beyond a reasonable doubt at a hearing under sec-
tion 3593, caused the death of a person inten-
tionally, knowingly, or through recklessness mani-
festing extreme indifference to human life, or caused
the death of a person through the intentional inflic-
tion of serious bodily injury;
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 impo-
sition of a sentence of death is justified: Provided, That
no person may be sentenced to death who was less than
eighteen years of age at the time of the offense or who
is mentally retarded.
‘‘§ 3592. Factors to be considered in determining
whether a sentence of death is justified
‘‘(a) MITIGATING FACTORS.—In determining wheth-
er a sentence of death is justified for any offense, the jury,
or if there is no jury, the court, shall consider each of
the following mitigating factors and determine which, if
any, exist:
‘‘(1) MENTAL
CAPACITY.—The defendant’s
mental capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the require-
ments of law was significantly impaired, regardless
of whether the capacity was so impaired as to con-
stitute a defense to the charge.
‘‘(2) DURESS.—The defendant was under un-
usual and substantial duress, regardless of whether
the duress was of such a degree as to constitute a
defense to the charge.
‘‘(3) PARTICIPATION IN OFFENSE MINOR.—The
defendant’s participation in the offense, which was
committed by another, was relatively minor, regard-
less of whether the participation was so minor as to
constitute a defense to the charge.
‘‘(4) NO
SIGNIFICANT
CRIMINAL
HISTORY.—
The defendant did not have a significant history of
other criminal conduct.
‘‘(5) DISTURBANCE.—The defendant committed
the offense under severe mental or emotional dis-
turbance.
‘‘(6) VICTIM’S CONSENT.—The victim consented
to the criminal conduct that resulted in the victim’s
death.
The jury, or if there is no jury, the court, shall consider
whether any other aspect of the defendant’s background,
character or record or any other circumstance of the of-
fense that the defendant may proffer as a mitigating fac-
tor exists.
‘‘(b) AGGRAVATING FACTORS FOR ESPIONAGE AND
TREASON.—In determining whether a sentence of death
is justified for an offense described in section 3591(a), the
jury, or if there is no jury, the court, shall consider each
of the following aggravating factors and determine which,
if any, exist:
‘‘(1) PREVIOUS ESPIONAGE OR TREASON CON-
VICTION.—The defendant has previously been con-
victed of another offense involving espionage or trea-
son for which a sentence of life imprisonment or
death was authorized by statute.
‘‘(2) RISK OF SUBSTANTIAL DANGER TO NA-
TIONAL SECURITY.—In the commission of the of-
fense the defendant knowingly created a grave risk
to the national security.
‘‘(3) RISK
OF
DEATH
TO
ANOTHER.—In the
commission of the offense the defendant knowingly
created a grave risk of death to another person.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘(c) AGGRAVATING FACTORS FOR HOMICIDE AND
FOR ATTEMPTED MURDER OF THE PRESIDENT.—In de-
termining whether a sentence of death is justified for an
offense described in section 3591 (b) or (f), the jury, or
if there is no jury, the court, shall consider each of the
following aggravating factors and determine which, if any,
exist:
‘‘(1) CONDUCT OCCURRED DURING COMMISSION
OF SPECIFIED CRIMES.—The conduct 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 (de-
struction of aircraft or aircraft facilities), section 33
(destruction of motor vehicles or motor vehicle facili-
ties), section 36 (violence at international airports),
section 351 (violence against Members of Congress,
Cabinet officers, or Supreme Court Justices), section
751 (prisoners in custody of institution or officer),
section 794 (gathering or delivering defense informa-
tion 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 844(i)
(destruction of property affecting interstate com-
merce by explosives), section 1116 (killing or at-
tempted killing of diplomats), section 1118 (pris-
oners serving life term), section 1201 (kidnapping),
section 1203 (hostage taking), section 1751 (violence
against the President or Presidential staff), section
1992 (wrecking trains), section 2280 (maritime vio-
lence), section 2281 (maritime platform violence),
section 2331 (terrorist acts abroad against United
States nationals), section 2332 (use of weapons of
mass destruction), or section 2381 (treason) of this
title, section 1826 of title 28 (persons in custody as
recalcitrant witnesses or hospitalized following insan-
ity acquittal), or section 902 (i) or (n) of the Fed-
eral Aviation Act of 1958, as amended (49 U.S.C.
App. 1472 (i) or (n) (aircraft piracy)).
‘‘(2) INVOLVEMENT OF FIREARM OR PREVIOUS
CONVICTION OF VIOLENT FELONY INVOLVING FIRE-
ARM.—The defendant—
‘‘(A) during and in relation to the commis-
sion of the offense or in escaping or attempting
to escape apprehension used or possessed a fire-
arm as defined in section 921 of this title; or
‘‘(B) has previously been convicted of a
Federal or State offense punishable by a term
of imprisonment of more than one year, involv-
ing the use of attempted or threatened use of
a firearm, as defined in section 921 of this title,
against another person.
‘‘(3) PREVIOUS CONVICTION OF OFFENSE FOR
WHICH A SENTENCE OF DEATH OR LIFE IMPRISON-
MENT WAS AUTHORIZED.—The defendant has pre-
viously been convicted of another Federal or State
offense resulting in the death of a person, for which
a sentence of life imprisonment or death was author-
ized by statute.
‘‘(4) PREVIOUS CONVICTION OF OTHER SERI-
OUS OFFENSES.—The defendant has previously been
convicted of two or more Federal or State offenses,
each punishable by a term of imprisonment of more
than one year, committed on different occasions, in-
volving the importation, manufacture, or distribution
of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802))
or the infliction of, or attempted infliction of, serious
bodily injury or death upon another person.
‘‘(5) GRAVE RISK OF DEATH TO ADDITIONAL
PERSONS.—The defendant, in the commission of the
offense or in escaping or attempting to escape ap-
prehension, knowingly created a grave risk of death
to one or more persons in addition to the victim of
the offense.
‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER
OF COMMISSION.—The defendant committed the of-
fense in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical
abuse to the victim.
‘‘(7) PROCUREMENT
OF
OFFENSE
BY
PAY-
MENT.—The defendant procured the commission of
the offense by payment, or promise of payment, of
anything of pecuniary value.
‘‘(8) COMMISSION OF THE OFFENSE FOR PECU-
NIARY GAIN.—The defendant committed the offense
as consideration for the receipt, or in the expectation
of the receipt, of anything of pecuniary value.
‘‘(9) 
SUBSTANTIAL
PLANNING
AND
PREMEDITATION.—The defendant committed the of-
fense after substantial planning and premeditation.
‘‘(10) VULNERABILITY OF VICTIM.—The victim
was particularly vulnerable due to old age, youth, or
infirmity.
‘‘(11) TYPE OF VICTIM.—The defendant com-
mitted 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 was no Vice President, the officer
next in order of succession to the office of the
President of the United States, or any person
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) of this title, if that official was
in the United States on official business; or
‘‘(D) a Federal public servant who was
outside of the United States or who was a Fed-
eral judge, a Federal law enforcement officer,
an employee (including a volunteer or contract
employee) of a Federal prison, or an official of
the Federal Bureau of Prisons—
‘‘(i) while such public servant was en-
gaged in the performance of his official du-
ties;
‘‘(ii) because of the performance of
such public servant’s official duties; or
‘‘(iii) because of such public servant’s
status as a public servant.
For purposes of this paragraph, the terms ‘Presi-
dent-elect’ and ‘Vice President-elect’ mean such per-
sons as are the apparent successful candidates for
the offices of President and Vice President, respec-
tively, as ascertained from the results of the general
elections held to determine the electors of President
and Vice President in accordance with title 3, Unit-
ed States Code, sections 1 and 2; a ‘Federal law en-
forcement officer’ is a public servant authorized by
law or by a Government agency or Congress to con-
duct or engage in the prevention, investigation, or
prosecution of an offense; ‘Federal prison’ means a
Federal correctional, detention, or penal facility,
Federal community treatment center, or Federal
halfway house, or any such prison operated under
contract with the Federal Government; and ‘Federal
judge’ means any judicial officer of the United
States, and includes a justice of the Supreme Court
and a United States magistrate judge.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘(d) AGGRAVATING FACTORS FOR DRUG OFFENSE
DEATH PENALTY.—In determining whether a sentence of
death is justified for an offense described in section
3591(c)-(e), the jury, or if there is no jury, the court, shall
consider each of the following aggravating factors and de-
termine which, if any, exist—
‘‘(1) PREVIOUS CONVICTION OF OFFENSE FOR
WHICH A SENTENCE OF DEATH OR LIFE IMPRISON-
MENT WAS AUTHORIZED.—The defendant has pre-
viously been convicted of another Federal or State
offense resulting in the death of a person, for which
a sentence of life imprisonment or death was author-
ized by statute.
‘‘(2) PREVIOUS CONVICTION OF OTHER SERI-
OUS OFFENSES.—The defendant has previously been
convicted of two or more Federal or State offenses,
each punishable by a term of imprisonment of more
than one year, committed on different occasions, in-
volving the importation, manufacture, or distribution
of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802))
or the infliction of, or attempted infliction of, serious
bodily injury or death upon another person.
‘‘(3) PREVIOUS SERIOUS DRUG FELONY CONVIC-
TION.—The defendant has previously been convicted
of another Federal or State offense involving the
manufacture, distribution, importation, or possession
of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802))
for which a sentence of five or more years of impris-
onment was authorized by statute.
‘‘(4) USE OF FIREARM.—In committing the of-
fense, or in furtherance of a continuing criminal en-
terprise of which the offense was a part, the defend-
ant used a firearm or knowingly directed, advised,
authorized, or assisted another to use a firearm, as
defined in section 921 of this title, to threaten, in-
timidate, assault, or injure a person.
‘‘(5) DISTRIBUTION TO PERSONS UNDER TWEN-
TY-ONE.—The offense, or a continuing criminal en-
terprise of which the offense was a part, involved
conduct proscribed by section 418 of the Controlled
Substances Act which was committed directly by the
defendant or for which the defendant would be liable
under section 2 of this title.
‘‘(6) DISTRIBUTION NEAR SCHOOLS.—The of-
fense, or a continuing criminal enterprise of which
the offense was a part, involved conduct proscribed
by section 419 of the Controlled Substances Act
which was committed directly by the defendant or
for which the defendant would be liable under sec-
tion 2 of this title.
‘‘(7) USING MINORS IN TRAFFICKING.—The of-
fense or a continuing criminal enterprise of which
the offense was a part, involved conduct proscribed
by section 420 of the Controlled Substances Act
which was committed directly by the defendant or
for which the defendant would be liable under sec-
tion 2 of this title.
‘‘(8) LETHAL ADULTERANT.—The offense in-
volved the importation, manufacture, or distribution
of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)),
mixed with a potentially lethal adulterant, and the
defendant was aware of the presence of the
adulterant.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘§ 3593. Special hearing to determine whether a sen-
tence of death is justified
‘‘(a) NOTICE BY THE GOVERNMENT.—Whenever the
Government intends to seek the death penalty for an of-
fense described in section 3591, the attorney for the Gov-
ernment, a reasonable time before the trial, or before ac-
ceptance by the court of a plea of guilty, or at such time
thereafter as the court may permit upon a showing of good
cause, shall sign and file with the court, and serve on the
defendant, a notice that the Government in the event of
conviction will seek the sentence of death. The notice shall
set forth the aggravating factor or factors enumerated in
section 3592, and any other aggravating factor not specifi-
cally enumerated in section 3592, that the Government,
if the defendant is convicted, will seek to prove as the basis
for the death penalty. The factors for which notice is pro-
vided under this subsection may include factors concerning
the effect of the offense on the victim and the victim’s
family. The court may permit the attorney for the Govern-
ment to amend the notice upon a showing of good cause.
‘‘(b) HEARING BEFORE A COURT OR JURY.—When
the attorney for the Government has filed a notice as re-
quired under subsection (a) and the defendant is found
guilty of an offense described in section 3591, the judge
who presided at the trial or before whom the guilty plea
was entered, or another judge if that judge is unavailable,
shall conduct a separate sentencing hearing to determine
the punishment to be imposed. Prior to such a hearing,
no presentence report shall be prepared by the United
States Probation Service, notwithstanding the provisions
of the Federal Rules of Criminal Procedure. The hearing
shall be conducted—
‘‘(1) before the jury that determined the de-
fendant’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 defend-
ant’s guilt was discharged for good cause; or
‘‘(D) after initial imposition of a sentence
under this section, reconsideration of the sen-
tence under the section is necessary; or
‘‘(3) before the court alone, upon motion of the
defendant and with the approval of the attorney for
the Government.
A jury impaneled pursuant to paragraph (2) shall consist
of twelve members, unless, at any time before the conclu-
sion of the hearing, the parties stipulate, with the approval
of the court, that it shall consist of a lesser number.
‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC-
TORS.—At the hearing, information may be presented as
to—
‘‘(1) any matter relating to any mitigating fac-
tor listed in section 3592 and any other mitigating
factor; and
‘‘(2) any matter relating to any aggravating
factor listed in section 3592 for which notice has
been provided under subsection (a) and (if informa-
tion is presented relating to such a listed factor) any
other aggravating factor for which notice has been
so provided.
The information presented may include the trial transcript
and exhibits. Any other information relevant to such miti-
gating or aggravating factors may be presented by either
the Government or the defendant. The information pre-
sented by the Government in support of factors concerning
the effect of the offense on the victim and the victim’s
family may include oral testimony, a victim impact state-
ment that identifies the victim of the offense and the na-
ture and extent of harm and loss suffered by the victim
and the victim’s family, and other relevant information.
Information is admissible regardless of its admissibility
under the rules governing admission of evidence at crimi-
nal trials, except that information may be excluded if its
probative value is outweighed by the danger of creating
unfair prejudice, confusing the issues, or misleading the
jury. The attorney for the Government and for the defend-
ant shall be permitted to rebut any information received
at the hearing, and shall be given fair opportunity to
present argument as to the adequacy of the information
to establish the existence of any aggravating or mitigating
factor, and as to the appropriateness in that case of im-
posing a sentence of death. The attorney for the Govern-
ment shall open the argument. The defendant shall be per-
mitted to reply. The Government shall then be permitted
to reply in rebuttal. The burden of establishing the exist-
ence of an aggravating factor is on the Government, and
is not satisfied unless the existence of such a factor is es-
tablished beyond a reasonable doubt. The burden of estab-
lishing the existence of any mitigating factor is on the de-
fendant, and is not satisfied unless the existence of such
a factor is established by a preponderance of the evidence.
‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or
if there is no jury, the court, shall consider all the informa-
tion 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 aggra-
vating 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 one 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 es-
tablished. 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.
‘‘(e) RETURN OF A FINDING CONCERNING A SEN-
TENCE OF DEATH.—If, in the case of—
‘‘(1) an offense described in section 3591(a), an
aggravating factor required to be considered under
section 3592(b) is found to exist;
‘‘(2) an offense described in section 3591 (b) or
(f), an aggravating factor required to be considered
under section 3592(c) is found to exist; or
‘‘(3) an offense described in section 3591(c)-(e),
an aggravating factor required to be considered
under section 3592(d) is found to exist;
the jury, or if there is no jury, the court, shall then con-
sider whether the aggravating factor or factors found to
exist under subsection (d) outweigh any mitigating factor
or factors. The jury, or if there is no jury, the court shall
recommend a sentence of death if it unanimously finds at
least one aggravating factor and no mitigating factor or
if it finds one or more aggravating factors which outweigh
any mitigating factors. In any other case, it shall not rec-
ommend a sentence of death. The jury shall be instructed
that it must avoid any influence of sympathy, sentiment,
passion, prejudice, or other arbitrary factors in its deci-
sion, and should make such a recommendation as the in-
formation warrants.
‘‘(f) SPECIAL PRECAUTION TO ASSURE AGAINST DIS-
CRIMINATION.—In a hearing held before a jury, the court,
before the return of a finding under subsection (e), shall
instruct the jury that, in considering whether a sentence
of death is justified, it shall not be influenced by prejudice
or bias relating to the race, color, religion, national origin,
or sex of the defendant or of any victim and that the jury
is not to recommend a sentence of death unless it has con-
cluded that it would recommend a sentence of death for
the crime in question no matter what the race, color, reli-
gion, national origin, or sex of the defendant or of any
victim may be. The jury, upon return of a finding under
subsection (e), shall also return to the court a certificate,
signed by each juror, that prejudice or bias relating to the
race, color, religion, national origin, or sex of the defend-
ant or any victim was not involved in reaching his or her
individual decision and that the individual juror would
have made the same recommendation regarding a sentence
for the crime in question no matter what the race, color,
religion, national origin, or sex of the defendant or any
victim may be.
‘‘§ 3594. Imposition of a sentence of death
‘‘Upon the recommendation under section 3593(e)
that a sentence of death be imposed, the court shall sen-
tence the defendant to death. Otherwise the court shall
impose a sentence, other than death, authorized by law.
Notwithstanding any other provision of law, if the maxi-
mum term of imprisonment for the offense is life imprison-
ment, the court may impose a sentence of life imprison-
ment without the possibility of release.
‘‘§ 3595. Review of a sentence of death
‘‘(a) APPEAL.—In a case in which a sentence of death
is imposed, the sentence shall be subject to review by the
court of appeals upon appeal by the defendant. Notice of
appeal of the sentence must be filed within the time speci-
fied for the filing of a notice of appeal of the judgment
of conviction. An appeal of the sentence under this section
may be consolidated with an appeal of the judgment of
conviction and shall have priority over all other cases.
‘‘(b) REVIEW.—The court of appeals shall review the
entire record in the case, including—
‘‘(1) the evidence submitted during the trial;
‘‘(2) the information submitted during the sen-
tencing hearing;
‘‘(3) the procedures employed in the sentencing
hearing; and
‘‘(4) the special findings returned under section
3593(d).
‘‘(c) DECISION AND DISPOSITION.—
‘‘(1) If the court of appeals determines that—
‘‘(A) the sentence of death was not im-
posed under the influence of passion, prejudice,
or any other arbitrary factor;
‘‘(B) the evidence and information support
the special findings of the existence of an ag-
gravating factor or factors; and
‘‘(C) the proceedings did not involve any
other prejudicial error requiring reversal of the
sentence that was properly preserved for and
raised on appeal;
it shall affirm the sentence.
‘‘(2) In any other case, the court of appeals
shall remand the case for reconsideration under sec-
tion 3593 or for imposition of another authorized
sentence as appropriate, except that the court shall
not reverse a sentence of death on the ground that
an aggravating factor was invalid or was not sup-
ported by the evidence and information if at least
one aggravating factor required to be considered
under section 3592 remains which was found to
exist and the court, on the basis of the evidence sub-
mitted at trial and the information submitted at the
sentencing hearing, finds no mitigating factor or
finds that the remaining aggravating factor or fac-
tors which were found to exist outweigh any mitigat-
ing factors.
‘‘(3) The court of appeals shall state in writing
the reasons for its disposition of an appeal of a sen-
tence of death under this section.