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. 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. 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 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. "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."