The Death Penalty: Capital Punishment Legislation in the 110th Congress
Released: 2008-10-15T00:00:00

Introduction

Most capital punishment cases are state cases. There are several federal crimes, however, for which the death penalty is a sentencing option. Legislation to amend federal capital punishment law introduced in the 110 th Congress included proposals to amend the Constitution to remove impediments to imposition of the death penalty, to abolish the federal death penalty, to increase the number of federal capital offenses, and to adjust the procedure under which capital cases are tried and sentencing determinations are made. None were enacted. This is an overview of some of those proposals.

Constitutional Amendments

The United States Constitution does not mention capital punishment or death penalty in so many words. It does, however, prohibit imposition of cruel and unusual punishments as well as the deprivation of life without due process of law. The Supreme Court recently held that the Eighth Amendment cruel and unusual punishment clause made applicable to the states through the due process clause of the Fourteenth Amendment precludes imposition of the death penalty for rape of child under twelve years of age when the victim was neither killed nor intended to be killed.

Two constitutional amendments were offered at least in partial response. H.J.Res. 96 (Representative Chabot) would simply have amended the Constitution to state that "The penalty of death for the forcible rape of a child who has not attained the age of 12 years does not constitute cruel and unusual punishment." H.J.Res. 83 (Representative Broun) is equally terse although seemingly more sweeping: "The death penalty is permitted under the Constitution and does not constitute cruel and usual punishment, including when the death penalty is imposed for the rape of a child under sixteen years old." Both proposals would have removed any Eighth Amendment impediment to capital punishment as a sentencing option in child rape cases. The Broun proposal was apparently designed to remove any Eighth Amendment impediment to capital punishment as a sentencing option in any case. At some point, due process concerns may have contained the sweep of the proposals had they been accepted.

H.J.Res. 80 (Representative McCollum), in contrast, would have abolished capital punishment as a sentencing alternative for either state or federal crimes. The proposed amendment would have extended to both pending and subsequent capital cases.

Current Procedure

Existing federal law treats capital cases differently. There is no statute of limitations for capital offenses. There is a preference for the trial of capital cases in the county in which they occur. Defendants in capital cases are entitled to two attorneys, one of whom "shall be learned in the law applicable to capital cases." The Attorney General must ultimately approve the decision to seek the death penalty in any given case. 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 sentencing hearing procedures set forth in chapter 228 of title 18 of the United States Code come into play.

The chapter divides federal capital offenses into three categories for purposes of determining whether the death penalty should be imposed in light of the aggravating and mitigating facts presented in the case. The first group consists of espionage and treason; the second, of homicide offenses; and the third, of drug offenses.

In homicide cases, the sentencing hearing involves two determinations: whether the defendant acted with the intent required in section 3591(a)(2) of the chapter and whether the weighing of the pertinent aggravating and mitigating circumstances warrant imposition of the death penalty in section 3592(c). In order to keep the two inquiries distinct and to avoid confusion and unfair prejudice, federal courts will generally permit the inquiries to be conduct sequentially.

The same list of mitigating factors applies to each of the three categories of capital offenses. The list consists of seven specific statutory factors – impaired capacity, minor participation, disparate treatment of codefendants, no prior criminal record, mental or emotional disturbance, and victim consent – but also includes a catch-all, open-ended factor.

Each of the three categories has its own list of statutory aggravating factors. They share a catch-all, open-ended aggravating factor available for each of the three categories of capital offenses which the jury may weigh, but the death penalty may only be imposed after first finding at least one of the more specific, designated aggravating factors.

The list of designated aggravating factors relating to espionage and treason is the shortest of the three: prior espionage or treason conviction, grave risk to national security, and grave risk of death. The list of the designated homicide aggravating factors contains sixteen entries, including the fact that the murder was committed during the course of one of group of other federal offenses. The drug aggravating factors focus on prior convictions, the risk to children, the use of firearms, and lethal adulteration.

The jury must unanimously agree that an aggravating factor has been established before the factor may be weighed in determining whether to impose the death penalty; on the other hand the finding of a single juror is sufficient for consideration of a mitigating factor. The death penalty may only be imposed if the jury unanimously finds that the aggravating factors outweigh the mitigating factors; or if the court so finds in the absence of a jury.

Procedural Changes

During the 110 th Congress, proposals were offered that would have modified existing law relating to:

- where a capital offense may be tried,

- the appointment of counsel in capital cases,

- the pre-trial notification which the parties must exchange in capital cases,

- the procedures that apply when the defendant claims to be mentally retarded,

- adjustments in the statutory aggravating and mitigating circumstances,

- jury matters, and

- the site of federal executions.

Venue and Vicinage

Generally

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." From the beginning, Congress has provided in language that now appears in 18 U.S.C. 3235, that where possible capital cases should be tried in the county in which they occur. It has also long specifically provided that murder and manslaughter cases shall be tried where the death- inflicting injury occurs regardless of where the victim dies, as 18 U.S.C. 3236 now states. Furthermore, for some time it has provided in the words of 18 U.S.C. 3237 that multi-district crimes may be tried where they are begun, continued, or completed and 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.

Although some of the venue proposals offered in the 110 th Congress dealt primarily with venue for newly created or newly amended federal capital offenses, H.R. 3156 (Representative Lamar Smith) and S. 1860 (Senator Cornyn) addressed venue in capital cases generally. They struck the language of section 3235 that calls for the trial of capital cases in the county in which they occur if possible. In its place, they would have installed two subsections whose precise scope was somewhat uncertain.

The proposal was apparently intended to repeal both the "county trial in capital cases" feature of section 3235 and, by indirection, the murder portion of the "murder-manslaughter trial" feature of section 3236. It seemed to replicate the continuing offense language of section 3237 with one significant addition; it would have permitted trial where commerce-related conduct occurred. The scope of the proposed amendment would likely have depended in part on the application of constitutional constraints.

The proposed amendment must operate within constitutional venue and vicinage limitations, that is that "The trial of all crimes . . . shall be held in the state where the said crimes shall have been committed," 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."

The Supreme Court in United States v. Cabrales held that in light of these provisions the crime of money laundering committed in Florida could not be tried in Missouri where the laundered funds had been criminally generated – absent other circumstances. Shortly thereafter, the Court held in United States v. Rodriguez-Moreno , that the crime of using a firearm during and in relation to the crime of kidnaping could be tried in New Jersey into which the victim had been carried, notwithstanding the fact that the firearm was acquired and used in Maryland after the victim had been moved there from New Jersey.

Cabrales is not as restrictive as it might seem at first; nor is Rodriguez-Moreno as permissive. Cabrales laundered the Missouri drug money in Florida, but there was no evidence that she was a member of the Missouri drug trafficking conspiracy or that she had transported the money from Missouri to Florida. The Court acknowledged that she might have been tried in Missouri had either been the case.

Rodriguez-Moreno and his confederates kidnapped a drug trafficking associate and transported him over the course of time from Texas to New Jersey and then to Maryland. Rodriguez-Moreno acquired the firearm with which he threatened the kidnap victim in Maryland but was tried in New Jersey for using a firearm "during and in relation to a crime of violence [kidnaping]" in violation of 18 U.S.C. 924(c)(1). Section 924(c)(1) in the eyes of the Court has "two distinct conduct elements . . . using and carrying of a gun and the commission of a kidnaping." A crime with distinct conduct elements may be tried wherever any of those elements occurred; kidnaping is a continuous offense that in this case began in Texas and continued through New Jersey to Maryland; venue over the kidnaping, a conduct element of the section 924(c)(1), was proper in Texas, New Jersey or Maryland; consequently venue over the violation of section 924(c)(1) was proper in either Texas, New Jersey or Maryland.

The Court was quick to distinguish Cabrales from Rodriguez-Moreno : "The existence of criminally generated proceeds [in Cabrales ] was a circumstance element of the offense but the proscribed conduct – defendant's money laundering activity – occurred after the fact of the offense begun and completed by others." In Rodriguez-Moreno , "given the 'during and in relation to' language, the underlying crime of violence is a critical part of the §924(c)(1) offense." Subsequent lower federal appellate courts have read Cabrales and Rodriguez-Moreno to require that a crime be tried where at least one of its elements occurs.

It is not clear how the proposed venue amendment would have fared in light of Cabrales and Rodriguez-Moreno . It stated that "(a) The trial for any offense punishable by death shall be held in the district where the offense was committed or in any district in which the offense began, continued, or was completed. (b) If the offense, or related conduct, under subsection (a) involves activities which affect interstate or foreign commerce, or the importation of an object or person into the United States, such offense may be prosecuted in any district in which those activities occurred." The amendment would appeared to have permitted trial of an offense in a district in which related conduct affecting interstate or foreign commerce occurred even if the offense itself and each of its elements were committed entirely in another district.

The Cabrales ' money generating drug trafficking in Missouri would seem to qualify as "conduct related" to the laundering in Florida for purposes of the proposal, and yet in Cabrales that was not enough. Nor would the proposal always appear to meet Rodriguez-Moreno 's "conduct element" standard. There was nothing in the proposal that would have required that the "related conduct affecting interstate commerce" be an element of the offense to be tried. In fact, the alternative wording – "if the offense, or related conduct . . . involves activities which affect interstate commerce" – seemed to contemplate situations in which affecting commerce was not an element, conduct or otherwise, of the offense. Such applications might have appeared to a reviewing court to do more than the Constitution permits.

Specific offenses

In the case of proposed venue provisions for new or existing federal capital offenses, one common proposal would have built upon the scheme approved in Rodriguez-Moreno . The statute before the Court there, 18 U.S.C. 924(c)(1), outlaws the use of a firearm "during and in relation" to a crime of violence or serious drug offense. Several bills – e.g., H.R. 880 (Representative Forbes), H.R. 3150 (Representative Keller), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) – would have created a new federal crime, one that would have prohibited the commission of a crime of violence "during and in relation" to a drug trafficking offense, proposed 21 U.S.C. 865. They would have permitted prosecution for such an offense "in (1) the judicial district in which the murder or other crime of violence occurred; or (2) any judicial district in which the drug trafficking crime may be prosecuted," proposed 21 U.S.C. 865(b).

This analogy to Rodriguez-Moreno seems likely to have worked. The new crime, like section 924(c) in Rodriguez-Moreno , would have two elements, a crime of violence and a simultaneous, related drug trafficking offense. Rodriguez-Moreno involved a continuing offense. Many drug trafficking offenses are likely to be considered continuing offenses for venue purposes, but some may not be. It should not matter. Rodriguez-Moreno insists only that the crime may be tried where one of its conduct elements (crime of violence or drug trafficking crime) occur.

The several of the same bills – e.g., H.R. 880 (Representative Forbes), H.R. 3150 (Representative Keller), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) – would have added, to the existing federal capital offense of committing a crime of violence in aid of a racketeering (RICO) offense, an explicit venue provision. The addition would have stated that prosecution for a violation of section 1959 might be brought where the crime of violence occurs or where the racketeering activity of the enterprise occurs. Even without the explicit addition, the Second Circuit has held that since a RICO violation is an element of a section 1959 offense, venue for trial of a violation of section 1959 is proper wherever the underlying RICO might be tried, i.e., wherever an element of a RICO violation occurs.

Appointment of Counsel

Capital defendants are entitled 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 Justice Department expressed concern that under existing law the Fourth Circuit has held that the right to appoint counsel does not expire with the government's decision not to seek the death penalty. The Department also noted the inefficiencies experienced in other circuits in cases where it is clear the death penalty will not be sought but where a second attorney must be retained until the formal decision is announced.

H.R. 851 (Representative Gohmert) would have amended section 3005 so that prosecutor's notice of an intent to seek the death penalty, rather than indictment for a capital offense, would trigger the right to the appointment of second counsel. Critics have suggested that both the interests of the defendant and the interests of the government are best served by early appointment of counsel, expert in defense of capital cases.

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 section 3593(a) does not create a right to avoid the death penalty 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.

H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) would have amended section 3593(a) to authorize a continuance in the face of a delayed notification of an intent to seek the death penalty. They also would have made it clear that a defendant may not foreclose the government's option by pleading guilty before prosecutors have had time to seek the Attorney General's approval to seek the death penalty.

Pre-trial Notice of Mitigating Factors

H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) would have also balanced the prosecution's obligation to disclose any aggravating factors upon which it intends to rely with a similar defense obligation to notify the prosecution of mitigating factors upon which it intends to rely when the prosecution seeks the death penalty. Elsewhere, once the government has announced its intention to seek the death penalty, the bills would have afforded defendants the advantage of a continuance when necessary to address the additional issues raised. Here, the bills would have afforded the prosecution a similar benefit. Critics may question the symmetry.

Mental Retardation

Neither the insanity defense nor the prohibitions against trial of the mentally incompetent necessarily preclude prosecution and conviction of the mentally retarded. Nevertheless, section 3592(a) seems to permit evidence of mental retardation as a mitigating factor under section 3592(a)(1) (impaired capacity), 3592(a)(6)(disturbance), or 3592(a)(8)(mitigation generally). Moreover, neither the Constitution nor federal statutory provisions allow the execution of a federal capital defendant suffering from mental retardation.

The limited available case law suggests – with some exception – that the determination of the issue may be assigned to the court (rather than the jury) to be established by the defendant under preponderance of the evidence standard prior to trial. As for the definition of mental retardation, the Court in Atkins cites two clinical definitions of mental retardation, which it encapsulates with the observation that, "As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18," 536 U.S. at 318.

H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) would have made several procedural adjustments to accommodate claims of mental retardation in federal capital cases. First, as noted earlier they would have established a reciprocal pre-trial notification requirement. After the prosecution notified the defendant of its intention to seek the death penalty and of the aggravating factors upon which it intends to rely, the defendant would have been required to notify the government of the mitigating factors, including mental retardation, upon which he intended to rely. Second, they would have called for comparable notice when the defendant intended to claim mental retardation as a bar to execution. Third, they would have given the prosecution the right to an independent mental health examination of any defendant claiming retardation and to a continuance to prepare for trial and sentencing if necessary. Fourth, they would have conditioned the defendant's presentation of evidence and argument relating to mental retardation, at least for mitigation purposes, to instances where the defendant had provided the required prior notification. Fifth, they would have stated that the defendant bears the burden of establishing mental retardation by a preponderance of the evidence. Sixth, they would have instructed the trier of fact, be it judge or jury, to consider the issue of mental retardation only if an aggravating factor had been found and if so to consider the issue of mental retardation first among the mitigating factors. Seventh, they would have provided that a capital defendant found to be mental retarded is be sentenced to imprisonment for a term of years or to life imprisonment without the possibility of release. Eighth, they would have supplied a statutory definition of mental retardation with three components: that the defendant have an IQ of 70 or less, that he have had continuously since under 18 years of age, and that it has continuously impaired mental functions including the ability to learn, reason, and control impulses. The Justice Department endorsed similar legislative proposals in the 109 th Congress as a means of introducing consistency into federal practice in the area.

There may be objections, however. The definition of mental retardation might be thought too narrow to embrace all those constitutionally protected. Resolution of mental retardation issues, some would contend, should occur prior to trial as a matter of fairness and judicial economy if nothing else. The proposal may also be criticized for its failure to mirror the procedure governing the prosecution's right to an independent mental health examination in the case of insanity defense claims.

Aggravating and Mitigating Factors

Furman v. Georgia , 408 U.S. 238 (1972), condemned state capital punishment procedures, and by implication federal procedures, for failure to reserve the death penalty to the most egregious capital cases. The procedures have been adjusted to provide juries with aggravating and mitigating factors to guide the exercise of their discretion and ensure that the death penalty is only imposed in the most serious cases.

Unequal codefendant treatment

Several bills suggested adjustments in the designated aggravating and mitigating circumstances described in section 3592. For instance, some proposals would have amended the mitigating circumstance that now applies when "another defendant or defendants, equally culpable in the crime, will not be punished by death," H.R. 851 (Representative Gohmert), H.R. 1914 (Representative Carter). The amendment would have limited the factor to instances where the prosecution had elected not to seek the death penalty for a codefendant. In doing so it would have eliminated from coverage of instances where the defendant's codefendant is under 18 years of age, or mentally retarded, or extradited with an agreement not to execute, or where an earlier jury had declined to sentence a codefendant to death for the same offense.

The amendment might be thought to have largely symbolic impact. Section 3592(a)(8) allows a defendant to offer evidence of "any circumstance of the offense that mitigate[s] against imposition of the death penalty." Thus, it seems that any circumstances removed from a specific statutory mitigating factor might be claimed under the catch-all provisions of section 3592(a)(8). Some commentators have suggested, however, the courts might construe removal as a limitation on the catch-all provision as well.

Substantial planning

Another proposal would have added an aggravating factor to the espionage and treason category to cover offenses involving substantial planning, H.R. 1914 (Representative Carter). Espionage and treason, by their nature, would involve substantial planning in most instances. The proposal would have permitted imposition of the death penalty even in the absence of any of the other aggravating factors: prior espionage or treason conviction, grave risk to national security, grave risk of death. Treason has been a capital crime almost since the founding of the Republic, but it is not clear that the death penalty may be imposed for any crime that does not involve the taking of a human life. The Constitution may limit the circumstances under which the death penalty may be imposed upon a first time offender, convicted of espionage in a case where there is neither a grave risk to national security nor a grave risk of death.

Murder plus felonies

Most federal capital punishment statutes do not proscribe murder as such. They outlaw murder under particular circumstances, circumstances that themselves might be considered aggravating, such as the murder of a Member of Congress or a murder committed in conjunction with the rape of the victim. Section 3592(c)(1) recognizes as an aggravating factor that murder was during the course of one of a list of designated federal crimes.

Several bills would have placed other offenses on the list. H.R. 851 (Representative Gohmert) would have added receipt of military training from a foreign terrorist organization (18 U.S.C. 2332D) to section 3592(c)(1). H.R. 851 and other bills would have inserted additional offenses including

- 18 U.S.C. 241 (conspiracy against civil rights),

- 18 U.S.C. 245 (federal protected rights),

- 18 U.S.C. 247 (interference with religious exercise),

- 18 U.S.C. 37 (violence at international airports),

- 18 U.S.C. 1512 (witness tampering), and

- 18 U.S.C. 1513 (retaliating against a witness), H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), S. 1860 (S. Cronyn).

The rationale for expansion appears to be that (1) capital punishment should be reserved for the "worst of the worst;" (2) murders committed in the course of the most serious federal crimes fit that description; and (3) one or more such most serious federal crimes are not now listed in section 3592(c)(1). The rationale of opponents seems to be two-fold. First, as with mitigating circumstances, specific designation is less significant when the catch-all provision would allow presentation to the jury in any event. In the case of aggravating circumstances, however, expressly adding new crimes to the "murder plus" factor status is significant because the existence of a specifically designated aggravating factor is a sine qua non for imposition of the penalty; the mere presence of a catch-all aggravating factor is insufficient. Second, the list of death-qualifying, specifically designated aggravating factors is now so close to all-encompassing that some special justification may be in order before the list is expanded.

Obstruction of justice

The creation of a new obstruction of justice aggravating factor was a common proposal, H.R. 851 (Representative Gohmert); H.R. 1914 (Representative Carter), H.R. 3156 (Representative Lamar Smith), S. 1860 (Senator Cornyn). The proposal rests on the premise that killing witnesses and other participants in the judicial process "strikes at the heart of the system of justice itself." Critics suggest that its breadth threatens to push the federal system to a point where it has made all murders capital, where the exceptions to the "narrowing" use of aggravating factors have eliminated any narrowing impact.

Previous firearm conviction

Section 3592(c)(2) now recognizes as a statutory aggravating factor the fact that:

For any offense, other than an offense for which a sentence of death is sought on the basis of section 924(c), the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person. [Emphasis added.]

Section 924(c) provides additional penalties when a defendant uses or possesses a firearm during and in relation to the commission of a federal crime of violence or drug trafficking. Violation is a capital offense when in the course of the crime the firearm is used to commit a murder. The italicized portion of section 3593(c)(2) is open to interpretation, and several proposals would have dropped the language. H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), S. 1860 (Senator Cornyn). One of the bills, H.R. 851 (Representative Gohmert), would have amended section 3592(c)(2) further to make it clear that the new provision did not cover the conviction that had resulted in the capital sentencing hearing at issue, but only prior adjudications resulting in firearms conviction.

One critic has argued that in view of the breadth of section 924(c) the amendment would make an aggravating factor out of the possession of a firearm during any federal crime of violence or drug trafficking that ended in murder. Gregg v. Georgia ")(Bruck statement).

Pecuniary gain

Section 3592(c)(8) is what might be taken for a murder-for-hire aggravating factor: "The defendant committed the offense as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value." A casual reading might suggest that the factor covers murder for hire when the murder is paid either before or after the murder. Instead, the courts have concluded that the phrase "as consideration for" covers the for-hire murders, and the phrase "in expectation of the receipt" covers murders from which there is a more general anticipated gain. Yet the factor only applies when the murder was motivated by monetary gain. It is not enough that the gain was incidental to or a consequence of the murder.

The Justice Department has suggested that as now worded the factor is susceptible to uneven application since it does not include instances where the murder is committed to preserve a defendant's ill-gotten treasure. There were proposed amendments that would have addressed the issue by altering the section to read: The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, or in order to retain illegal possession of anything of pecuniary value, H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), S. 1860 (Senator Cornyn).

The amendment would have like brought most murders committed incidental to a robbery within the factor's purview. The objections voiced over other aggravating factor amendments may be heard again: "Run of the mill" murders are being made capital. The death penalty is no longer reserved for the worst of the worst murderers. This is the situation the Court found unacceptable in Furman . Or so the argument may run.

Murder of a law enforcement officer

H.R. 3153 (Representative Gerlach) would have made an aggravating factor of the fact that the murder victim was a law enforcement officer. Murder of a federal law enforcement officer during or on account of the performance of his or her duties is already an aggravating factor. The amendment would have expanded the factor to include state law enforcement officers, federal law enforcement officer murdered other than during or on account of the performance of their official duties, and attempts to kill either state or federal law enforcement officers.

Sympathy, prejudice and other arbitrary factors

In California v. Brown , the Supreme Court upheld a state court instruction which informed a capital jury that "they must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." H.R. 851 (Representative Gohmert) would have introduced a similar directive into the federal process in capital cases. H.R. 3156 (Representative Lamar Smith) and S. 1860 (Senator Cornyn) would have used the same language but dropped references to "sentiment" and "sympathy," perhaps in response to criticism of an earlier version of the proposal.

Elimination of the term-of-years option

Many federal capital punishment statutes offer but two sentencing alternatives, death or life imprisonment. Several others, however, offer a third option: imprisonment for any term of years. In recognition of this fact, existing law states that if no aggravating factors are found to exist "the court shall impose a sentence other than death authorized by law." And if the trier of fact finds that the death penalty should not be imposed in spite of the presence of one or more aggravating factors, existing law calls for "life imprisonment without possibility of release or some other lesser sentence ." Several proposals, H.R. 3156 (Representative Lamar Smith), S. 1860 (Senator Cornyn), and H.R. 851 (Representative Gohmert) among them, would have eliminated the possibility of a sentence for a term of years, if one of the aggravating factors were found.

Capital Juries

A number of proposals in the 110 th Congress address problems associated with selecting and maintaining a panel of qualified jurors in capital cases. Existing law states the jury at the sentencing phase of a capital case "shall consist of 12 members, unless, at any time before the conclusion of the hearing, the parties stipulate with the approval of the court, that it shall consist of a lesser number." H.R. 851 (Representative Gohmert) and H.R. 1914 (Representative Carter) would have amended the provision to permit the court to approve a lesser number for good cause, without requiring the approval of the defendant or the prosecutor. Imposition of the death penalty upon the recommendation of a jury of less than twelve members over the objection of the defendant is likely to draw criticism. Perhaps to ensure that recourse to juries of less than twelve would only be necessary in extreme cases, the two bills would have increased the number of permissible alternate jurors from six to nine and afforded each side four addition peremptory challenges in the cases where more than six alternates are impaneled. H.R. 851 (Gohmert) also would have amended section 3592 to discourage the dismissal of alternate jurors in capital cases until sentencing has been completed. Other proposals, notably H.R. 3156 (Representative Lamar Smith) and S. 1860 (Senator Cornyn), would have left the number of jurors and alternates as is and merely directed the court to retain alternates until sentencing has been completed.

Existing law permits a capital jury to unanimously recommend a sentence of death or life imprisonment without the possibility of release; if they do not, the court is to sentence the defendant to any lesser sentence authorized by law, i.e., imprisonment for life or for a term of years. H.R. 1914 (Representative Carter) would have provided that if the jury cannot agree on a capital recommendation, a new sentencing hearing must be impaneled and new sentencing hearing conducted.

Site of Execution

Existing law provides that the states are to execute federal death sentences. H.R. 851 (Representative Gohmert), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) would have authorized execution in federal facilities as well, pursuant to regulations promulgated by the Attorney General. The change reflects the availability of federal facilities. They would also have added a confidentiality clause under which the identity of executors and witnesses at the execution could not have been publicly disclosed without their consent.

New Federal Capital Offenses

S. 607 (Senator Vitter) would have outlawed interference with federal disaster relief efforts; when death resulted from a violation of the proscription, the defendant might have been sentenced to death or life imprisonment.

H.R. 3806 (Representative Forbes) would have made sabotage committed against a nuclear facility a capital offense if a death resulted from the commission of the offense.

It is a federal capital offense under existing law to murder a member of the United States armed forces during or on account of the performance of their duties, 18 U.S.C. 1114. H.R. 3884 (Representative Murphy) would have made it a federal offense to murder a member of the United States armed force regardless of whether the offense were committed during or on account of the performance of the victim's duties, proposed 18 U.S.C. 1123.

The bills drafted to counter gang violence – e.g., H.R. 3150 (Representative Keller), H.R. 880 (Representative Forbes) – frequently included two new federal death penalty offenses. One would have proscribed the use of interstate facilities with the intent to commit multiple murders and would have been a capital offense where death resulted. The second, modeled after the provision that condemned the use of a firearm during or in relation to a crime of violence or a drug offense, would have outlawed crimes of violence committed during or in relation to a drug trafficking offense and would have made the offense punishable by death if a death results. The murder committed during and in relation to a drug trafficking offense appeared as a capital offense in other bills as well ( H.R. 1118 (Representative Keller); H.R. 3156 (Representative Lamar Smith); S. 1860 (Senator Cornyn)); as does the new capital multiple murder proposal ( H.R. 3156 (Representative Lamar Smith); S. 1860 (Senator Cornyn)). In addition, H.R. 3150 would have condemned murder along with other violent crimes in furtherance or in aid of a criminal street gang, an offense it would have made punishable by death.

Existing law proscribes overseas murder and assault committed against Americans by terrorists, 18 U.S.C. 2332. H.R. 2376 (Representative Franks), H.R. 3147 (Representative Wilson), H.R. 3156 (Representative Lamar Smith), S. 1320 (Senator Kyl), and S. 1860 (Senator Cornyn) would have proscribed overseas kidnaping of Americans by terrorists and propose the death penalty as a sentencing option when a death results.

Several of the immigration bills – e.g., H.R. 1645 (Representative Gutierrez), S. 330 (Senator Isakson), S. 1348 (Senator Reid) – would have proscribed evasion of border inspection and made the offenses punishable by death, imprisonment for any term of years, or for life if death results from a violation, proposed 18 U.S.C. 556.

Rather than amend existing non-capital federal terrorist offenses to make them capital offenses when they result in a death, H.R. 855 (Representative Lungren), H.R. 3156 (Representative Lamar Smith), and S. 1860 (Senator Cornyn) would have created a new separate federal offense which outlaws the commission of, or attempt or conspiracy to commit various federal terrorist offenses when a death results, proposed 18 U.S.C. 2339E. Violations would have been punishable by death or imprisonment for any term of years or for life. Its impact might have been less dramatic than might appear at first glance since many of its predicate offenses are already capital crimes or would have been elevated to capital offenses elsewhere in the bills. Nevertheless, as a consequence of section 2339E the following would have become capital offenses when a death occurs during the course of their commission:

- 18 U.S.C. 81 (arson within special maritime and territorial jurisdiction),

- 18 U.S.C. 175 or 175b ( biological weapons),

- 18 U.S.C. 351 (congressional, cabinet, and Supreme Court murder or kidnaping),

- 18 U.S.C. 831 (nuclear materials),

- 18 U.S.C. 842(m) or (n) (plastic explosives),

- 18 U.S.C. 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad),

- 18 U.S.C. 1030(a)(1), 1030(a)(5)(A)(i)(protection of computers),

- 18 U.S.C. 1361 (destruction of government property or contracts),

- 18 U.S.C. 1362 (destruction of communication lines, stations, or systems),

- 18 U.S.C. 1366(a) (destruction of an energy facility),

- 18 U.S.C. 2155 (destruction of national defense materials, premises, or utilities),

- 18 U.S.C. 2156 (national defense material, premises, or utilities),

- 18 U.S.C. 2332d (financial transactions with terrorist supporting countries),

- 18 U.S.C. 2339 (harboring terrorists),

- 18 U.S.C. 2339A (providing material support to terrorists),

- 18 U.S.C. 2339B (providing material support to terrorist organizations),

- 18 U.S.C. 2339C (financing of terrorism),

- 18 U.S.C. 2339D (military-type training from a foreign terrorist organization),

- 18 U.S.C. 2340A (torture),

- 21 U.S.C. 960a (narco-terrorism),

- 42 U.S.C. 2122 (prohibitions governing atomic weapons),

- 42 U.S.C. 2284 (sabotage of nuclear facilities or fuel),

- 49 U.S.C. 46504 (second sentence)(assault on a flight crew with a dangerous weapon),

- 49 U.S.C. 46505(b)(3) or (c) ( explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft),

- 49 U.S.C. 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility).

On the other hand, some of predicate offenses do not outlaw attempts to violate their proscriptions. In these cases, section 2339E would have established not only a new federal capital offense but a new federal crime when death results from the attempt:

- 18 U.S.C. 1203 (hostage taking),

- 18 U.S.C. 2339 (harboring terrorists),

- 18 U.S.C. 2339D (receipt of foreign terrorist military training).

Capital Punishment for Existing Non-Capital Offenses

H.R. 855 (Representative Lungren), H.R. 3156 (Representative Lamar Smith), H.R. 3147 (Representative Wilson), and S. 1860 (Senator Cornyn) would have established the death penalty as a sentencing option when death results as a consequence of a violation of: 18 U.S.C. 832 (participation in foreign programs involving weapons of mass destruction); 18 U.S.C. 2332g (anti-aircraft missile offenses); 42 U.S.C. 2272 (atomic weapons offenses); 18 U.S.C. 2332h (radiological dispersal device offenses); and 18 U.S.C. 175c (variola virus (small pox) offenses).

The gang bills would have rewritten the federal criminal gang statute (18 U.S.C. 521) to permit imposition of capital punishment for a death-resulting violation of the newly crafted provisions whose predicate offenses include various crimes of violence, money laundering, drug offenses, credit card fraud, Travel Act violations, and interstate transportation of stolen property, H.R. 880 (Representative Forbes), H.R. 3150 (Representative Keller). H.R. 3156 (Representative Lamar Smith) and S. 1860 (Senator Cornyn) had the same proposal.

The Travel Act, 18 U.S.C. 1952, among other things, outlaws interstate travel to commit a crime of violence in furtherance of various drug, gambling, or extortion offenses. H.R. 3156 (Representative Lamar Smith) and S. 1850 (Senator Cornyn) would have permitted imposition of the death penalty when a violation results in death.

Abolition of Capital Punishment

S. 447 (Senator Feingold)/ H.R. 6875 (Representative Kucinich) would have eliminated the death penalty as a sentencing option for federal and military capital offenses. It would have prohibited imposition of the death penalty and provided that prisoners under sentence of death at the time of enactment shall be sentenced to life imprisonment without the possibility of release. It would have repealed the procedures for implementation of the death penalty, 18 U.S.C. ch. 228. It would have eliminated as well 18 U.S.C. 3235 which dictates that the trial of a capital offense be conducted in the county in which it occurred. It would have amended the statute of limitations of 18 U.S.C. 3281 to list specific previous capital offenses which may be tried at any time. It would have mades comparable adjustments in the Code of Military Justice.

Statute of Limitations

The general statute of limitations for federal crimes is 5 years, 18 U.S.C. 3282. Federal crimes punishable by death may be prosecuted at any time, 18 U.S.C. 3281. Federal crimes of terrorism as defined in 18 U.S.C. 2332b(g)(5)(B) that result in death or involve a risk of death may also be prosecuted at any time, 18 U.S.C. 3286(b). Moreover, federal sexual offenses and crimes against children proscribed by 18 U.S.C. 1201 or 18 U.S.C. chs. 109A (sexual abuse), 110 (sexual exploitation of children), or 117(travel of illicit sexual purposes) may likewise be brought any time, 18 U.S.C. 3299.

S. 447 / H.R. 6875 would have replaced the language of section 3281 for crimes carrying the death penalty with a list of federal crimes (now punishable by death) which may be prosecuted at any time notwithstanding the bill's elimination of the death penalty. The list was not exhaustive. Some of the omissions were covered by exceptions for crimes against children, sex offenses, or the federal crimes of terrorism. Some were not. The crimes which now can be prosecuted at any time but which S. 447 / H.R. 6875 would appear to have made subject to the general 5-year statute of limitations were violations of:

7 U.S.C. 2146 (killing federal animal transportation inspectors) 15 U.S.C. 1825(a)(2)(C) (killing those enforcing the Horse Protection Act) 18 U.S.C. 115(a)(1)(A) (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)(1)(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 (death resulting from chemical weapons) 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.1201 (kidnaping where death of an adult results) 18 U.S.C.1503 (murder to obstruct federal judicial proceedings) 18 U.S.C. 1513 (retaliatory murder of a federal witness or informant) 18 U.S.C. 3261 (murder committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) 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.1041(c) (murder of an egg inspector during or because of official duties) 42 U.S.C.2283 (murder of federal nuclear inspectors during or because of official duties).

Appendix.

Federal Rules of Criminal Procedure: Rule 12.2

(a) Notice of an Insanity Defense. A defendant who intends to assert a defense of insanity at the time of the alleged offense must so notify an attorney for the government in writing within the time provided for filing a pretrial motion, or at any later time the court sets, and file a copy of the notice with the clerk. A defendant who fails to do so cannot rely on an insanity defense. The court may, for good cause, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders.

(b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must—within the time provided for filing a pretrial motion or at any later time the court sets—notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk. The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders.

(c) Mental Examination.

(1) Authority to Order an Examination; Procedures.

(A) The court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241.

(B) If the defendant provides notice under Rule 12.2(a), the court must, upon the government's motion, order the defendant to be examined under 18 U.S.C. § 4242. If the defendant provides notice under Rule 12.2(b) the court may, upon the government's motion, order the defendant to be examined under procedures ordered by the court.

(2) Disclosing Results and Reports of Capital Sentencing Examination. The results and reports of any examination conducted solely under Rule 12.2(c)(1) after notice under Rule 12.2(b)(2) must be sealed and must not be disclosed to any attorney for the government or the defendant unless the defendant is found guilty of one or more capital crimes and the defendant confirms an intent to offer during sentencing proceedings expert evidence on mental condition.

(3) Disclosing Results and Reports of the Defendant's Expert Examination. After disclosure under Rule 12.2(c)(2) of the results and reports of the government's examination, the defendant must disclose to the government the results and reports of any examination on mental condition conducted by the defendant's expert about which the defendant intends to introduce expert evidence.

(4) Inadmissibility of a Defendant's Statements. No statement made by a defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant's consent), no testimony by the expert based on the statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on which the defendant:

(A) has introduced evidence of incompetency or evidence requiring notice under Rule 12.2(a) or (b)(1), or

(B) has introduced expert evidence in a capital sentencing proceeding requiring notice under Rule 12.2(b)(2).

(d) Failure to Comply.

(1) Failure to Give Notice or to Submit to Examination . The court may exclude any expert evidence from the defendant on the issue of the defendant's mental disease, mental defect, or any other mental condition bearing on the defendant's guilt or the issue of punishment in a capital case if the defendant fails to:

(A) give notice under Rule 12.2(b); or

(B) submit to an examination when ordered under Rule 12.2(c).

(2) Failure to Disclose. The court may exclude any expert evidence for which the defendant has failed to comply with the disclosure requirement of Rule 12.2(c)(3).

(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.2(a) or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.

Federal Crimes Punishable by Death

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 motor vehicles or their facilities used in United States foreign commerce)

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) (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)(1)(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 (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 (murder within the special maritime jurisdiction of the United States)

18 U.S.C.1114 (murder of a federal employee, including a member of the United States military, or anyone assisting a federal employee or member of the United States military 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.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 railroad and 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 (death resulting from bombing of public places, government facilities, public transportation systems or infrastructure facilities)(effective when the terrorist bombing treaty enters into force for the U.S.)

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)

18 U.S.C. 3261 (murder committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas)

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. 3592b) (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(c) (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)

49 U.S.C.46506 (murder within the special aircraft jurisdiction of the United States)