Procedural Provisions for Imposing the Death Penalty in

Pending Legislation

[T he follow ing m em orandum com m ents on proposed legislation to bring the federal death 

p enalty provisions into com pliance w ith the co nstitutional stan d ard s identified by the 

S uprem e C o u rt in Furman v. Georgia, 408 U.S. 238 (1972) and subsequent decisions. It 

identifies certain p ro ced u ral provisions as likely to be subject to constitutional ch allenge, and indicates h o w the issues involved are likely to be resolved under existing 

case law. A m ong th e issues discussed are: (1) w h eth er th e C o n stitu tio n ’s requirem ent o f 

a unanim ous ju ry extends to the sentencing phase o f a capita) case; (2) w h eth er the 

ju ry ’s consideration o f m itigating factors m ay be lim ited; (3) w h eth er evidence o f 

ag g ravating factors m ay be adm itted regardless o f its adm issibility under the rules o f 

evidence; (4) w h eth er th e language specifying ag g rav atin g and m itigating factors is 

unconstitutionally vague; (5) w h eth er the death penalty m ay be im posed for nonhom icidal crim es; and (6) w h eth er appellate review only at the request o f the defendant 

is an adequate safeguard against the random o r arb itrary im position o f the death 

penalty.]

May 30, 1980

MEMORANDUM FOR TH E ATTORNEY GENERAL

At the request of the Deputy Attorney General, this Office has 

prepared the following analysis of the constitutional issues raised by 

S. 114, a bill to establish procedures for the imposition of the sentence 

of death for certain federal crimes.* The death penalty is presently an 

authorized sentence upon conviction of at least ten federal offenses, 

including murder, treason, espionage, rape, air piracy and several other 

felonies if death results from the crime.1 Since the Supreme Court’s 

decision in Furman v. Georgia, 408 U.S. 238 (1972), the constitutionality 

of these sections has been in doubt because they lack guidelines for the 

exercise of sentencing discretion.

*N o t e : The text of S. 114 as introduced in the Senate in 1979 appears at 125 Cong. Rec. 782-83 

(January 23, 1979). Ed.

1 See 18 U.S.C. § 34 (destruction o f m otor vehicles or m otor vehicle facilities w here death results);

18 U.S.C. § 351 (assassination or kidnapping of a M ember o f Congress); 18 U.S.C. § 794 (gathering or 

delivering defense information to aid a foreign governm ent); 18 U.S.C. § 1111 (m urder in the first 

degree w ithin the special maritime and territorial jurisdiction of the United States); 18 U.S.C. § 1716 

(causing death o f another by mailing injurious articles); 18 U.S.C. § 1751 (m urder or kidnapping o f a 

President or Vice President); 18 U.S.C. §2031 (rape within the special maritime or territorial jurisdiction of the United States); 18 U.S.C. § 2381 (treason); 49 U.S.C. § 1472(i) (aircraft piracy). S. 114 

would make some changes in these provisions, including deletion o f the death penalty for rape not 

resulting in death (see Coker v. Georgia, 433 U.S. 584 (1977)) and kidnapping in the course of a bank 

robbery not resulting in death. The bill would add a provision authorizing the death penalty for 

m urder o f a foreign official.

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Prior to considering the issues raised by S. 114, it may be helpful 

briefly to review the recent Supreme Court decisions on capital punishment. In Furman, a five-Justice majority ruled in a per curiam opinion 

that the imposition of the death penalty in the cases before the Court 

would constitute cruel and unusual punishment in violation of the 

Eighth and Fourteenth Amendments.2 Two of those Justices were of 

the opinion that capital punishment is per se unconstitutional.3 The 

remaining three Justices did not reach the question whether the death 

penalty is unconstitutional in all circumstances. Justice Douglas concluded that the discretionary statutes in question were “pregnant with 

discrimination" in their operation and thus violated the Equal Protection Clause of the Fourteenth Amendment.4 Justice Stewart objected to 

the penalty being applied in “so wantonly and so freakishly” a 

manner.5 Justice White concluded that as the statutes were administered, they violated the Eighth Amendment because the penalty was 

“so infrequently imposed that the threat of execution is too attenuated 

to be of substantial service to criminal justice.” 6 

In Gregg v. Georgia, 428 U.S. 153 (1976), the Court reviewed the 

Georgia statute enacted in response to Furman and found it sufficient to 

overcome Eighth Amendment objections. Id. at .207.7 Justices Stewart, 

Powell, and Stevens found four features of the statute to be particularly 

important: (1) the sentencer’s attention was drawn to the particularized 

circumstances of the crime and of the defendant by reference to aggravating and mitigating factors; (2) the discretion of the sentencer was 

controlled by clear and objective standards; (3) the sentencer was 

provided with all the relevant evidence during a separate sentencing 

hearing, while prejudice to the defendant was avoided by restricting 

information on aggravating circumstances to that comporting with the 

rules of evidence; and (4) there was a system of appellate review of the 

sentence to guard against arbitrariness, excessiveness, and disproportionality. These conclusions were summarized as follows:

[T]he concerns expressed in Furman that the penalty of 

death not be imposed in an arbitrary or capricious manner 

can be met by a carefully drafted statute that ensures that 

the sentencing authority is given adequate information 

and guidance. As a general proposition these concerns are 

best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of

* 408 U.S. at 239-40.

3 Id. at 257 (Brennan, J., concurring); id. at 314 (Marshall, J., concurring).

4 Id. at 256-57.

8 Id. at 310.

8 Id. at 312-13.

7 In companion cases, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 

U.S. 325 (1976), a plurality ruled that imposition o f m andatory death sentences violated the prohibition 

against cruel and unusual punishment under the Eighth and Fourteenth Amendments.

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the information relevant to the imposition of sentence and 

provided with standards to guide its use of the information.

Id. at 195. In a separate opinion, Justices White, Burger, and Rehnquist 

concurred in the judgment. Id. at 211-27.

In Lockett v. Ohio, 438 U.S. 586 (1978) and the companion case, Bell

v. Ohio, 438 U.S. 637 (1978), the Court again considered the constitutionality of a State statute enacted in response to Furman. The Ohio 

statute at issue also set forth the aggravating and mitigating factors to 

be considered in the imposition of the death penalty. If the case went to 

trial, however, only three mitigating factors could be considered. Without a finding of one of these factors, and with a finding of an aggravating factor, imposition of the death penalty was mandatory. While the 

Court by a vote of seven to one found the imposition of the death 

penalty in this case to be unconstitutional, again there was no majority 

opinion.

Chief Justice Burger and Justices Stewart, Powell, and Stevens based 

their decision on the conclusion that “the Eighth and Fourteenth 

Amendments require that the sentencer, in all but the rarest kind of 

capital case, 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.” 8 Justice Marshall adhered to his view that 

the death penalty is unconstitutional per se. Justice Blackmun found that 

the application of the penalty to an aider and abettor without regard to 

a specific mens rea in relation to the killing to be cruel and unusual. He 

also found that the statute violated the rule set down in United States v. 

Jackson, 390 U.S. 570 (1968), in that it permitted a judge who accepted 

a guilty plea to avoid imposing the death penalty in the interest of 

justice, but authorized consideration of only three mitigating factors if a 

defendant went to trial. Finally, Justice White objected to the Ohio 

statute because it included an aider and abettor within the scope of the 

death penalty without a finding that the defendant “engaged in conduct 

with the conscious purpose of producing death.” 9

The Court also has held that in addition to requiring certain procedural safeguards for imposition of the death penalty, the Eighth 

Amendment bars use of the death penalty if it is excessive in relation to 

the crime committed. Coker v. Georgia, 433 U.S. 584 (1977). In Coker,

the Court concluded that the death sentence for rape of an adult 

woman when death did not result was disproportionate to the crime. 

Id. at 592.

8 Lockett v. Ohio, 438 U.S. at 604.

9 Id. at 627-28.

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Recently, the Court again reviewed a death sentence imposed under 

the Georgia statute. In Godfrey v. Georgia, 446 U.S. 420 (1980), the 

Court considered whether the Georgia Supreme Court had adopted 

such a broad and vague construction of one of the statutory aggravating circumstances as to violate the Eighth and Fourteenth Amendments. The aggravating circumstance in question provided that a 

person could be sentenced to death if the offense was “outrageously or 

wantonly vile, horrible or inhuman in that it involved torture, depravity 

of mind, or an aggravated battery to the victim.” Ga. Code Ann. § 27- 

2534.1(b)(7) (Supp. 1975). The Court previously had held in Gregg v. 

Georgia, 428 U.S. 153 (1976), that this statutory aggravating circumstance is not unconstitutional on its face. In the plurality opinion in 

Godfrey, written by Justice Stewart, joined by Justices Blackmun, 

Powell, and Stevens, the Court ruled that in upholding Godfrey’s 

sentence, the Georgia Supreme Court did not satisfy the § (b)(7) criteria 

the Georgia high court itself had laid out in its prior cases. In light of 

the facts and circumstances of Godfrey’s offense, the Court concluded 

that the Georgia Supreme Court did not apply a constitutional construction of § (b)(7). Justice Stewart stated: “There is no principled way 

to distinguish this case, in which the death penalty was imposed, from 

the many cases in which it was not.” 446 U.S. at 433. In a concurring 

opinion, Justice Marshall, joined by Justice Brennan, adhered to his 

view that the death penalty is unconstitutional in all cases, and, in 

addition, agreed with the plurality that the Georgia Supreme Court’s 

construction of § (b)(7) in this case was unconstitutionally vague. He 

suggested that the sentencing procedures of the type approved in Gregg

are doomed to failure because the criminal justice system is incapable of 

guaranteeing objectivity and evenhandedness. Chief Justice Burger and 

Justices Rehnquist and White dissented, warning that the Court should 

not put itself in the role of second-guessing state judges and juries.

S. 114 seeks to establish constitutional procedures for the imposition 

of the death sentence upon conviction of federal crimes for which the 

death penalty is authorized. The bill would amend Title 18 of the 

United States Code, rather than the Federal Rules of Criminal Procedure, as some previous bills have proposed.10 It provides that after 

conviction of a capital offense the defendant shall be subject to the 

death penalty only if a hearing is held in accordance with specified 

procedures. The hearing would be conducted before the jury which 

determined the defendant’s guilt, unless, under specified circumstances, 

a new jury must be impaneled or the parties agree that the court alone 

conduct the hearing. At this sentencing hearing, information would be 

presented as to any matter relevant to the sentence, including matters

10 S. 114 is not coordinated w ith S. 1722, the bill to revise Title 18 of the United States Code. In its 

present form, S. 1722 does not authorize the penalty of death for any crime. See S. 1722, Part III— 

Sentences.

655
relevant to specified aggravating and mitigating factors. The jury, or if 

there is no jury, the court, is required to return special findings identifying any aggravating and mitigating factors found to exist. The burden 

of establishing the existence of any aggravating factors is on the government, and is not satisfied unless established beyond a reasonable 

doubt. The burden of establishing the existence of any mitigating factor 

is on the defendant, and is not satisfied unless established by a preponderance of the information.

If none of the specified aggravating factors are found to exist, the 

court must impose an authorized sentence other than death. If one or 

more of the aggravating factors are found to exist, then it must be 

determined whether the aggravating factors outweigh the mitigating 

factors, or, in the absence of mitigating factors, whether the aggravating factors are sufficient in themselves to justify a sentence of death. 

Upon a jury finding that a sentence of death is justified, the court is 

required to sentence the defendant to death. The sentence of death is 

subject to review by the court of appeals.

There have been previous attempts to bring the federal death penalty 

provisions into compliance with the constitutional standards identified 

by the Court in Furman, Gregg, and Lockett. S. 114 is very similar to S. 

1382, which was introduced in the 95th Congress by the late Senator 

McClellan for himself and others. Prior to introducing S. 1382, Senator 

McClellan requested the Department of Justice to review the draft bill 

and comment with respect to its constitutionality in light of the recent 

Supreme Court decisions. Former Attorney General Bell responded to 

Senator McClellan by letter dated March 25, 1977. The letter stated 

that “the procedures set forth in the draft bill are consistent with the 

decision in the Furman case, and are also consistent with the opinions of the Supreme Court in Gregg v. Georgia . . . and Proffitt v. 

Florida. . . .” 11 Attorney General Bell’s letter concluded: “We believe 

that the proposed bill would be found by the Supreme Court to meet 

constitutional requisites” and “I support your efforts to bring it to the 

attention of the Senate.”

The following year, hearings were held on S. 1382 and H.R. 13360, a 

House bill to amend the Federal Rules of Criminal Procedure to provide for sentencing procedures in capital cases. A representative of this 

Department testified on both bills, generally concluding that, although 

the Court is unusually divided on these issues and any analysis thus is 

necessarily speculative, the bills probably satisfied the standards of the 

case law.12

11 In Proffitt v. Florida, 428 U.S. 242 (1976), a case decided with Gregg and Jurek v. Texas, 428 U.S. 

262 (1976), a plurality upheld a Florida statute w hich directed the trial judge to weigh eight 

aggravating factors against seven mitigating factors to determ ine w hether to impose the death penalty.

12 In 1977, M ary Law ton, D eputy Assistant A ttorney G eneral, Office o f Legal Counsel, testified on 

S. 1387 before the Senate Subcom m ittee on Criminal Laws and Procedures o f the Senate Judiciary

Continued

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S. 114 was introduced by Senator DeConcini for himself and Senator 

Thurmond on January 23, 1979. It was referred to the Committee on 

the Judiciary which, on January 17, 1980, reported favorably thereon 

with minor technical amendments. S. Rep. No. 554, 96th Cong., 2d 

Sess. 1 (1980). No hearings were held by the Committee. In the Senate 

report, Senators Kennedy, Culver, and Leahy set forth their individual 

views’opposing S. 114 and urging that “capital punishment is wrong in 

principle, wrong as a matter of policy, and wrong as drafted in S. 114.” 

Id. at 33. Senator Baucus also presents his individual views. He states 

that the bill “is flawed by its precipitous method of passage by the 

Senate Judiciary Committee, its overly broad application to nonhomicidal Federal crimes, and serious constitutional inadequacies,” and 

recommends that the Senate recommit S. 114 to the Judiciary Committee. Id. at 34-5.13 On March 7, 1980, 22 Senators, including Senators 

on both sides of the death penalty issue, signed a “Dear Colleague” 

letter, stating that they will move to recommit S. 114 or any similar bill 

to the Judiciary Committee so that it may be presented to the Senate 

“only after full hearings and debate.” It is against this background that 

we analyze the constitutional issues raised by S. 114.

I. Discussion

Because of the controversy surrounding the death penalty, and the 

several recent Supreme Court decisions which failed to command a 

clear majority, any death penalty legislation is bound to raise difficult 

constitutional questions. Some of the questions identified below were 

raised by prior legislation and have been the subject of extensive testimony before congressional committees. Other issues discussed here are 

raised by provisions in S. 114 which did not appear in the prior 

legislation. As with the prior bills, it is not possible to state definitively 

how the Court would resolve each of the issues raised by S. 114. We 

have attempted to identify provisions likely to be challenged as constitutionally inadequate and to indicate where possible how we think these 

issues would be resolved under the case law to date.

I. Determination by Majority Vote o f Aggravating and Mitigating Factors

Both S. 1382 and H.R. 13360 required unanimity in all jury findings. 

S. 114, however, provides that the jury’s findings of aggravating or

Committee. She again testified on S. 1382 on April 27, 1978. before the Senate Judiciary Committee 

itself. On July 17, 1978, after the Lockett decision, she testified on H.R. 13360 before the Subcom m ittee on Criminal Justice o f the House Judiciary Committee. T here have been no hearings in the Senate 

on death penalty legislation since the Lockett decision was issued.

13 Senator Baucus notes that although the issue o f capital punishment has been considered by the 

Senate Judiciary Committee in the past, S. 114 was not discussed or evaluated by the C om m ittee in 

the 96th Congress. He notes that new members o f the Senate have not had an opportunity to consider 

the bill in hearings and none of the members o f the Committee have considered the changes in the bill 

made prior to introduction this session. S. Rep. No. 5S4, 96th Cong., 2d Sess. 34 (1980).

657
mitigating factors “shall be made by majority vote.” If one or more 

aggravating factors are found to exist, the jury must then consider 

whether the aggravating factor(s) sufficiently outweigh any mitigating 

factors, or, in the absence of mitigating factors, whether the aggravating factor(s) is itself sufficient to justify a sentence of death. Based upon 

these considerations, the jury must return a finding by unanimous vote 

as to whether a sentence of death is justified.

A criminal defendant’s right to trial by jury is guaranteed both in 

Article III, §2, clause 3, and in the Sixth Amendment. Rule 31(a) of 

the Federal Rules of Criminal Procedure requires that the verdict be 

unanimous. The Supreme Court has determined that this unanimity 

requirement in federal criminal cases is constitutionally based. See Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 

(1972). See also United States v. Scalzitti, 578 F.2d 507, 512-13 (3d Cir. 

1978); United States v. Gipson, 553 F.2d, 453, 456 (5th Cir. 1977). The 

question raised here is whether this requirement of a unanimous verdict 

extends to the sentencing phase of a capital case.14 This question has 

never been directly addressed by the Court.

In Andres v. United States, 333 U.S. 740 (1948), the Court suggested 

that unanimity is required in all federal jury verdicts. In Andres, the 

petitioner had been sentenced to death upon conviction of first degree 

murder. The determinative statute provided that where the accused is 

convicted of murder in the first degree the jury may qualify its verdict 

by adding the words “without capital punishment,” in which event the 

punishment must be imprisonment. The government contended that the 

statute required that the jury first unanimously decide guilt or innocence, and, having done so, then consider whether to recommend 

mercy, but that if they failed to reach a unanimous agreement to 

recommend mercy, the guilty verdict without a recommendation 

should stand as the verdict of the jury. The petitioner contended that 

the proper construction should be that unanimity is required both as to 

guilt and punishment, and therefore, if the jury were not unanimous as 

to the death penalty, he should not be condemned. The Court concluded that the statute required that the jury’s decision on both guilt 

and whether the punishment of death should be imposed must be 

unanimous. As to the constitutionality of non-unanimous verdicts, the 

Court wrote:

14 A related question that could be raised relates to S. 114's provision that a ju ry impaneled for the 

sentencing hearing “shall consist o f tw elve members, but, at any time before the conclusion of the 

hearing, the parties may stipulate with the approval o f the court that it shall consist of any number less 

than tw e lv e /’ T he same provision was included in S. 1382, and a similar provision appeared in H.R. 

13360. In testimony on these bills in 1978, this D epartm ent noted that, while stipulation o f the parties 

is norm ally adequate to avoid a claim of denial o f Sixth A m endm ent rights, the C ourt may consider 

this provision impermissible in cases in w hich a death sentence may be imposed. W ithout stating that 

the provision is constitutionally inadequate, it was suggested that, given the C ourt's close scrutiny of 

procedures used to impose the death penalty, the com m ittee m ight wish to consider w hether a smaller 

jury is w arranted. See generally Ballew v. Georgia, 435 U.S. 223, 232-39 (1978); Williams v. Florida, 399 

U.S. 78, 103 (1970).

658
Unanimity in jury verdicts is required where the Sixth 

and Seventh Amendments apply. In criminal cases this 

requirement of unanimity extends to all issues—character 

or degree of the crime, guilt and punishment—which are 

left to the jury. A verdict embodies in a single finding the 

conclusions by the jury upon all the questions submitted 

to it.

Id. at 748. The Court noted that its construction of the statute was 

more consonant with the history of the Anglo-American jury system 

than the construction urged by the government.

This issue has not been discussed in the recent cases upholding death 

penalty statutes. In Gregg v. Georgia, jury unanimity was required as to 

a finding of an aggravating circumstance. 428 U.S. 153, 207-08. In 

Proffitt v. Florida, 428 U.S. 242 (1976), the statute provided that the 

jury’s verdicts could be determined by majority vote, but the verdict is 

advisory only; the actual sentence is determined by the trial judge. Id.

at 248-49. In Jurek v. Texas, 428 U.S. 262 (1976), the Court noted that 

the Texas law is unclear as to the procedure to be followed in the event 

that the jury is unable to answer the questions regarding aggravating 

circumstances, but does require that the jury findings as to aggravating 

circumstances be unanimous. Id. at 269 n.5.

The Court has often repeated that the penalty of death is qualitatively different from any other sentence and calls for a greater degree 

of reliability in sentencing. Even if a majority vote would be permissible for determination of sentences less than death, it may not be permissible for capital punishment decisions. Concerns expressed by the Court 

in Ballew v. Georgia, 435 U.S. 223, 232-36 (1978), regarding comparative unreliability of verdicts reached by smaller juries, also arise when 

one contrasts majority votes with unanimous votes.

The procedure established by S. 114 also runs the risk of being 

labeled arbitrary. The Court has emphasized that it is of vital importance to the defendant and to the community that any decision to 

impose the death sentence be, and appear to be, based on reason rather 

than caprice or emotion. Gardner v. Florida, 430 U.S. 349, 358 (1977). 

Under S. 114, it is possible that only seven jurors would find that there 

is a reason to impose the death sentence but that all twelve would 

nevertheless approve the death penalty. This raises serious questions as 

to the actuality, as well as the appearance, of arbitrary decisionmaking 

rather than decisionmaking based on reason.15

15 Even if unanimity is not generally required in jury sentencing verdicts, it could be argued that 

for sentencing in capital cases, at least some o f the aggravating factors rise to the level of elements of 

the crime and thus must be found to exist by unanimous vote. In Jurek v. Texas, 428 U.S. 262 (1976), 

the Court approved the statute in question although it did not list aggravating circum stances to be 

considered, because Texas had limited the categories of m urders for which a death sentence could be 

imposed and thus accomplished the same result. Jurek could be read to suggest that the findings as to

659
S. 114 provides that at the sentence hearing, information may be 

presented as to any matter relevant to the sentence. It further provides 

that in addition to the trial transcript and exhibits, any other information relevant to any mitigating or aggravating factor, including those 

set forth in the bill, may be presented by either the government or the 

defendant. In the subsection concerning the return of findings, however, the bill provides: “It shall return special findings identifying any 

aggravating and mitigating factors, set forth in subsections (f), (g), and

(h), found to exist. ” (Emphasis added.) It is directed to weigh against 

any aggravating factors “any mitigating factors found to exist. . . . ” 

(Emphasis added.) There is, therefore, considerable ambiguity with 

respect to whether the drafters of S. 114 intended to circumscribe the 

jury’s consideration of mitigating factors. The summary Senate Committee Report is unilluminating on this point.

In Lockett v. Ohio, 438 U.S. 586, 604 (1978), the Court held that the 

sentencer cannot 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. Chief Justice Burger, writing for the Court, 

noted that the nonavailability of corrective or modifying mechanisms 

with respect to an executed capital sentence underscores the need for 

individualized consideration as a constitutional Orequirement in imposing the death sentence. In Lockett, the statute at issue provided that if a 

verdict of aggravated murder with specifications was returned, the trial 

judge must impose a death sentence unless, after “considering the 

nature and circumstances of the offense” and the defendant’s “history, 

character, and condition,” he found by a preponderance of the evidence 

that one of three mitigating factors were present. The Court rejected 

the contention that the language allowing the judge to consider other 

factors in determining whether any of the mitigating circumstances 

existed corrected the statute’s deficiency because, although these other 

factors could be considered, one of the enumerated factors had to be 

found to avoid imposition of the death penalty. Similarly, although S. 

114 allows the sentencer to consider all information received during the 

hearing, it appears that its findings may include only those mitigating 

factors listed in subsection (f), and it is only these mitigating factors 

that can be weighed against the aggravating factors found to exist. If 

the intent of the bill is to limit the mitigating factors which may be 

considered, it seems to violate the rule set forth in Lockett. If this is not 

the intent of the bill, this ambiguity should be clarified.

2. Limiting Consideration o f M itigating Factors

aggravating circum stances may be com pared for some purposes to the findings of the elements of the 

crime. Compare Muilaney v. Wilbur, 421 U.S. 684, 697-98 (1975) with Patterson v. New York, 432 U.S. 

197 (1977).

660
3. Allowing Admission of all Relevant Evidence Regardless o f Its

Admissibility Under the Rules of Evidence

S. 114 provides that either the Government or the defendant may 

present any information relevant to the sentence “regardless of its 

admissibility under the rules governing admission of evidence at criminal trials.” This modifies the section of S. 1382 which provided that any 

information relevant to any mitigating factor may be presented regardless of its admissibility under the rules governing admission of evidence 

at criminal trials, but that the admissibility of information relevant to 

any aggravating factor must be governed by such rules. H.R. 13360 

also provided that the rules of evidence would govern admission of 

evidence regarding aggravating circumstances.

In Gardner v. Florida, 430 U.S. 349 (1977), the Court ruled that the 

petitioner was denied due process when a judge, overruling the jury’s 

recommendation of a life sentence, imposed a death sentence based on 

information contained in a confidential presentence report. Justice 

Stevens, writing for a plurality, emphasized that the opportunity to 

challenge the accuracy or materiality of sentencing information is essential. Id. at 356. Although the practice in Gardner is distinguishable from 

the practice here questioned, the case raises questions as to the validity 

of eliminating the evidentiary requirements.

The Georgia statute approved in Gregg provides that the sentencing 

hearing is subject to the laws of evidence and that the jury or judge 

shall hear “evidence in extenuation, mitigation, and aggravation of 

punishment, including the record of any prior criminal convictions and 

pleas of guilty or pleas of nolo contendere of the defendant, or the 

absence of any such prior criminal convictions and pleas. . . .” See 428 

U.S. at 209 n.2. In discussing the requirement that a jury be given 

guidance in its decisionmaking, Justice Stewart noted that the provision 

of relevant information under “fair procedural rules” is one of the ways 

to guarantee that the information provided at the sentencing hearing 

will be properly used. Id. at 192. In rejecting petitioner’s objection to 

the wide scope of evidence and argument allowed at presentence hearings, the Court wrote:

We think that the Georgia court wisely has chosen not to 

impose unnecessary restrictions on the evidence that can 

be offered at such a hearing and to approve open and farranging argument. (Citation omitted.) So long as the 

evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for 

the jury to have as much information before it as possible 

when it makes the sentencing decision.

Id. at 203-04.

661
The current federal rules place no restriction on the type of information a court may consider in arriving at a sentencing determination. 

Section 3577 of Title 18 provides: “No limitation shall be placed on the 

information concerning the background, character, and conduct of a 

person convicted of an offense which a court of the United States may 

receive and consider for the purpose of imposing an appropriate sentence.” It is clear under Lockett that the sentencer may not be 

precluded from consideration of any mitigating factor. It is also clear, 

however, that fair procedural rules and a resulting greater degree of 

reliability are required in capital cases. This suggests that requiring 

adherence to the rules of evidence, at least for purposes of receiving 

information regarding aggravating circumstances, may be advisable. 

The Court’s discussion in Gregg makes it clear that open and farranging argument is possible even when the rules of evidence are 

observed. The Judiciary Committee report on the bill does not state 

why this change was made. S. Rep. No. 554, 96th Cong., 2d Sess. 15 

(1980). It merely notes that both parties are permitted to present arguments as to the adequacy of the information.

4. Vagueness o f Language Specifying Aggravating and Mitigating Factors

S. 114 specifies that one of the aggravating factors the sentencer shall 

consider is whether “the defendant committed the offense in an especially heinous, cruel, or depraved manner.” The issue raised by this 

language is whether it is so broad and vague as to give no guidance to 

the jury, yielding an arbitrary result and thus violating the Eighth 

Amendment. A similar challenge was made to certain statutory language in Gregg. Petitioner in Gregg challenged the language of three 

aggravating factors in the Georgia statute: (1) the section that authorizes the jury to consider whether a defendant has a “substantial history 

of serious assaultive criminal convictions” (Ga. Code Ann. § 27- 

2534.1(b)(1) (Supp. 1975)); (2) the section that speaks of creating a 

“great risk of death to more than one person” (Ga. Code Ann. § 27- 

2534.1(b)(3) (Supp. 1975)); and (3) the section authorizing the jury to 

consider whether the “offense of murder, rape, armed robbery, or 

kidnapping was outrageously or wantonly vile, horrible, or inhuman in 

that it involved torture, depravity of the mind, or an aggravated battery 

to the victim” (Ga. Code Ann. § 27-2534.1(b)(7) (Supp. 1975)). As to 

the first section, Justice Stewart noted that the Supreme Court of 

Georgia held this provision impermissibly vague in Arnold v. State, 236 

Ga. 534, 540, 224 S.E.2d 386, 391 (1976), because it did not provide the 

jury with sufficiently clear and objective standards. As to the second 

section, the Court conceded that the language of subsection (b)(3) 

might be susceptible to an overly broad interpretation, but stated that 

the Supreme Court of Georgia had not so construed it. The third 

section challenged, subsection (b)(7), most closely parallels the language

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in question in S. 114, which is arguably even more vague than § (b)(7). 

The petitioner challenged § (b)(7) as both overbroad and impermissibly 

vague. Again relying on narrow constructions of the language by the 

Georgia courts, these challenges were rejected. 428 U.S. at 201, 

202 n.54.

The language defining the aggravating circumstances in the Florida 

statute approved in Proffitt v. Florida, 428 U.S. 242, 255-57 (1976), also 

was asserted to be so vague and so broad that virtually any person 

convicted of a capital crime would be eligible for the death penalty. In 

particular, the petitioner attacked the language authorizing the death 

penalty if the crime is “especially heinous, atrocious, or cruel” or if 

“ft]he defendant knowingly created great risk of death to many persons.” Fla. Stat. Ann. § 921.141 (5)(c)(h) (Supp. 1976-1977). The Court 

again looked to interpretations by the state courts and decided that it 

could not conclude that the language “as so construed, provides inadequate guidance to those charged with the duty of recommending or 

imposing sentences in capital cases.” Id. at 255-56.

The Court has put all lower courts on notice, however, that it 

carefully will scrutinize application of these ambiguous provisions. In 

Godfrey v. Georgia, supra, the Court adhered to its ruling in Gregg that 

§ (b)(7) was not unconstitutional on its face. The plurality’s reading of 

the Georgia court’s interpretations of § (b)(7) led them to the conclusion, however, that the § (b)(7) circumstance cannot be found to exist 

absent serious physical abuse of the victim before death. Because no 

claim was made that Godfrey physically abused his victims before 

murdering them, the Court ruled that § (b)(7), as interpreted by the 

Georgia Supreme Court, had not been properly applied by that court in 

this case. Their decision was overturned because they did not constitutionally apply § (b)(7) to the facts and circumstances of the offense and 

the state of mind of the defendant.

The language of S. 114, referring to commission of the offense “in an 

especially heinous, cruel, or depraved manner,” is even broader than 

§ (b)(7) of the Georgia statute. It does not qualify these general terms 

by requiring a finding of “torture, depravity of mind, or an aggravated 

battery to the victim” as does the Georgia statute. Because any murder 

could be described as “heinous, cruel or depraved,” the provision, 

without additional qualifications, probably does not meet the constitutional requirements repeated in Godfrey, that the sentencer’s discretion 

be channeled by “clear and objective standards,” that provide “specific 

and detailed guidance,” and that “make rationally reviewable the process for imposing a sentence of death.” 446 U.S. at 428 (footnotes 

omitted).16

16 One of the statutory mitigating factors also may be too vague. S. 114 requires that the jury 

consider w hether the defendant was “ youthful at the time o f the crim e.” This vague phrase could

Continued

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S. 114 itself does not specify the sentences that may be imposed for 

capital crimes. It does, however, amend some of the substantive sections that do specify the elements of the crimes and the authorized 

sentences. Most of the crimes included must result in the death of the 

victim before the death penalty is authorized. There are two exceptions, 

however, for espionage (18 U.S.C. § 794(a)) and treason (18 U.S.C. 

§ 2381). The Court’s ruling in Coker, that the death penalty is unconstitutionally excessive in relation to the crime of rape of an adult woman, 

raises the question whether the death penalty is excessive in relation to 

any crime in which death does not result.17

In Coker, Justice White, speaking for the plurality, characterized the 

test first enunciated in Gregg as (1) whether the sentence makes a 

measurable contribution to acceptable goals of punishment, and (2) 

whether the sentence is grossly out of proportion to the crime. 433 U.S. 

at 592. The plurality examined the practice in other countries and the 

position taken by those states which had reinstated the death penalty 

after Furman and concluded that the modern approach was not to 

impose the death penalty for rape. It then brought its own judgment to 

bear on the question of the acceptability of the death penalty under the 

Eighth Amendment. It reasoned:

Rape is without doubt deserving of serious punishment; 

but in terms of moral depravity and of injury to the 

person and to the public, it does not compare with 

murder, which does involve the unjustified taking of 

human life. Although it may be accompanied by another 

crime, rape by definition does not include the death of or 

even the serious injury to another person. The murderer 

kills; the rapist, if no more than that, does not. Life is 

over for the victim of the murderer; for the rape victim, 

life may not be nearly so happy as it was, but it is not 

over and normally is not beyond repair. We have the 

abiding conviction that the death penalty, which “is 

unique in its severity and irrevocability,” Gregg v. .

5. Imposition o f the Death Penalty fo r Non-Homicidal Crimes

easily be amended to specify below w hat age a defendant should be considered ‘'youthful/' The 

Internationa] C ovenant on Civil and Political Rights, signed on D ecem ber 19, 1966, and entered into 

force on M arch 3, 1976, provides in A rticle 6, § 5, that the death sentence shall not be imposed for 

crimes com m itted by persons below 18 years o f age. This C ovenant was transmitted by the President 

to the Congress on February 23, 1978. T he Congress has held hearings on the C ovenant but has not 

yet acted. Four Treaties Pertaining to Human Rights: Message from the President o f the United States,

S. Exec. Doc. C, D, E, F, 95th Cong., 2d Sess. 25 (1978); International Human Rights Treaties:

Hearings on Exec. Doc. C, D, E, and F. 95-2. Four Treaties Relating to Human Rights Before the Senate

Committee on Foreign Relations, 96th Cong.. 1st Sess. (1979).

17 In his dissent in Coker. C hief Justice Burger w rote: “The clear implication o f today's holding 

appears to be that the death penalty may be properly imposed only as to crim es resulting in death of 

the victim. This casts serious doubt upon the constitutional validity of statutes imposing the death 

penalty for a variety o f conduct which, though dangerous, may not necessarily result in any immediate 

death, e.g, treason, airplane hijacking, and kidnapping.” 433 U.S. at 621.

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Georgia, 428 U.S. at 187, is an excessive penalty for the 

rapist who, as such, does not take human life.

433 U.S. at 598. The fact that one of the statutory aggravating circumstances had to be found before the death penalty could be imposed did 

not convince the plurality that the penalty was not excessive. It wrote 

that the aggravating circumstances “do not change the fact that the 

instant crime being punished is a rape not involving the taking of life.” 

Id. at 599.

Justices Brennan and Marshall concurred separately, reiterating their 

views that the death penalty is unconstitutional per se. Justice Powell 

concurred in the judgment that the death penalty was not appropriate 

in this case but dissented from that portion of the plurality opinion 

which suggested that the death penalty for rape would be excessive in 

all cases. Justices Burger and Rehnquist joined in dissent.

While S. 114 would eliminate the death penalty for rape, it would 

permit imposition of the penalty for treason and espionage if one of 

three aggravating factors was found to exist: (1) prior conviction of 

treason or espionage punishable by death or life imprisonment; (2) 

knowingly creating a grave risk of substantial danger to the national 

security; or (3) knowingly creating a grave risk of death to another 

person. In addition, the bill limits the instances in which the death 

penalty may be applied for espionage to those in which the information 

furnished involves nuclear weapons, spacecraft or satellites, early warning systems, or similar protections against large-scale attack, or war 

plans, communications intelligence, cryptographic information, or information on major weapons systems or defense strategy.

To determine whether the imposition of the death penalty is constitutional with respect to these offenses, one must determine whether it 

makes a measurable contribution to acceptable goals of punishment and 

whether it is excessive in proportion to the crime. While there as yet is 

no satisfactory resolution of the debate over the deterrent effect of the 

death penalty, it is reasonable to assume that a court will give deference 

to the legislative judgment on the deterrent effect as long as this 

judgment appears rational.

The second part of the test, whether the punishment is excessive with 

respect to the crime, is more difficult to assess. In Coker, the Court 

looked to the consensus among the states and the international community and the practice of juries in modern times, as well as to historic 

practice, to assess the relationship between the penalty and the offense. 

This is more difficult with respect to crimes as rare as treason and 

espionage of the magnitude covered in S. 114.

Reference to the practice of the states is not particularly instructive 

in this instance. While some states include provisions relating to espio665
nage or treason within their criminal codes,18 the crimes have generally been considered federal in nature. Thus, the judgment of state 

legislatures as to whether the death penalty is appropriate would seem 

to carry less weight with respect to these crimes than was the case with 

respect to rape.

Federal law has permitted the death penalty for treason since 1790 

and for espionage since 1917. However, of the 33 federal executions 

carried out from 1930 to 1970, only two were for espionage—the 

Rosenbergs—and there were none for treason although the imposition 

of the death penalty for treason was specifically upheld in Kawakita v. 

United States, 343 U.S. 717, 745 (1952). There were also six executions 

for the related crime of sabotage in 1942. The federal experience, then, 

is limited in practice and provides little guidance apart from the consistency with which statutory law has authorized the penalty.

The attitude of the international community demonstrates some consistency in viewing the death penalty as appropriate for these particular 

crimes. In a report on capital punishment to the United Nations, the 

Secretary General noted that many nations which have generally abolished capital punishment retain it for a few exceptional crimes such as 

those related to the security of the state. U.N. Economic and Social 

Council, Capital Punishment: Report o f the Secretary General, para. 18, 

U.N. Doc. E/5242 (1973). More specifically, the report notes, “The 

most common exceptional crimes punishable by death are treason and 

crimes relating to the security of the State.” Id. at para. 32. Tables 

appended to the report show that the majority of member nations of 

the United Nations retaining capital punishment—about 100—and that 

15 other nations, while abolishing capital punishment for ordinary 

crimes, retain it for exceptional crimes. Id. at Annex 1, 2-3. A 1975 

update of this report shows that the picture remains largely unchanged. 

U.N. Economic and Social Council, Capital Punishment: Report o f the

Secretary General, U.N. Doc. E/5616 (1975) Annex 1, 2-3. While the 

practice in other nations is not conclusive in interpreting the requirements of our own Constitution, it does constitute a factor which courts 

may well consider in determining whether the penalty of death is 

excessive as applied to treason or espionage.

Approaching the question as did the Court in Coker, the consistent 

view of Congress from the earliest days of the nation, and the agreement of most nations in the world today that treason warrants the 

death penalty in some cases, strongly argues for the conclusion that the 

penalty is not grossly disproportionate to the offense. This is particularly true in light of the aggravating factors in S. 114 that must be 

proved beyond a reasonable doubt before the penalty could be imposed. 

Applying these same criteria, it is likely that a court would find the

16 As reported in Bedau, D eath Penalty in Am erica, p. 43 (1967), 21 states included treason among 

capital crimes.

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death penalty for treason to be constitutional if imposed in accordance 

with the procedures established in S. 114.

Although the result is less clear with respect to the offense of espionage, as it is limited in S. 114, it too would likely be upheld. The 

espionage laws, however, do have an attribute not common to other 

capital offenses. In this particular area there are numerous reasons why 

the government might elect not to prosecute even the most aggravated 

act. Prosecution might require the disclosure of sensitive foreign intelligence and counterintelligence surveillance techniques. Or, it might 

compromise confidential informants or liaison relationships with foreign 

governments. At least until comprehensive “graymail” legislation is 

passed, there is also the significant possibility that prosecution will be 

frustrated by requirements that highly classified information be disclosed in court, or that the truth or falsity of sensitive information be 

confirmed by the government. Apart from evidentiary problems, espionage prosecutions invariably raise questions of foreign policy, and in 

some cases prosecution will be eschewed in favor of some political 

accommodation with a foreign government as proved recently to be the 

case with Soviet spies. These and other reasons render espionage prosecutions rare, and raise a question whether on close examination the 

Supreme Court would find the imposition of capital punishment for this 

crime to be so rare—and so “freakish”—as to run afoul of the Furman

reasoning.

In addition to treason and espionage, disproportionality questions 

may arise as to those crimes in which a death unintentionally results.

S. 114, as did the prior legislation, retains authorization for imposition 

of the death penalty for a number of federal felonies in which death 

results, even if there is no finding that the defendant committed the 

crime with the conscious purpose of causing death. That a legislature 

has authority to enact felony-murder statutes is beyond constitutional 

challenge. But, as Chief Justice Burger pointed out in Lockett, “the 

definition of crimes generally has not been thought automatically to 

dictate what should be the proper penalty.” 438 U.S. at 602. Together 

with Coker, Justice White’s opinion in Lockett (concurring in part and 

dissenting in part) raises questions as to the use of capital punishment 

for these crimes. In concurring in the judgment of the Court, Justice 

White states that he would hold that death may not be inflicted for 

killing consistent with the Eighth Amendment without a finding that 

the defendant engaged in conduct with the conscious purpose of producing death.19 He explained:

19 If Justice W hite’s analysis w ere to be adopted, the requirement in S. 114 that the defendant prove 

by a preponderance o f the evidence the mitigating factor that he “could not reasonably have foreseen 

that his conduct in the course of the commission of murder, or other offense . . . would cause, or 

would create a grave risk of causing, death to any person” also may raise constitutional issues. See

Mullaney v. Wilbur, supra note 15.

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The value of capital punishment as a deterrent to those 

lacking a purpose to kill is extremely attenuated. Whatever questions may be raised concerning the efficacy of 

the death penalty as a deterrent to intentional murders— 

and that debate rages on—its function in deterring individuals from becoming involved in ventures in which 

death may unintentionally result is even more doubtful. 

Moreover, whatever legitimate purposes the imposition of 

death upon those who did not intend to cause death might 

serve if inflicted with any regularity is surely dissipated 

by society’s apparent unwillingness to impose it upon 

other than an occasional and erratic basis. . . .

Under those circumstances the conclusion is unavoidable that the infliction of death upon those who had no 

intent to bring about the death of the victim is not only 

grossly out of proportion to the severity of the crime but 

also fails to contribute significantly to acceptable or, 

indeed, any perceptible goals of punishment.

438 U.S. at 625-26.

Justice Blackmun, commenting on Justice White’s analysis, conceded 

that it might be that to inflict the death penalty in some such situations 

would skirt the limits of the Eighth Amendment proscription against 

gross disproportionality, but doubted that the Court could arrive at a 

workable disproportionality approach. The plurality, in view of its 

holding that Lockett was not sentenced in accord with the Eighth 

Amendment, did not address her contention that the death penalty is 

constitutionally disproportionate for one who has not been proved to 

have taken life, or to have attempted to take life, or to have intended to 

take life. Id. at 609 n.16.

6. Lack o f Automatic Appellate Review

S. 114 would add a new section to Title 18—§ 3742—which would 

provide that the sentence of death shall be subject to review by the 

court of appeals upon appeal by the defendant. Such review would 

have priority over all other cases. S. 1382 contained a similar provision; 

H.R. 13360 provided for automatic review of all death sentences. In 

light of the Court’s emphasis on the automatic review provision in 

Gregg, and the broadened discretion exercised by sentencers under 

Lockett, the question arises whether review at the behest of the defendant is an adequate safeguard against the random or arbitrary imposition 

of the death penalty.

In Gregg, the plurality stated that the requirement that the state 

supreme court review every death sentence is an added safeguard that 

the penalty will not be imposed on a capriciously selected group of 

convicted defendants. In particular, the Court noted that the propor668
tionality review substantially eliminates the possibility that a person will 

be sentenced to die by the action of an aberrant jury. 428 U.S. at 206. 

In his concurrence, Justice White, joined by the Chief Justice and 

Justice Rehnquist, stated that the provision for appellate review is an 

important aspect of the legislative scheme. He noted that to assist it in 

deciding whether to sustain the death penalty, the state supreme court 

is supplied, in every case, with a report from the trial judge in the form 

of a standard questionnaire. The Texas statute at issue in Jurek, however, provided for review by appeal of the defendant. In concluding 

that the Texas capital sentencing procedures do not violate the Eighth 

and Fourteenth Amendments, the Court stated that “[b]y providing 

prompt judicial review of the jury’s decision in a court with statewide 

jurisdiction, Texas has provided a means to promote the evenhanded, 

rational, and consistent imposition of death sentences under law.” 428 

U.S. at 276.

In our view, it is unlikely that the Court would overturn a statute 

because it failed to provide for automatic review. The need to ensure 

that the death penalty is not “wantonly and freakishly” imposed even if 

the defendant refuses to appeal, and the need to review all death 

sentences in the jurisdiction adequately to determine disproportionality, 

are, however, important congressional considerations.20

These are the central constitutional questions which would likely be 

raised in litigation should S. 114 be enacted. They are also the issues 

that should be explored if the Department elects to urge the Senate to 

submit this bill to the Judiciary Committee for further review.

L a r r y A. H a m m o n d

Deputy Assistant Attorney General

Office of Legal Counsel

20 T he critical role o f appellate review is underscored by the Godfrey decision, in w hich the Court 

followed the principle set dow n in Gregg, that arguably vague and overbroad language is not facially 

unconstitutional because it cannot be assumed that a state supreme court will adopt an open-ended 

construction. In addition. Justice Marshall noted in his concurrence in Godfrey that since Gregg only 

three persons have been executed and tw o of them made no efTort to challenge their sentence.

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