or more of a mixture or
substance containing a detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4- piperidinyl ] propanamide or 10
grams or more of a mixture or substance containing a detectable amount of any analogue of N- phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide; (vii) 100 kilograms or more of a mixture or substance containing a detectable
amount of marihuana, or 100 or more marihuana plants regardless of weight; or (viii) 5 grams or more of
methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing
a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.”) The threshold for a capital offense
would be 600 times these quantities or gross receipts of $20 million per year.
264 18 U.S.C § 3591(b)(2) (“A defendant who has been found guilty of ... (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
(continued...)
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Aggravating and Mitigating Factors
The drug kingpin capital offense comes with its own aggravating factors, that is, the defendant
has previously been convicted of a capital offense, a serious drug trafficking felony, or multiple
drug and violent offenses; the offense involved the use of a firearm or a juvenile; the offense
involved distribution to a child or near a school; or the offense involved potentially lethal
adulterants; or some other aggravating factor.265 Its mitigating factors are those that come with
treason, espionage, or murder.266
Constitutional Threshold
The continuing criminal enterprise (drug kingpin) capital punishment provisions differ from
“ordinary” crime by degree rather than by nature. Drug trafficking, like treason and espionage, is
a federal capital offense that the Supreme Court elected to distinguish in Kennedy.267 Punishment
is cruel and unusual when legislatures have rejected it; prosecutors have ignored it; juries have
refused to impose it; and the courts have found it incompatible with their precedents.268 The
evidence in support of a capital drug trafficking offense is mixed.
Drug trafficking is a crime in every state.269 In 1988, Congress established the drug kingpin
violations as a capital offense when the crime involved a killing.270 Then, in 1994, Congress

under that section, where the defendant is a principal administrator, organizer, or leader of such an enterprise, and the
defendant, in order to obstruct the investigation or prosecution of the enterprise or an offense involved in the enterprise,
attempts to kill or knowingly directs, advises, authorizes, or assists another to attempt to kill any public officer, juror,
witness, or members of the family or household of such a person, shall be sentenced to death if, after consideration of
the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that
imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18
years of age at the time of the offense.”).
265 18 U.S.C. §§ 3592(d), 3593(d).
266 Id. § 3592(a).
267 Kennedy v. Louisiana, 554 U.S. 407, 437 (2008) (“Our concern here is limited to crimes against individual persons.
We do not address, for example, crimes defining treason, espionage, terrorism, and drug kingpin activity, which are
offenses against the State.”).
268 Id. at 421 (“In these cases the Court has been guided by ‘objective indicia of society’s standards, as expressed in
legislative enactments and state practice with respect to executions.’ The inquiry does not end there, however.
Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well
upon the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the
Eighth Amendment’s text, history, meaning, and purpose.”) (internal citations omitted).
269 ALA. CODE §§ 13A-12-231 to 13A-12-233; ALASKA STAT. §§ 11.71.010 to 11.71.050; ARIZ. REV. STAT. ANN. §§ 13-
3405 to 13-3423; ARK. CODE ANN. § 5-64-440; CAL. HEALTH & SAFETY CODE §§ 11352 to11354; COLO. REV. STAT.
ANN. § 18-18-405; CONN. GEN. STAT. ANN. §§ 21a-278 to 278b; DEL. CODE ANN. tit.16 §§ 4751a to 4754 ; FLA. STAT.
ANN. §§ 893.13 to 893.135; GA. CODE § 16-13-30; HAWAII REV. STAT. § 329-42; IDAHO CODE § 37-2732b; ILL. COMP.
STAT. ANN. ch. 720 § 570/401.1; IND. CODE ANN. §§35-48-4-1 TO 35-48-4-4; IOWA CODE ANN. §§124.401 to 124.401e;
KAN. STAT. ANN. § 21-5705; KY. REV. STAT. ANN. § 218a.1404 ; LA. REV. STAT. ANN. §§ 40:966 to 40:971.2; ME. REV.
STAT. ANN. tit.17-a §§1103 to 1106; MD. CRIM. CODE ANN. §§ 5-602, 5-608; MASS. GEN. LAWS ANN. ch. 94C §§ 32 to
32e; MICH. COMP. LAWS ANN. § 333.7401; MINN. STAT. ANN. §§ 152.021 to 152.027; MISS. CODE ANN. §§ 41-29-139
to 41-29-143; MO. ANN. STAT. §§ 579.065, 579.068; MONT. CODE ANN. § 45-9-101 (amended to reflect legalization of
marijuana); NEB. REV. STAT. §§ 28-416 to 28-418; NEV. REV. STAT. § 453.321; N.H. REV. STAT. ANN. §§ 318-B:2, 318-
B:26; N.J. STAT. ANN. § 2C:36-3; N.M. STAT. ANN. § 30-31-20; N.Y. PENAL LAW §§ 220.31 to 220.44, 220.77; N.C.
GEN. STAT. §§ 90-95, 90-95.1; N.D. CENT. CODE §19-03.1-23 to 19-03.1-25; OHIO REV. CODE ANN. §2925.03; OKLA.
STAT. ANN. tit.63 § 2-415; ORE. REV. STAT. § 475.752; PA. STAT. ANN. tit.35 § 780-113; R.I. GEN. LAWS §§ 21-28-4.01
to 21-28-4.03; S.C. CODE ANN. § 44-53-370; S.D. CODIFIED LAWS §§22-42-2 to 22-42-3; TENN. CODE ANN. § 39-17-
417; TEX. HEALTH & SAFETY CODE ANN. §§ 481.112 to 481.114; UTAH CODE ANN. §§ 58-37c-3, 58-37c-11; VT. STAT.
ANN. tit. 18 §§ 4231 to 4235a; VA. CODE §§ 18.2-248 to 18.2-248.1; WASH. REV. CODE ANN. § 69.50.401; W.VA. CODE
ANN. §§60a-4-401 to 60a-4-403; WIS. STAT. ANN. §§ 961.41, 939.50; WYO. STAT. §§ 35-7-1031 to 35-7-1042.
270 Anti-Drug Abuse Act of 1988, Pub. L. No. 100–690, § 7001, 102 STAT. 4181.
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established the capital offense in its current form (without the requirement of a killing) when
Congress revived the death penalty as a sentencing option generally.271 There have apparently not
been any cases in which the death penalty has been imposed under the statute,272 but there is no
evidence that under compelling circumstances prosecutors would not pursue it, nor juries impose
it. The Supreme Court has said death is a disproportionate punishment for the rape of a child, a
“simple” murder, or even the most depraved murder by a juvenile. Yet, the drug kingpin offense
may sow human misery more deeply and more broadly than other crimes, which may be why the
Court distinguished it in Kennedy.
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.273 It is
held before a jury, unless the parties agree otherwise.274 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.275 “The Supreme Court has not expressly
recognized a constitutional right to allocution [allocution is a defendant’s unsworn statement to
the judge or jury prior to the announcement of sentence]. The circuits that have addressed the
question have held that there is no constitutional right to allocution before a jury in a federal
capital sentencing hearing.”276

271 Violent Crime Control and Law Enforcement Act of 1994, § 60002(a), 108 STAT. 1959; 18 U.S.C. § 3591(b).
272 Meredith Martin Rountree & Mary R. Rose, The Complexities of Conscience: Reconciling Death Penalty Law with
Capital Jurors’ Concerns
, 69 BUFF. L. REV. 1237, 1249 n.36 (2021) (“The FDPA permits the death penalty for two
non-homicide offenses, namely for defendants charged with extensive drug dealing or participating in very extensive
continuing criminal enterprises who have only ‘attempt[ed]’ to kill. 18 U.S.C. § 3591(b)(1)-(2). These provisions are
suspect in light of the Court’s decisions in Coker . . . and Kennedy . . . So far, the Department of Justice has not sought
the death penalty under either provision.”).
273 18 U.S.C. § 3593.
274 Id. § 3593(b).
275 Id. § 3593(c) (“Information is admissible regardless of its admissibility under the rules governing admission of
evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger
of creating unfair prejudice, confusing of the issues, or misleading the jury ... ”); United States v. Tsarnaev, 142 S. Ct.
1024, 1037 (2022); United States v. Fackrell, 991 F.3d 589, 605 (5th Cir. 2021); United States v. Hall, 945 F.3d 1035,
1042 (8th Cir. 2019); United States v. Aquart, 912 F.3d 1, 15 n.4 (2d Cir.2018). The courts have rejected the suggestion
that this approach is constitutionally untenable, e.g., Aquart, 912 F.3d at 34 n.20 (rejecting the contention that the
Confrontation Clause precludes admission of hearsay evidence during a capital sentencing hearing); Hall, 945 F.3d at
143 n.3; United States v. Umana, 750 F.3d 320, 347 (4th Cir. 2014); United States v. Snarr, 704 F.3d 368, 399 (5th Cir.
2013) (“FDPA’s relaxed evidentiary standard during a defendant’s sentencing proceeding is not unconstitutional.”).
276 United States v. Lawrence, 735 F.3d 385, 407 (6th Cir. 2013) (citing United States v. Jackson, 549 F.3d 963, 980–
81 (5th Cir. 2008) and United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000)). Lawrence argued that the right to
offer evidence in mitigation under 18 U.S.C. § 3592(c) included the right of the defendant to present the evidence to the
jury himself. The court conceded that “although the FDPA does not mention allocution, the probative value of the
sound of the defendant’s own voice, explaining his conduct and subsequent remorse in his own words, as information
relevant to mitigation, can hardly be gainsaid,” Lawrence, 735 F.3d at 408. However, it concluded that the trial court
had not abused its discretion by denying allocution but affording Lawrence the opportunity to address the jury under
oath and subject to cross examination, id. “[C]onsidering the extent of Lawrence’s mitigation case and contents of his
short unsworn statement, the [trial] court could well have concluded that the probative value of the statement was
limited and cumulative,” id.
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There is some question whether the prosecutors’ arguments or rebuttal concerning the defendant’s
lack of remorse constitute a violation of the defendant’s right not to testify.277 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.278
The prosecution bears the burden of establishing the existence of aggravating factors and the
defendant of establishing mitigating factors.279 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.280 The finding on aggravating circumstances must be
unanimous; the finding on mitigating circumstances need only be espoused by a single juror.281
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.282 If they find the death penalty justified, they must recommend

277 United States v. Whitten, 610 F.3d 168, 198–99 (2d Cir. 2010) (citing Estelle v. Smith, 451 U.S. 454, 462–63
(1981)) (“It is settled that prosecutors may not comment adversely on a defendant’s invocation of his Fifth Amendment
privilege not to testify.... This protection extends to capital sentencing proceedings”); United States v. Caro, 597 F.3d
608, 629 (4th Cir. 2010) (finding that in the case before it any error would be harmless, but noted that “our sister
circuits are divided over whether the Fifth Amendment prohibits using silence to show lack of remorse inviting a
harsher sentence. Compare United States v. Mikos, 539 F.3d 706, 718 (7th Cir. 2008) (holding that during a capital
sentencing a defendant’s silence may be considered regarding lack of remorse, with Lesko v. Lehman, 925 F.2d 1527,
1544-45 (3d Cir. 1991) (holding that during a capital sentencing a defendant’s failure to apologize may not be
considered regarding a lack of remorse).”).
278 Whitten, 610 F.3d at 194-95 (“if the government invites the jury to find the existence of an aggravating factor based
on ‘inferences from conduct that is constitutionally protected ... for example ... the request for trial by jury ... due
process of law would require that the jury’s decision to impose death be set aside.’”) (quoting Zant v. Stephens, 462
U.S. 862, 885 (1983).
279 18 U.S.C. § 3593(c); Lawrence, 735 F.3d at 410; United States v. Lighty, 616 F.3d 321, 343 (4th Cir. 2010); United
States v. Rodriguez, 581 F.3d 775, 799 (8th Cir. 2009).
280United States v. Aquart, 912 F.3d 1, 52 (2d Cir. 2018) (“If a jury finds a defendant guilty of a death-eligible crime,
the statute limits jury discretion to vote a death sentence to those defendants unanimously found beyond a reasonable
doubt to have acted (a) with specific culpable intent . . . and (b) under circumstances specified in at least one statutory
aggravating factor . . . If a jury finds both these statutory requirements satisfied, it must consider non-statutory
aggravating factors that it finds proved beyond a reasonable doubt as well as any mitigating factors established by a
preponderance of the evidence to the satisfaction of even a single juror . . . A jury must then carefully weigh such
aggravating and mitigating factors and only if it unanimously concludes that the aggravating factors so outweigh the
mitigating factors as to justify a capital sentence can the jury return a death verdict.”); Lawrence, 735 F.3d at 410 (“The
FDPA requires a higher standard of proof for aggravating factors than mitigating ones. The prosecution must establish
the existence of an aggravating factor beyond a reasonable doubt, and the jury must agree unanimously. 18 U.S.C. §
3593(c). The defendant need only establish the existence of a mitigating factor by a preponderance of the evidence.”).
281 18 U.S.C. § 3593(d) (“The jury, or if there is no jury, the court ... shall consider all the information received during
the hearing. It shall return special findings identifying any aggravating factor or factors set forth in section 3592 found
to exist and any other aggravating factor for which notice has been provided under subsection (a) found to exist. A
finding with respect to a mitigating factor may be made by 1 or more members of the jury, and any member of the jury
who finds the existence of a mitigating factor may consider such factor established for purposes of this section
regardless of the number of jurors who concur that the factor has been established. A finding with respect to any
aggravating factor must be unanimous. If no aggravating factor set forth in section 3592 is found to exist, the court
shall impose a sentence other than death authorized by law.”).
282 Id. §§ 3593(e), 3594; see also United States v. Candelario-Santana, 977 F.3d 146, 157 (1st Cir. 2020); United States
v. Hall, 945 F.3d 1035, 1040 (8th Cir. 2019); Aquart, 912 F.3d at 52; United States v. Mikhel, 889 F.3d 1003, 1051
(9th Cir. 2018).
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it.283 If they recommend the death penalty, the court must impose it.284 If they cannot agree, the
defendant must be sentenced to a term of imprisonment, most often to life imprisonment.285
Appellate Review
A defendant sentenced to death is entitled to review by the court of appeals.286 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.287 Convictions and sentences imposed in a federal capital case are
subject to normal appellate and collateral review.288
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.289 This rule does not appear
to require the federal government “to follow all the subsidiary details set forth in state execution
protocols.”290 The United States Marshal has the authority to use state or local facilities and

283 18 U.S.C. § 3593(e); United States v. Gabrion, 719 F.3d 511, 532 (6th Cir. 2013); United States v. Montgomery,
635 F.3d 1074, 1099 (8th Cir. 2011) (“We have interpreted the statutory language [of 18 U.S.C. § 3593(e)] to mean that
once a jury makes a final, unanimous determination that a sentence of death is justified, then the FDPA requires its
imposition.”); United States v. Caro, 597 F.3d 608, 631–33 (4th Cir. 2010).
284 18 U.S.C. § 3594; United States v. Roof, 10 F.4th 314, 359 n.26 (4th Cir. 2021).
285 18 U.S.C. § 3593(d). Some federal capital offenses are punishable by death or life imprisonment, e.g., 18 U.S.C. §
1201(a) (kidnapping where death results); others by death, life imprisonment or any term of years, e.g., 18 U.S.C. §
924(c)(5)(B) (use of armor piercing ammunition during and in relation to a crime of violence or drug trafficking where
death results).
286 Id. § 3595(a).
287 Id. § 3595(c) (“(1) The court of appeals shall address all substantive and procedural issues raised on the appeal of a
sentence of death, and shall consider whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor and whether the evidence supports the special finding of the existence of an
aggravating factor required to be considered under section 3592. (2) Whenever the court of appeals finds that - (A) the
sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (B) the
admissible evidence and information adduced does not support the special finding of the existence of the required
aggravating factor; or (C) the proceedings involved any other legal error requiring reversal of the sentence that was
properly preserved for appeal under the rules of criminal procedure, the court shall remand the case for reconsideration
under section 3593 or imposition of a sentence other than death. The court of appeals shall not reverse or vacate a
sentence of death on account of any error which can be harmless, including any erroneous special finding of an
aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.”).
288 28 U.S.C. §§ 1291, 2255.
289 18 U.S.C. § 3596(a). The implementing regulations call for execution by lethal injection unless the court provides
otherwise, 28 C.F.R. § 26.3(a)(4); but see In re Fed. Bur. of Prisons’ Execution Protocol Cases, 955 F.3d 106, 108
(D.C. Cir. 2020) (“It is common ground that this provision [(§ 3596(a))] requires the federal government to adhere at
least to a State’s choice among execution methods such as hanging, electrocution, or lethal injection.”).
290 Execution Protocol Cases,955 F.3d at 108; see generally CRS Legal Sidebar LSB10357, Federal Capital
Punishment: Recent Developments
, by Michael A. Foster (2020).
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personnel to carry out the execution.291 The regulations permit 6 defense witnesses and 18 public
witnesses to attend the execution.292 Video and audio recording are forbidden.293
Federal Crimes Punishable by Death (Citations)294
7 U.S.C. § 2146 (murder of a federal animal transportation inspector)
8 U.S.C. § 1324 (death resulting from smuggling aliens into the U.S.)
15 U.S.C. § 1825(a)(2)(C) (killing those enforcing the Horse Protection Act)
18 U.S.C. §§ 32, 34 (death resulting from destruction of aircraft or their facilities)
18 U.S.C. §§ 33, 34 (death resulting from destruction of commercial motor vehicles or their facilities)

18 U.S.C. § 36 (murder by drive-by shooting)
18 U.S.C. § 37 (death resulting from violence at international airports)
18 U.S.C. § 115(a)(1)(A), (b) (murder of a family member of a United States officer, employee or judge
with intent to impede or retaliate for performance of federal duties)
18 U.S.C. § 115(a)(2), (b) (murder of a former United States officer, employee or judge or any member of
their families in retaliation for performance of federal duties)
18 U.S.C. §§ 229, 229A (death resulting from chemical weapons offenses)

18 U.S.C. § 241 (death resulting from conspiracy against civil rights)
18 U.S.C. § 242 (death resulting from deprivation of civil rights under color of law)
18 U.S.C. § 245 (death resulting from deprivation of federally protected activities)
18 U.S.C. § 247 (death resulting from obstruction of religious beliefs)
18 U.S.C. § 351 (killing a Member of Congress, cabinet officer, or Supreme Court justice)

18 U.S.C. § 794
(espionage)
18 U.S.C. § 844(d) (death resulting from the unlawful transportation of explosives in United States foreign
commerce)
18 U.S.C. § 844(f) (death resulting from bombing federal property)
18 U.S.C. § 844(i) (death resulting from bombing property used in or used in an activity which affects
United States foreign commerce)
18 U.S.C. § 924(c) (death resulting from carrying or using a firearm during and in relation to a crime of
violence or a drug trafficking offense)

18 U.S.C. § 930(c) (use of a firearm or dangerous weapon a firearm or other dangerous weapon in a federal
facility)
18 U.S.C. § 1091 (genocide when the offender is a United States national)
18 U.S.C. § 1111 (1st degree murder within the special maritime and territorial jurisdiction of the
U.S.)[applies to offenses committed overseas on U.S. facilities or residences by or against an
American, 18 U.S.C. 7(e); to offenses committed overseas by individuals serving in, employed by, or
accompanying U.S. Armed Forces, 18 U.S.C. 3261; and to offenses committed within the special
aircraft jurisdiction of the U.S., 49 U.S.C. 46506]
18 U.S.C. § 1114 (murder of a federal officer or employee during the performance of (or on account of) the
performance of official duties)


291 18 U.S.C. § 3597(a).
292 28 C.F.R. § 26.4(c) (“In addition to the Marshal, the following persons shall be present at the execution
(1) Necessary personnel . . . ; (2) . . . attorneys of the Department of Justice . . . ; (3) Not more than the following
number of persons selected by the prisoner: (i) One spiritual adviser; (ii) Two defense attorneys; and (iii) Three adult
friends or relatives; and (4) Not more than the following number of persons selected by the Director of the Federal
Bureau of Prisons or his designee: (i) Eight citizens; and (ii) Ten representatives of the press.”).
293 28 C.F.R. § 26.4(f).
294 Does not include offenses under the Uniform Code of Military Justice, the District of Columbia Code, or under the
codes of any of the U.S. territories or possessions.
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18 U.S.C. § 1116 (murder of an internationally protected person)
18 U.S.C. § 1118 (murder by a federal prisoner)
18 U.S.C. § 1119 (murder of a U.S. national by another outside the U.S.)
18 U.S.C. § 1120 (murder by a person who has previously escaped from a federal prison)
18 U.S.C. § 1121(a) (murder of another who is assisting or because of the other’s assistance in a federal
criminal investigation or killing (because of official status) a state law enforcement officer assisting in
a federal criminal investigation)

18 U.S.C. § 1201
(kidnaping where death results)
18 U.S.C. § 1203 (hostage taking where death results)
18 U.S.C. § 1503 (murder to obstruct federal judicial proceedings)
18 U.S.C. § 1512 (tampering with a federal witness or informant where death results)
18 U.S.C. § 1513 (retaliatory murder of a federal witness or informant)

18 U.S.C. § 1716
(death resulting from mailing injurious items)
18 U.S.C. § 1751 (murder of the President, Vice President, or a senior White House official)
18 U.S.C. § 1958 (murder for hire in violation of U.S. law)
18 U.S.C. § 1959 (murder in aid of racketeering)
18 U.S.C. § 1992 (attacks on mass transit systems engaged in interstate or foreign commerce resulting in
death)

18 U.S.C. § 2113
(murder committed during the course of a bank robbery)
18 U.S.C. § 2119 (death resulting from carjacking)
18 U.S.C. §§ 2241, 2245 (aggravated sexual abuse within the special maritime and territorial jurisdiction of
the United States where death results)
18 U.S.C. §§ 2242, 2245 (sexual abuse within the special maritime and territorial jurisdiction of the United
States where death results)
18 U.S.C. §§ 2243, 2245 (sexual abuse of a minor or ward within the special maritime and territorial
jurisdiction of the United States where death results)

18 U.S.C. §§ 2244, 2245 (abusive sexual contact within the special maritime and territorial jurisdiction of
the United States where death results)
18 U.S.C. § 2251 (murder during the course of sexual exploitation of a child)
18 U.S.C. § 2280 (a killing resulting from violence against maritime navigation)
18 U.S.C. § 2281 (death resulting from violence against fixed maritime platforms)
18 U.S.C. § 2282A (murder using devices or dangerous substances in U.S. waters)

18 U.S.C. § 2283
(transportation of explosives, biological, chemical, radioactive or nuclear materials for
terrorist purposes on the high seas or aboard a U.S. vessel or in U.S. waters)
18 U.S.C. § 2291 (murder in the destruction of vessels or maritime facilities)
18 U.S.C. § 2332 (killing an American overseas)
18 U.S.C. § 2332a (death resulting from use of weapons of mass destruction)
18 U.S.C. § 2322b (multinational terrorism involving murder)

18 U.S.C. § 2332f
(bombing public places where death results)
18 U.S.C. § 2340A (death resulting from torture committed outside the U.S.)
18 U.S.C. § 2381 (treason)
18 U.S.C. § 2441 (war crimes)
21 U.S.C. § 461(c) (murder of federal poultry inspectors during or because of official duties)

21 U.S.C. § 675
(murder of federal meat inspectors during or because of official duties)
21 U.S.C. §§ 848(c), 18 U.S.C. 3592(b) (major drug kingpins and attempted murder by drug kingpins to
obstruct justice)
21 U.S.C. § 848(e)(1) (drug kingpin murders)
21 U.S.C. § 1041(b) (murder of an egg inspector during or because of official duties)
Congressional Research Service

40

Federal Capital Offenses: An Overview of Substantive and Procedural Law

42 U.S.C. § 2283 (killing federal nuclear inspectors during or because of official duties)
49 U.S.C. § 46502 (air piracy where death results)





Author Information

Charles Doyle

Senior Specialist in American Public Law



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Congressional Research Service
R42095 · VERSION 12 · UPDATED
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