Federal Judicial Center -- 2004
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        B     Government Notice of Intent to Seek the Death Penalty
        B-1  Department of Justice procedures
        B-2  Contents of notice
        B-3  Timing of notice

Pursuant to 21 USC 848(h)(1) and 18 USC 3593(a), the government must provide notice that it intends to seek the death penalty. Specifically, a reasonable time before trial, the government must file with the court and serve on the defendant a notice of its intent to seek the death penalty, which must include both the statutory and nonstatutory aggravating factors it intends to prove. 21 USC 848(h)(1); 18 USC 3593(a). Although the statutes are silent on the specificity of notice required, due process requires that a defendant receive sufficient notice of aggravating factors to enable the defendant to prepare his or her case. [Footnote 8]

B-1    Department of Justice procedures

Under U.S. Department of Justice (DOJ) policy, all government requests to seek the death penalty must be approved in writing by the Attorney General of the United States. In January 1995, DOJ adopted a formal protocol for U.S. attorneys to follow in all federal cases in which a defendant is charged with an offense subject to the death penalty. U.S. Dep’t of Justice, Protocol for Federal Prosecutions in Which the Death Penalty May Be Sought, United States Attorneys’ Manual, tit. 9–10.000 [hereinafter Protocol for Federal Prosecutions]. DOJ’s adoption of this protocol was, among other things, an attempt to promote reasonable uniformity in the administration of the federal death penalty. All death-penalty-eligible cases must undergo the protocol’s review process both locally and at the main office of DOJ, regardless of whether the local U.S. attorney wishes to seek the death penalty.

The protocol provides that, before the U.S. Attorney’s Office decides whether to request approval to seek the death penalty, the U.S. attorney should give counsel for the defendant a reasonable opportunity to submit any facts, including any mitigating factors, for the government’s consideration. The defendant’s counsel is provided an opportunity to submit to the U.S. Attorney’s Office, orally or in writing, the reasons why the death penalty should not be sought.

After receiving any information provided by the defense, the U.S. Attorney’s Office completes a Death Penalty Evaluation form, which provides spaces to indicate the theory of prosecution, the aggravating and mitigating factors associated with the crime and the defendant, and the recommendation of the U.S. attorney regarding whether the government should file a notice of intent to seek the death penalty. The U.S. attorney also prepares a prosecution memorandum, which includes an introduction and a discussion of

• the theory of liability;

• the facts and evidence, including those related to aggravating and mitigating factors;

• the defendant’s background and criminal history;

• the basis for federal prosecution (as opposed to state prosecution); and

• any other relevant information.

These documents, along with a copy of the indictment and any written materials submitted by defense counsel in opposition to the death penalty, are then forwarded to the main office of DOJ.

At DOJ, the materials are first reviewed by attorneys in an office within the Criminal Division called the Capital Case Unit. That unit submits an analysis of the case and a proposed recommendation to the Capital Case Review Committee, a special committee of DOJ officials appointed by the Attorney General. Before the review committee makes a recommendation to the Attorney General regarding whether to pursue the death penalty in a particular case, it reviews materials from the U.S. attorney, the Capital Case Unit, and defense counsel, and it holds a meeting with the local U.S. attorney and defense counsel to hear their views and arguments regarding whether the death penalty should be sought. After the presentations, the review committee meets to determine what to recommend to the Attorney General. Finally, the committee and members of the Capital Case Unit meet with the Attorney General to discuss the case and the committee’s recommendation. The Attorney General then signs a letter directing the U.S. attorney whether to seek the death penalty.

Under the protocol, "[i]n deciding whether it is appropriate to seek the death penalty, the United States Attorney, the Attorney General’s Committee and the Attorney General shall consider any legitimate law enforcement or prosecutorial reason which weighs for or against seeking the death penalty." Protocol for Federal Prosecutions § G. In addition, the government "must determine whether the statutory aggravating factors applicable to the offense and any nonstatutory aggravating factors sufficiently outweigh the mitigating factors applicable to the offense to justify a sentence of death, or, in the absence of any mitigating factor, justify a sentence of death." Id.

At least two district courts have determined that the DOJ protocol does not create substantive or procedural rights for a defendant. In United States v. McVeigh, 944 F. Supp. 1478 (1996), defendant McVeigh moved to disqualify the Attorney General and other DOJ officials because of the Attorney General’s announcement, before any suspect had been identified, that she would seek the death penalty in any prosecution for the bombing of the federal building in Oklahoma City. Subsequent to the Attorney General’s statement, defense counsel refused to participate in the protocol process, claiming that a decision had already been made to seek the death penalty without input from him. The court denied the motion to disqualify, stating that "the decision to seek the death penalty under the Act is a matter of prosecutorial discretion. The Protocol did not create any individual right or entitlement subject to the due process protections applicable to an adjudicative or quasi-adjudicative governmental action." Id. at 1483.

B-2    Contents of notice

Examples of notices of intent from federal death-penalty cases can be found in the appendices. A notice of intent to seek the death penalty generally includes citation to the section or sections of the statute that carry a sentence of death and the aggravating factors the government intends to prove.

In some of the cases we reviewed, defense counsel moved, pursuant to Rule 7(b) of the Federal Rules of Criminal Procedure, for a bill of particulars after receiving the government’s notice of intent to seek the death penalty. Such motions frequently asked for further information about the nature of the aggravating factors claimed by the government— such as previous unadjudicated conduct—and the evidence the government would use to support the claimed aggravating factors. In general, judges sought to ensure that defendants had adequate notice of what the government would try to prove and of the general nature of the evidence that would be used, but did not require that the government provide specific evidentiary detail.

B-3    Timing of notice

The Supreme Court has made it clear that to render effective assistance, counsel must have sufficient time to prepare competently for a case. [Footnote 9] In several of the cases we reviewed, the defendants filed motions asking the court to order the government to make known sufficiently prior to trial its intention concerning whether to pursue the death penalty. In most of these cases, the defendants contended that this information was necessary to defend adequately against the aggravating factors that would be submitted by the government during the penalty phase of the litigation. We found that the courts generally granted these motions by ordering the government to notify the court and the defendant of its intention by a specified date.

Currently, neither the Anti-Drug Abuse Act of 1988 nor the Federal Death Penalty Act of 1994, nor the legislative histories of these statutes, clearly define what constitutes sufficient notice a "reasonable time before trial." However, case law provides some guidance on this issue. For example, in United States v. Pretlow, 770 F. Supp. 239, 242 (D.N.J. 1991), the court found that where the defendant received the government’s original notice of intent on January 18, 1991, with a superseding notice filed on June 17, 1991, and the trial was set for November 4, 1991, the prosecution had provided notice a reasonable time before trial. Furthermore, the court indicated that the defendant had "received formal notice with more than two months time to incorporate these changes into his trial strategy before the actual trial beg[an]" (Id. at 242), suggesting that such a time period was more than adequate. In United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), the court held that the 21 USC 848(h)(1) notice requirements were met when the government served notice on January 30, 1991, and trial commenced on March 19, 1991, forty-eight days later.

Other courts have allowed counsel considerably more preparation time. For example, in United States v. Cooper, 754 F. Supp. 617, 620 (N.D. Ill. 1990), the court permitted counsel ten months to prepare, and in United States v. Pitera, 795 F. Supp. 546 (E.D.N.Y. 1992), counsel were given almost fifteen months to prepare after the death penalty notice was served and twenty-two months after the filing of the initial indictment. In United States v. Storey, Crim. No. 96-40018-01 DES, 1997 WL 51394 (D. Kan., Jan. 29, 1997), the court directed the government to file its notice by January 31, 1997, where the trial was set for May 19, 1997, leaving a gap of three and one-half months between notice and trial.

According to information received from the Federal Death Penalty Resource Counsel, the time between filing of the government’s notice of intent and trial of a death-penalty case has ranged from approximately two months to twenty-two months. These data further indicate that an interval of approximately nine months to a year between notice and trial is the norm. It is clear from these examples that what constitutes providing notice a reasonable time before trial is left almost entirely to the discretion of the trial judge. Because of the savings in cost and time that can be realized when an early decision is made not to seek the death penalty, the Spencer Committee recommended that DOJ conduct an expedited review of death-penalty-eligible cases in which a request to seek the death penalty is unlikely. Spencer Committee Report, Recommendation 5a, at A-3. The committee also urged judges to "exercise their supervisory powers to ensure that the [DOJ] authorization process proceeds expeditiously." Id., Recommendation 5b, at A-3.

FOOTNOTES:

8    See Lankford v. Idaho, 500 U.S. 110, 127, 111 S. Ct. 1723, 1733 (1991).

9    See Powell v. Alabama, 287 U.S. 45 (1932).