Federal Judicial Center -- 2004
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        B     Federal Statutes Authorizing the Death Penalty
        B-1  The Anti-Drug Abuse Act of 1988
        B-2  The Federal Death Penalty Act of 1994

Two recent statutes authorize capital punishment: the Anti-Drug Abuse Act of 1988 (21 USC 848) and the Federal Death Penalty Act of 1994 (18 USC 3591–3598). This section highlights various aspects of these two statutes; it is not an in-depth review.

B-1    The Anti-Drug Abuse Act of 1988

The Anti-Drug Abuse Act of 1988 enacted specific death-penalty provisions contained in 21 USC 848. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (codified in 21 USC 848). The Act authorizes the imposition of the death penalty as a sanction for any person (1) who has engaged in a continuing criminal enterprise, manufacturing, distributing, or possessing with intent to manufacture or distribute certain controlled or counterfeit substances, or importing or exporting controlled substances, who intentionally killed or caused the intentional killing of another or (2) who intentionally killed or caused the intentional killing of a law enforcement officer during the commission of or in furtherance of a drug offense or while trying to avoid apprehension, prosecution, or service of a prison sentence for a drug offense. 21 USC 848(e).

The Act sets forth the process for determining whether a death sentence is appropriate for a person convicted of one of these crimes. Specifically, at a hearing (Id. § 848(i)), the government must prove beyond a reasonable doubt (Id. § 848(j)) a statutory aggravating factor relating to the defendant’s intent during the commission of the offense (Id. § 848(n)(1)) and at least one of the other aggravating factors enumerated in 21 USC 848(n)(2)–(12). The government also is authorized to allege and prove nonstatutory aggravating factors, as long as it gives adequate pretrial notice of these factors. With respect to finding that aggravating factors exist, the jury must be unanimous. Id. § 848(k).

The Act also allows the defendant to present evidence of any mitigating factor, [Footnote 5] which must be proved by a preponderance of the evidence. Id. § 848(j). When considering mitigating factors, the jury does not need to be unanimous in finding that such factors exist. Id. § 848(k). After weighing the aggravating and mitigating factors against one another, the jury must decide whether a death sentence should be imposed. The Act makes it clear that a jury is never required to sentence a defendant to death, even if it finds that the aggravating factors outweigh the mitigating factors. Id.

B-2    The Federal Death Penalty Act of 1994

The Federal Death Penalty Act of 1994, 18 USC 3591–3598, a part of the Violent Crime Control and Law Enforcement Act of 1994, established the death penalty as a sentencing option for over sixty offenses. In addition, the Act established a procedure for conducting the sentencing phase of a capital trial and set forth the prerequisites for imposing the death penalty, including information on aggravating and mitigating factors and appointment of counsel. Specifically, to impose the death penalty, the jury must find that the defendant acted with one of four mental states set forth in section 3591(a)(2) and that at least one statutory aggravating factor in section 3592(c) exists. Furthermore, the jury is required to return special findings with respect to the aggravating factors. Id. § 3593(d). Like the Anti-Drug Abuse Act, the Federal Death Penalty Act provides that a finding of a statutory aggravating factor must be unanimous, whereas a finding of a mitigating factor may be made by a single jury member. Id. § 3593(d). Similarly, the Act directs the jury to "consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify the death sentence." Id. § 3593(e)(3). [Footnote 6]

In the event of a death sentence, the Act directs the U.S. marshal to supervise implementation of the sentence in the manner prescribed by the law of the state in which the sentence was imposed. If the death sentence is handed down in a state that does not have the death penalty, the court will "designate another state, the law of which does provide for the implementation of a sentence of death," and have the prisoner executed in accordance with the law prevailing there. Id. § 3596(a).

Both the Anti-Drug Abuse Act and the Federal Death Penalty Act contain language stating that the sentencing hearing shall be conducted before the jury that determined the defendant’s guilt. 21 USC 848(i)(1)(A) (1988); 18 USC 3593(b) (1994). The two statutes allow for certain exceptions, including a separate sentencing hearing before a jury impaneled solely for sentencing if

• the defendant was convicted on a plea of guilty (21 USC 848(i)(1)(B)(i) (1988); 18 USC 3593(b)(2)(A) (1994));

• the defendant was convicted after a bench trial (21 USC 848(i)(1)(B)(ii) (1988); 18 USC 3593(b)(2)(B) (1994));

• the jury that determined the defendant’s guilt has been discharged for good cause (21 USC 848(i)(1)(B)(iii) (1988); 18 USC 3593(b)(2)(C) (1994)); or

• resentencing is necessary (21 USC 848(i)(1)(B)(iv) (1988); 18 USC 3593(b)(2)(D) (1994)).

FOOTNOTES:

5     Title 21 USC 848(m) provides a list of ten mitigating factors that can be considered by the fact finder, but this list is not exclusive. See section IV.B.4, infra, for further discussion of mitigating factors.

6     The mitigating factors to be considered in determining whether a sentence of death is justified are the following: (1) impaired capacity, (2) duress, (3) minor participation, (4) that equally culpable defendants will not be punished by death, (5) no prior criminal record, (6) severe mental or emotional disturbance, (7) victim’s consent to the criminal conduct, and (8) other factors in the defendant’s background or character, or any other circumstance of the offense, that mitigate against imposition of the death sentence. Id. § 3592(a)(1)–(8).