Federal Capital Offenses: An Overview of Substantive and Procedural Law
Released: 2016-02-25T00:00:00

Introduction

Murder, committed under any of more than 50 jurisdictional circumstances, is a federal capital offense. So are treason, espionage, and certain drug kingpin offenses. The Federal Death Penalty Act and related provisions establish the procedure that must be followed before a defendant convicted of a federal capital offense may be executed.

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. 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. In fact, "[a]t the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State."

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. 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.

When the Supreme Court announced its decision in Furman v. Georgia , the number of federal capital murder offenses had increased, but the inventory of capital offenses that did not include death as an element had been reduced to rape, treason, and espionage.

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 first in air piracy cases, then in drug kingpin homicide cases, and finally as a general matter in the Federal Death Penalty Act. Now federal capital offenses are confined to espionage, treason, certain drug kingpin offenses (that do not involve murder), and murder under various jurisdictional circumstances.

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 v. Georgia runs less than a page. It simply states: "The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." 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. 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 deserving cases and only in the most deserving cases. 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. They felt the decision was incompatible with appropriate judicial constraint and the deference due the legislative prerogatives. 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.

Furman drew two responses. Some states sought to remedy arbitrary imposition of the death penalty by making capital punishment mandatory. Some states and Congress narrowed the category of cases in which the death penalty might be a sentencing option and crafted procedures designed to guide jury discretion in capital cases in order to equitably reduce the risk of random imposition. The Court in Woodson rejected the first approach, and in Gregg endorsed the second.

The Court has subsequently noted that Furman and Gregg "establish that a ... capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime."

With respect to eligibility for the death penalty, the Court declared "that capital punishment must 'be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.'" "Applying this principle, [the Court] held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime."

Moreover, the Eighth Amendment cannot accept imposition of the death penalty where it is disproportionate to the crime itself as, at least in some instances, "where the crime did not result, or was not intended to result, in death of the victim. In Coker , for instance, the Court held it would be unconstitutional to execute an offender who had raped an adult woman.... And in Enmund , the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place. On the other hand, in Tison , the Court allowed the defendants' death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial."

Imposition of the death penalty as punishment for a particular crime will be considered cruel and unusual when it is contrary to the "evolving standards of decency that mark the progress of maturing society." Those standards find expression in legislative enactments, prosecution practices, jury performance, and execution records, viewed in light of " the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose."

Once a defendant has been found to be a member of a capital punishment eligible class, the question becomes whether he is among that limited number within that class for whom the death penalty is an appropriate punishment. The Court, after Gregg , found acceptable sentencing schemes that reserved capital punishment for those cases in which the jury's consideration involved one or more aggravating factors and any mitigating factors. If an aggravating factor is not already required for eligibility, one must be found in the course of the individualized selection assessment. Aggravating factors must satisfy three requirements. "First the circumstance may not apply to every defendant convicted of the murder; it must apply only to a subclass of defendants convicted of murder. Second, the aggravating circumstance may not be constitutionally vague." Third, the aggravating circumstance may not be statutorily or constitutionally impermissible or irrelevant.

As for mitigating evidence, evidence must be received and considered "if the sentencer could reasonably find that it warrants a sentence less than death." The Constitution insists " that the jury be able to consider and give effect to a capital defendant's relevant mitigating evidence.... [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances."

The Eighth Amendment also condemns execution in a cruel and unusual manner. It proscribes any method of execution which presents an "objectively intolerable risk" that the method is "sure or very likely to cause serious illness and needless suffering." The federal and state capital punishment statutes all require, or at least permit, execution by lethal injunction. In Baze , the Court rejected an Eighth Amendment challenge which failed to show that the lethal injunction procedure at issue was sure or very likely to cause needless suffering.

Existing Federal Law

Existing federal law affords capital cases special treatment. There is no statute of limitations for capital offenses, but there is a preference for the trial of capital cases in the county in which they occur. The Attorney General must ultimately approve the decision to seek the death penalty in any given case. Defendants in capital cases are entitled to two attorneys, one of whom "shall be learned in the law applicable to capital cases." Defendants are entitled to notice when the prosecution intends to seek the death penalty, and at least three days before the trial, to a copy of the indictment as well as a list of the government's witnesses and names in the jury pool. Defendants have twice as many peremptory jury challenges in capital cases as in other felony cases and prosecutors more than three times as many.

Should the defendant be found guilty of a capital offense, the Furman/Gregg -inspired sentencing procedures set forth in the Federal Death Penalty Act come into play. The death penalty may be imposed under its provisions only after (1) the defendant is convicted of a capital offense; (2) in the case of murder, the defendant has been found to have acted with one of the required levels of intent; (3) the prosecution proves the existence of one or more of the statutory aggravating factors; and (4) the imbalance between the established aggravating factors and any mitigating factors justifies imposition of the death penalty.

Statute of Limitations and Related Matters

"An indictment for any offense punishable by death may be found at any time without limitation." This provision applies when the offense is statutorily punishable by death, even if the prosecution elects not to seek the death penalty or the jury fails to recommend it.

Prosecutorial options are somewhat more limited than this statement might imply. In rare cases, due process may preclude a stale prosecution even in the absence of a statute of limitations. The due process delay proscription only applies where the delay is the product of prosecutorial bad faith prejudicial to the defendant: "[A] pplicable statutes of limitations protect against the prosecution's bringing stale criminal charges against any defendant, and, beyond that protection, the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense."

Moreover, the statute of limitations only marks time from the commission of the crime to accusation, in the form of either arrest or indictment. Deadlines between accusation and trial are the province of the constitutional and statutory speedy trial provisions. Here too, the limits are not particularly confining in most instances. "The Sixth Amendment ... Speedy Trial Clause is written with such breadth that, taken literally, it would forbid the government to delay the trial of an 'accused' for any reason at all. [The] cases, however, have qualified the literal sweep of the provision by specifically recognizing the relevance of four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." The Speedy Trial Act provides a more detailed time table, but one that comes with a number of extensions and exclusions. All in all, time before trial is rarely a matter of the essence in a capital case.

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," 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."

Capital cases should be tried in the county in which they occur, when possible. Section 3236 directs that federal murder and manslaughter cases be tried where the death-inflicting injury occurs regardless of where the victim dies. Section 3237, on the other hand, permits multi-district crimes to be tried where they are begun, continued, or completed and declares that offenses 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.

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.

Justice Department Review

The decision to seek or not to seek the death penalty is ultimately that of the Attorney General. Under the procedure established in the United States Attorneys Manual, the United States Attorney where the trial is to occur files a recommendation with the Justice Department, ordinarily after conferring with the victim's family and in the case of a recommendation to seek the death penalty with defense counsel. The recommendation is referred to the Capital Review Committee. The Committee's task is to ensure that the decision to seek the death penalty reflects fairness, national consistency, statutory compliance, and law enforcement objectives. It makes its recommendation to the Attorney General through the Deputy Attorney General.

Appointment of Counsel

Capital defendants are entitled upon request to the assignment of two attorneys for their defense. There is some uncertainty over whether they are to be appointed immediately following indictment for a capital offense or whether they need only be appointed "promptly" sometime prior to trial; and whether the right expires with the decision of the government not to seek the death penalty. The federal appellate courts are divided over whether a lower court's erroneous refusal to appoint a second attorney in a capital case is presumptively prejudicial or if the defendant must still show that the error was prejudicial.

The trial court may authorize the payment of attorneys, investigators, experts, and other professional services reasonably necessary for the defense of indigent defendants charged with a capital offense. This does not entitle the accused to the attorney or expert of his choice or to a jury-selection expert. Moreover, removal of the defendant's attorney in a compensation dispute is not appealable until after the trial.

Pre-trial Notice of Intent to Seek the Death Penalty

Section 3593 obligates the prosecutor to advise the defendant and the court, "a reasonable time before trial" or before the acceptance of a plea, of the government's intention to seek the death penalty. 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 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.

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.

Prosecutors will sometimes provide 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. On the other hand, both the right to a speedy trial and the fact that the defendant in a capital case is not likely to be free on bail prior to trial may argue for such incentives for expeditious prosecutorial determinations.

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.

Capital Juries

The Sixth Amendment affords the accused the right to trial before an impartial jury. The Federal Death Penalty Act affords the defendant convicted of a capital offense the right to a jury for sentencing purposes. The accused may waive his right to a jury trial, either by pleading guilty or by agreeing to a trial by the court without a jury. A convicted defendant may also waive his right to a jury during the capital sentencing phase.

The prosecution, on the other hand, enjoys comparable prerogatives. It may insist upon a jury if there is to be a trial. It must also agree if the capital sentencing hearing is to be held before the court without a jury. Moreover, it too is entitled to an impartial jury. Thus, the Sixth Amendment permits the exclusion of those potential jurors who assert that they will not vote to impose the death penalty under any circumstances.

In most felony cases, the accused may peremptorily reject up to 10 potential jurors without regard to cause, and the prosecution may peremptorily reject up to 6. In a capital case, each side has 20 peremptory challenges. In the case of multiple defendants, the court may, but need not, allow the defendants additional challenges and may require they agree upon their challenges.

Death-Ineligible Offenders

Whether by statute, by constitutional command, or both, some offenders may not be exposed to a federal trial in which the prosecution seeks the death penalty for a federal capital offense; some may not be executed. A woman may not be executed while she is pregnant. Neither may a person who is mentally retarded be executed nor a person who lacks the mental capacity to understand that he is being executed and why.

The Federal Death Penalty Act may not be employed to charge a juvenile for a capital offense committed when the accused was under 18 years of age. An accused who is incompetent to stand trial may not be tried for a capital offense or any other crime. 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. 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.

Death-Eligible Offenses

Federal law permits imposition of the death penalty only where the defendant has been convicted of a death-eligible crime, where the aggravating and mitigating factors present in a particular case justify imposition of the penalty, and in a murder case where the defendant has been found to have the requisite intent for imposition of capital punishment.

Federal law divides death-eligible offenses into three categories. The one group consists of homicide offenses, another of espionage and treason, and a third of drug offenses that do not involve a killing. Most capital offenses involve a homicide. More defendants are sentenced to death for murder than for all of the other federal capital offenses.

Capital Homicide Offenses

Murder is a capital offense under more than 50 federal statutes. Some outlaw murder as such under various jurisdictional circumstances. Most, however, make some other offense, such as carjacking, a capital offense, if death results from its commission.

A defendant convicted of a capital offense may be executed, however, only if it is shown beyond doubt at a subsequent sentencing hearing that one of the statutory aggravating circumstances exists, and that he either (A) killed the victim intentionally; (B) intentionally inflicted serious injuries that resulted in the victim's death; (C) intentionally participated in an act, aware that it would expose a victim to life-threatening force, and the victim died as a consequence; or (D) intentionally engaged in an act of violence with reckless disregard of its life-threatening nature and the victim died as a consequence. The court will sometimes permit a separate preliminary jury proceeding to determine the existence of the requisite intent. Some courts have upheld the submission of all four mental states to the jury.

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 attacks.

The act-of-violence branch of the intent requirement "consists essentially of three elements. It requires first that the defendant has 'intentionally and specifically engaged in an act of violence.' Second, the defendant must have done so 'knowing that the act created a grave risk of death to a person ... such that participation in the act constituted a reckless disregard for human life.' Finally, 'the victim must have died as a direct result of the act.'" The Federal Death Penalty Act does not define "act of violence." It has been said to encompass the use of physical force which "creates a grave risk of serious injury or death."

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.

Aggravating Factors

Subsection 3592(c) of the Federal Death Penalty Act lists 16 statutory aggravating factors:

1. Death during commission of another crime. 2. Previous conviction of violent felony involving firearm. 3. Previous conviction of offense for which a sentence of death or life imprisonment was authorized. 4. Previous conviction of other serious offenses. 5. Grave risk of death to additional persons. 6. Heinous, cruel, or depraved manner of committing offense. 7. Procurement of offense by payment. 8. Pecuniary gain. 9. Substantial planning and premeditation. 10. Prior conviction for two felony drug offenses. 11. Vulnerability of victim. 12. Conviction for serious federal drug offenses. 13. Continuing criminal enterprise involving drug sales to minors. 14. High public officials. 15. Prior conviction of sexual assault or child molestation. 16. Multiple killings or attempted killings.

The jury may also consider any non-statutory aggravating factors which it finds beyond a reasonable doubt to exist. Justice Department approval forms once identified five possible non-statutory aggravating factors. These gave way to more generic instructions, also no longer available. At the present time, there does not appear be any publicly available information on the Justice Department's view of permissible non-statutory aggravating factors.

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 capital offenses:

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), 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).

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. 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. Citation of the predicate offense in the indictment is sufficient notification; the indictment need not recite the elements of the predicate offense.

Prior violent felony conviction involving a firearm: Prior state or federal conviction for an offense involving use of a firearm is a somewhat less frequently invoked statutory aggravating factor. The factor is triggered by the use, attempted use, or threatened use of a firearm in connection with the crime for which the defendant was previously convicted; involvement of a firearm need not be an element of the earlier offense.

Prior conviction for a capital offense: This statutory aggravating factor has apparently only been invoked infrequently. 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 (murder in a federal prison), murder committed against an employee of a federal penal or correctional institution.

Other prior convictions: Subsection 3592(c) features four other statutory aggravated 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.

The twin prior drug conviction statutory factors—(1) two or more prior felony drug convictions, and (2) a prior federal drug conviction for which the defendant was sentenced to imprisonment for five years or more —are not constitutionally suspect simply because they may be unrelated to the murder. As a consequence, the convictions may have occurred after the murder with respect to which they are aggravating factors. 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."

The factor covering two or more prior felony convictions involving infliction of serious bodily injuries 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.

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 and only with respect to defendants who have a prior conviction for sexual assault or child molestation.

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."

Heinous, cruel, or depraved manner: The "heinous, cruel, or depraved" aggravating factor has historically been troublesome because "[m]ost federal offenses that carry the death-penalty punishment could be fairly characterized as heinous, cruel, or depraved." Without more, it would be poorly suited to perform the necessary narrowing function required of an aggravating factor. 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." 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.'"

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.

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"—is cited with some regularity. It applies both to murders committed for gain received beforehand and to murders committed in anticipation of gain. 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.

Substantial planning and premeditation: The substantial planning aggravating factor reaches both murders where the planning and premeditation were directed at the murder and the planning and premeditation were directed at a terrorist offense. The factor requires the government to show a considerable amount of planning, but there is no need to show that the "defendant deliberated for any particular period of time." The steps taken in preparation for a murder will often bespeak substantial planning.

Victim vulnerability: The victim vulnerability factor looks to the victim's age, youth, or infirmity. It applies to disabilities, for instance, which impair the victim's ability to resist or flee the murderer. The prosecution does not have to establish that the defendant knew of the victim's vulnerability.

Drug dealing to children: The statutory aggravating factor for murder committed in the context of a large-scale drug trafficking enterprise that involves the trafficking 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.

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. 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.

Multiple killings or attempted killings: The multiple killing aggravating factor covers only cases in which the multiple killings or attempting killings occurred as part of the same criminal episode, and only cases occurring after the factor was added to the subsection in 1996.

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. Subsection 3593(a), on the other hand, mentions it as one of the factors that may be considered aggravating. 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. Shortly 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." 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.

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. 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, but the courts are otherwise reluctant to bar the admission of victim impact evidence.

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. It is understood to encompass "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." The 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. Establishing future dangerousness by reference to unadjudicated crimes or other forms of misconduct seems more readily accepted.

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." The Federal Death Penalty Act directs the finder of fact to consider any mitigating factor and permits the defendant to present any information relevant to a mitigating factor. This gives the defendant considerable latitude. Yet his options are not boundless. The evidence he offers must be relevant and not invite confusion or unfair prejudice. Moreover, the prosecutor may question the weight that a mitigating factor warrants.

Subsection 3592(b) of the Federal Death Penalty Act describes seven statutory factors and adds a catch-all that encompasses "other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence." The other seven cover:

1. Impaired capacity. 2. Duress. 3. Minor participation. 4. Equally culpable, disparate punished defendants. 5. No prior criminal record. 6. Disturbance. 7. Victim's consent.

The defendant is not entitled to mitigating consideration of "residual doubt" of his guilt. 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." Defendants have accordingly been allowed to present a wide range of non-statutory mitigation factors. Childhood hardships, remorse, and impact of the execution on the defendant's family are among the more common. 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.

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.

Treason is punishable by death or imprisonment for not less than five years and a fine of not less than $10,000.

Aggravating and Mitigating Factors

The death penalty for treason may only be imposed upon conviction, a finding of one or more of the statutory aggravating factors, and a determination that the aggravating factors outweigh any mitigating factors.

The mitigating factors in a treason case are the same as those in a murder case, seven statutory factors and one catch-all: impaired capacity; duress; minor participation; equally culpable but less severely punished defendants; absence of prior criminal record; mental disturbance; victim consent; and any other mitigating factor relating to the offender or the offense.

Different aggravating factors, however, apply in treason and espionage cases. The aggravating factors are four: prior treason or espionage conviction; grave risk to national security; grave risk of death; and "any other aggravating factor."

At one time, the Justice Department identified five non-statutory aggravating factors that might apply in capital treason or espionage cases and noted that the aggravating factors appropriate in a murder or drug cases might also serve in some instances. The five non-statutory factors were:

1. Participation in additional uncharged murders [attempted murders, or other serious acts of violence].

2. Obstruction of justice. [The victim was killed in an effort by the defendant to obstruct justice, tamper with a witness or juror, or in retaliation for cooperating with authorities].

3. Contemporaneous convictions for multiple murders, attempted murders, or other serious acts of violence.

4. Future dangerousness to the lives and safety of other persons, as evidenced by one or more of the following:

a. specific threats of violence,

b. continuing pattern of violence,

c. specific admissions of violence,

d. low rehabilitative potential,

e. lack of remorse,

f. mental evaluation, and/or

g. custody classification (escape risk).

5. Victim impact evidence concerning the effect of the offense on the victim and the victim's family as evidenced by oral testimony or a victim impact statement.

The Justice Department no longer publicly identifies potential non-statutory aggravating or mitigating factors in capital punishment cases involving treason.

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. The Court in Kennedy specifically distinguished this class of crimes from those involving violence against individuals. Each of the crimes presents considerations of its own and might under some circumstances survive scrutiny even under the individual violence standards. Nevertheless, it seems likely that any court confronting the issue would at a minimum consider the Kennedy standards (indicia of "the evolving standards of decency that mark the progress of a maturing society" read in conjunction with the Court's precedents).

Treason is the crime of which the Founding Fathers were most leery—so uneasy, in fact, 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."

Congress made treason a capital offense in the very first Congress, and so it has remained throughout. Congress ensured its status as a capital offense when it revived the death penalty in 1994. Treason is a state crime in at least 23 states, and a capital offense in 10 of those. State prosecutions are virtually unheard of, however. 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 only 1 since then.

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. 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. The Court affirmed the treason convictions in Haupt v. United States and Kawakita v. United States . None of the treasonous acts by Kawakita or Haupt involved the death of a victim.

The existing federal statute likewise permits capital punishment even in a deathless treason case. 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. 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. On other hand, most of those crimes are not capital offenses. 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.

Under the Federal Death Penalty Act, the death penalty does not follow inevitably from a treason conviction. Capital punishment is confined to those cases marked by one of the three aggravating factors and by the absence of countervailing mitigating factors. The national security factor might be considered a bit too open ended, but that defect, if it is one, might be cured by jury instruction or appellate construction. Of the three—treason, espionage, and murder-less drug kingpin offenses—commentators seem to consider treason the most likely to survive constitutional scrutiny.

Espionage

Espionage is a death-eligible offense under any of three conditions. First, it is a capital offense to disclose national defense information with the intent to injure the United States or aid a foreign government, if the disclosure results in the death of an American agent. Second, it is a capital offense to disclose information relating to major weapons systems or elements of U.S. defense strategy with the intent to injure the United States or aid a foreign government. Third, it is a capital offense to communicate national defense information to the enemy in time of war. The statutory aggravating and mitigating factors are the same as those used in treason cases.

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 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.

Until 1954 when Congress made peace time espionage a capital offense, espionage was only punishable by death when committed in time of war. 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.

Unlike treason, there are few state espionage statutes. Section 794 prosecutions occur with some regularity, but the last espionage execution apparently took place in 1953. Moreover, "[t]he death penalty jurisprudence for espionage is virtually nonexistent."

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.

Drug Kingpin (Continuing Criminal Enterprise)

Murder committed in furtherance of a drug kingpin (continuing criminal enterprise) offense is a capital crime. It is one of the many federal homicide offenses discussed earlier. Certain drug kingpin offenses, however, are capital offenses even though they do not involve a murder. A continuing criminal enterprise is one in which five or more individuals generate substantial income from drug trafficking. The leader of such an enterprise is subject to a mandatory term of life imprisonment, if the enterprise either realizes more than $10 million in gross receipts a year or traffics in more than 300 times of the quantity of controlled substances necessary to trigger the penalties for trafficking in heroin, methamphetamines, or other similarly categorized controlled substances under 21 U.S.C. 841(b)(1)(B).

A drug kingpin violation is a capital offense, if it involves twice the gross receipts or twice the controlled substances distributed necessary to trigger the life sentence, or if it involves the use of attempted murder to obstruct an investigation or prosecution of the offense.

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. Its mitigating factors are those that come with treason, espionage, or murder.

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 . 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. The evidence in support of a capital drug trafficking offense is mixed.

Drug trafficking is a crime in every state, but a capital offense in only one. Yet, Congress established it as the only modern federal capital offense when it revived the death penalty as a sentencing option generally in 1994. There have apparently not been any cases in which the death penalty has been imposed under either the state or federal trafficking statute, but there is little evidence that under compelling circumstances prosecutors would not pursue it, nor juries impose it. The crime sows human misery more deeply and more broadly than perhaps any other crime. Is that enough? The courts have said that death is a disproportionate punishment for the rape of a child, a "simple" murder, or even the most depraved murder by a juvenile. Will they nevertheless say death is not a disproportionate punishment for a drug kingpin offense?

Presenting and Weighing the Factors

The Federal Death Penalty Act establishes the same capital sentencing hearing procedures for all capital offenses—murder, treason, espionage, or murder-less drug kingpin offenses. The hearing is conducted only after the defendant has been found guilty of a death-eligible offense. It is held before a jury, unless the parties agree otherwise. The prosecution and the defense are entitled to offer and rebut relevant evidence in aggravation and mitigation without regard to the normal rules of evidence in criminal proceedings. "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."

As noted earlier, 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. Some also question whether prosecutors are free to argue that the death penalty is made more appropriate by a defendant's insistence of his right to a trial.

The prosecution bears the burden of establishing the existence of aggravating factors and the defendant of establishing mitigating factors. The burdens, however, are not even. The prosecution must show proof beyond a reasonable doubt; the defendant a less demanding proof by a preponderance of the evidence. The finding on aggravating circumstances must be unanimous; the finding on mitigating circumstances need only be espoused by a single juror.

Capital punishment may only be recommended and imposed, if the jurors all agree that the aggravating factors sufficiently outweigh the mitigating factors to an extent that justifies imposition of the death penalty. If they find the death penalty justified, they must recommend it. If they recommend the death penalty, the court must impose it. If they cannot agree, the defendant must be sentenced to a term of imprisonment, most often to life imprisonment.

Appellate Review

A defendant sentenced to death is entitled to review by the court of appeals. The defendant is entitled to relief if the court determines that (1) the sentence was the product of passion, prejudice, or other arbitrary factor; (2) the finding of at least one statutory aggravating factor cannot be supported by the record; or (3) there exists some other legal error that requires the sentence to be overturned. Convictions and sentences imposed in a capital case are subject to normal appellate and collateral review as well.

Execution of Sentence

Once all opportunities for appeal and collateral review have been exhausted, a defendant sentenced to death is executed pursuant to the laws of the state where the sentence was imposed, or if necessary, pursuant to the laws of a state designated by the court. The United States Marshal has the authority to use state or local facilities and personnel to carry out the execution. The regulations permit 6 defense witnesses and 18 public witnesses to attend the execution. Video and audio recording are forbidden.

Federal Crimes Punishable by Death (Citations)

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 (death resulting from destruction of aircraft or their facilities)

18 U.S.C. 33 (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 (1 st 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)

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)

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)