NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 5: Capital Punishment Handbook: Federal Death Penalty

        5.2 Federal Capital Procedure

The 1994 Act (18 USC§ 3591–3598) created a new federal system for sentencing, imposing, and reviewing the death sentence for certain federal crimes. Specifically, the Act established statutory aggravating and mitigating circumstances to be considered in determining whether justification exists for a federal death sentence, established a special hearing for such determination, and established a system of appeal and review. The Attorney General sets forth policy and procedures in a Protocol to be followed in all federal cases in which a defendant is charged with an offense subject to the death penalty. Federal courts have found, however, that the Protocol (as well as the United States Attorney Manual in which it is included) does not create judicially enforceable substantive or procedural rights.

In 2006, 21 USC 848(q)(4)-10) was repealed, and similar provisions regarding providing counsel, and expert and investigative services for capital defendant unable to pay for such fees and services, were enacted as 18 USC 3599 (see § 6.2.8, infra).

In United States v. Allen, 536 U.S. 953 (2002), the U.S. Supreme Court vacated a death sentence imposed under the 1994 Act and remanded for reconsideration in light of the decision in Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. In United States v. Allen, 247 F.3d 741 (8th Cir. 2001), cert. granted and judgment vacated, 536 U.S. 953 (2002), the petitioner had asserted that the failure to allege in the indictment both the mental culpability factor from 18 USC 3591(a) and the aggravating factors from § 3592(c) on which the government relied at sentencing for justification of imposition of the death penalty was unconstitutional under Apprendi v. New Jersey. For further discussion of Apprendi and Ring, see § 4.6.1. On remand the 8th Circuit held in United States v. Allen, 406 F.3d 940 (8th Cir. 2005) (en banc), petition for cert. filed (Sept. 29, 2005) (No. 05-6764), that it has been the practice of the Department of Justice since the Ring decision to submit mental culpability and aggravating factors to the grand jury for inclusion in the indictment and that this practice of the DOJ preserves the constitutionality of FDPA prosecutions.

Section 26.3 of Title 28 of the Code of Federal Regulations provides that the federal government’s method of execution is lethal injection at a federal penal or correctional institution. However, 18 USC 3596 provides that the method of implementing the death penalty for a federal conviction will follow that of the state in which it is imposed, and, if there is no state death penalty, then that of another state designated by the judge. Section 3597 of Title 18 provides that “[a] United States marshal charged with supervising the implementation of a sentence of death may use appropriate State or local facilities for the purpose . . . .” The federal government’s first death row and execution chamber opened in July 1999 at a penitentiary in Terre Haute, Indiana.

United States v. Allen, 536 U.S. 953 (2002) (vacating death sentence and remanding for further consideration in light of Ring v. Arizona, 536 U.S. 584 (2002); in case below, United States v. Allen, 247 F.3d 741 (8th Cir. 2001), petitioner had asserted that failure to allege in indictment both mental culpability factor from 18 USC 3591(a) and aggravating factors from § 3592(c) on which the government relied at sentencing for justification of imposition of the death penalty was unconstitutional under Apprendi v. New Jersey). 

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton and Apprendi are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty).

Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding, in the context of noncapital sentencing, that the Due Process Clause requires that any factual determination that is required to increase a sentence that otherwise could not be imposed without the factual determination must be proven beyond a reasonable doubt to a jury).

Jones v. United States, 527 U.S. 373 (holding that Eighth Amendment does not require the court to instruct jurors in federal death penalty cases on consequences of their failure to agree on a sentence of death or life imprisonment without the possibility of parole), reh’g denied, 527 U.S. 1058 (1999).

United States v. Fernandez, et al, 231 F.3d 1240 (9th Cir. 2000) (holding district court erred by precluding the government from seeking the death penalty where the government refused to answer a discovery order requiring that it provide the defense with its confidential predecisional death penalty evaluation form and memoranda regarding the AG’s decision to seek the death penalty).

In re Sterling-Suarez, 306 F.3d 1170 (1st Cir. 2002) (holding that “promptly” as used in 18 USC 3005, providing that following indictment of defendant on a capital crime, court “shall promptly, upon the defendant’s request” assign two counsel “of whom at least 1 shall be learned in the law applicable to capital cases” means promptly after indictment, not, as government asserted, only after Attorney General has made determination to seek death penalty).

United States v. Fell, 360 F.3d 135 (2nd Cir.) (vacating district court order that had held that the federal death penalty is unconstitutional on the basis that the direction in 28 USC 3593(c) to ignore the Federal Rules of Evidence when considering information relevant to death penalty eligibility is a violation of the Due Process Clause of the Fifth Amendment and the rights of confrontation and cross-examination guaranteed by the Sixth Amendment, the Second Circuit held that the standard set forth in § 3593(c) meets constitutional requirements because it “does not impair the reliability or relevance of information at capital sentencing hearings”), cert. denied, 543 U.S. 946 (2004).

United States v. Robinson, 367 F.3d 278 (5th Cir.) (holding that FDPA is not facially unconstitutional under the Indictment Clause since the government can comply with its constitutional obligations by first going to the grand jury and its statutory obligations by later filing a notice of intention to seek the death penalty; rejecting argument that FDPA violates the substantive and procedural components of Due Process Clause), cert. denied, 125 S. Ct. 623 (2004).

United States v. Hall, 152 F.3d 381 (5th Cir. 1998) (holding that FDPA does not require jury to return special findings regarding which mitigating factors the jury found to exist or the number of jurors who found a mitigating factor to exist), cert. denied, 526 U.S. 1117 (1999).

United States v. Allen, 406 F.3d 940 (8th Cir. 2005) (en banc) (on remand from the Supreme Court for reconsideration in light of Ring v. Arizona, holding that it has been the practice of the DOJ since the Ring decision to submit mental culpability and aggravating factors to the grand jury for inclusion in the indictment and that this practice preserves the constitutionality of FDPA prosecutions; also holding that although the Fifth Amendment requires that at least one statutory aggravating factor and the requisite mental state be found by the grand jury and charged in the indictment in FDPA prosecutions, the failure to do so in this pre-Ring case was harmless beyond a reasonable doubt), petition for cert. filed (Sept. 29, 2005) (No. 05-6764) .

United States v. Green, 372 F. Supp. 2d 168 (D. Mass. 2005) (granting defendants’ motion that allegations of prior unadjudicated crimes not charged in the indictment and unrelated to the current prosecution be struck from the notice of intent to seek the death penalty; limiting ruling to prior unadjudicated crimes, and distinguishing cases holding to the contrary, noting that they were decided prior to Blakely v. Washington, 542 U.S. 296 (2004)).

United States v. Haynes, 269 F. Supp. 2d 970 (W.D. Tenn. 2003) (holding that the direction in 28 USC 3593(c) to ignore the Federal Rules of Evidence when considering information relevant to death penalty eligibility was not a violation of the Due Process Clause of the Fifth Amendment or the rights of confrontation and cross examination guaranteed by the Sixth Amendment; also holding that the Federal Death Penalty Act’s silence regarding grand jury’s role in finding mens rea and aggravating factors did not render the statute unconstitutional).

United States v. Llera Plaza, 179 F. Supp. 2d 444 (E.D. Pa. 2001) (denying defendant’s motion to preclude penalty phase hearing and/or imposition of death penalty and holding that Federal Death Penalty Act was not unconstitutional on asserted basis that it unconstitutionally restricted mitigating evidence that jury may consider because it provides that sentencer may not consider race, color, religious beliefs, national origin, or sex of defendant or of any victim; also holding that Act was not unconstitutionally incomprehensible and that it adequately narrowed class of persons eligible for death penalty).

United States v. Minerd, 176 F. Supp. 2d 424 (W.D. Pa. 2001) (holding that Federal Death Penalty Act was constitutional and that Act properly delegated Congressional authority in permitting prosecution to define nonstatutory aggravating factors; also holding that statutory aggravating factors were not unconstitutionally vague). 

United States v. Glover, 43 F. Supp. 2d 1217 (D. Kansas 1999) (holding that Federal Death Penalty Act did not violate Eighth Amendment by allowing use of nonstatutory aggravating factors without accompanying proportionality review).

United States v. Hammer, 25 F. Supp. 2d 518 (M.D. Pa. 1998) (rejecting claim that trial court should have used defendant’s jury instruction relating to the consequences of a jury’s failure to reach an unanimous verdict).

United States v. Roman, 931 F. Supp. 960 (D. R.I. 1996) (denying petitioner’s motion to reveal aggravating circumstances that justify death sentence under 18 USC 3593(a) as premature because government not yet decided to seek death penalty; holding that Department of Justice protocol does not create judicially enforceable substantive or procedural rights).

18 USC 3005 (2000) (providing for appointment of counsel in federal death penalty case).

18 USC 3235 (2000) (providing venue in capital cases).

18 USC 3281 (2000) (stating no time limitation on instituting capital proceedings).

18 USC 3432 (2000) (setting procedures regarding indictment and list of jurors and witnesses in capital cases).

18 USC 3591 (2000) (defining federal death sentence).

18 USC 3592 (2000) (listing aggravating and mitigating circumstances).

18 USC 3593 (2000) (providing for special hearing to determine whether death penalty justified).

18 USC 3595 (2000) (providing for direct appeal and review of federal death sentence).

18 USC 3596 (2000) (providing that federal death penalty carried out in manner prescribed by state in which sentence imposed).

18 USC 3597 (2000) (providing for use of state facilities for implementing federal death sentence).

18 USC 3599, as added by Pub. L. No. 109-177, § 222(a) (providing for appointment of counsel and for reasonably necessary expert and investigative services in capital cases).

28 C.F.R. §§ 26.1-26.5 (2001) (establishing procedures for carrying out federal death sentence in federal institution; providing lethal injection as execution method).

Fed. R. Crim. P. 24(b) (providing twenty peremptory challenges for offenses punishable by death).

Charles C. Boettcher, Testing that Federal Death Penalty Act of 1994, 18 USC§ 3591-98 (1994): United States v. Jones, 132 F.3d 232 (5th Cir. 1998), 29 Tex. Tech L. Rev. 1043 (1998) (examining federal death penalty law prior to United States v. Jones; analyzing the Fifth Circuit’s decision in United States v. Jones).

Sara L. Golden, Comment, Constitutionality of the Federal Death Penalty Act: Is the Lack of Mandatory Appeal Really Meaningful Appeal, 74 Temp. 429 (2001) (arguing that Federal Death Penalty Act’s failure to provide for mandatory appellate review violates Eighth Amendment’s ban on cruel and unusual punishment and proposing that Act be amended to require at least one level of review).

Sandra D. Jordan, Symposium on the Seventh Circuit as a Criminal Court: Death for Drug Related Killings: Revival of the Federal Death Penalty, 67 Chi.-Kent L. Rev. 79 (1991) (discussing and analyzing future impact of providing for death penalty in cases of drug related killings).

George Kannar, Federalizing Death, 44 Buff. L. Rev. 325 (1996) (summarizing legislation and procedural issues surrounding federal death penalty).

Brian Serr, Of Crime and Punishment, Kingpins and Footsoldiers, Life and Death: The Drug War and the Federal Death Penalty Provision–Problems of Interpretation and Constitutionality, 25 Ariz. St. L.J. 895 (1993) (arguing § 848(e) is not a substantive capital offense, but just an enhanced penalty provision for drug felonies aggravated by murder).

Richard P. Shafer, Annotation, Validity, Construction, and Operation of Federal Death Penalty Act, 18 USC 3591 et seq., 195 A.L.R. Fed. 1 (2005).