Federal Judicial Center -- 2004
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        C      Penalty-Phase Jury Instructions
        C-1  "Threshold" Intent Factors
        C-2  Statutory and Nonstatutory Aggravating Factors
        C-3  Mitigating factors
        C-4  Weighing Aggravating and Mitigating Factors
        C-5  Alternatives to a Death Sentence
        C-6  Jury Never Required to Impose a Death Sentence
        C-7  Judge Cannot Change Jury’s Decision

Examples of penalty-phase jury instructions from cases tried under both statutes can be found in the appendices. In this section we highlight important features of the instructions, ways in which the two statutes vary, and issues that judges have indicated are important or that have been challenged on appeal.

C-1    "Threshold" Intent Factors

Both death-penalty statutes set forth preliminary, or threshold, circumstances that the government must prove beyond a reasonable doubt before the jury can consider other aggravating or mitigating factors. These circumstances, which relate to the defendant’s mental state or intent, are used to establish that the defendant is constitutionally eligible for the death penalty. According to the statutes, the jury should be instructed that it must find the intent factor before any other consideration of factors offered by the government or defense. The intent factors in the two statutes differ slightly, but generally range from intention to kill to a reckless disregard that led to death.

Section 848 refers to the intent factors as "aggravating factors." Section 3591 does not treat them as aggravating factors, and they are not weighed against mitigating factors. United States v. Webster, 162 F.3d 308 (5th Cir. 1998). In the sample instructions we received from judges, the intent factors were variously referred to as "gateway" findings of intent, category one aggravating factors, intent or mental-state factors, or fundamental aggravating factors.

Appellate courts have differed as to whether the jury should find only one of the proffered circumstances as a basis for the threshold finding (e.g., that the defendant intentionally killed the victim) or more than one (e.g., that the defendant intentionally killed the victim and intentionally inflicted serious bodily injury which resulted in the death of the victim). [Footnote 41]

If the jury finds one or more of the threshold circumstances, it should, under the statutes, return a special finding identifying the circumstances it has unanimously found.

C-2    Statutory and Nonstatutory Aggravating Factors

In addition to the threshold intent factor, under both statutes the government must also prove at least one aggravating factor from a specified list. These aggravating factors include, for example, that the defendant has previous convictions for specified crimes, that the defendant committed the offense after substantial planning and premeditation, and that the victim was particularly vulnerable because of old age, youth, or infirmity. The Federal Death Penalty Act has different statutory aggravating factors depending on the nature of the underlying crime (e.g., espionage/treason or homicide). As it does with the threshold intent factor, the government has the burden of proving at least one statutory aggravating factor beyond a reasonable doubt, and the jury must find the factor unanimously. If the jury does not find at least one of the statutory aggravating factors, its deliberations will be over and the defendant will receive a sentence other than death.

If the jury has found both a threshold intent factor and a statutory aggravating factor, it can then consider whether the government has proved any nonstatutory aggravating factors which it wishes to present (which it has provided notice of to the defendant). Any nonstatutory aggravating factor must also be proved beyond a reasonable doubt to a unanimous jury.

C-3    Mitigating Factors

Both statutes require that the jury consider any mitigating factors, and each sets forth a list of mitigating factors that should be considered. These factors include, for example, impaired capacity, duress, or that another defendant or defendants, equally culpable in the crime, will not be punished by death. [Footnote 42]

In addition to the mitigating factors enumerated in the statutes, the defendant may, but is not required to, introduce evidence of any other potential mitigating factors. The defendant’s standard of proof for all mitigating factors is preponderance of the evidence, and instructions generally describe how this burden differs from the government’s. In addition, jurors do not need to agree unanimously on whether mitigating factors are present; any juror convinced of the existence of a mitigating factor may weigh it in considering the defendant’s sentence.

C-4    Weighing Aggravating and Mitigating Factors

In determining whether a sentence of death is justified, the jury must consider whether the aggravating factors found to exist sufficiently outweigh any mitigating factors found to exist, or, in the absence of mitigating factors, whether the aggravating factors themselves are sufficient to justify a sentence of death. Courts have differed as to whether this weighing process is subject to a burden of proof; some provide that the burden is beyond a reasonable doubt. [Footnote 43] In several of the instructions we received, the judge emphasized that the weighing process is qualitative rather than quantitative—in other words, the jury should not just count the number of aggravating factors and the number of mitigating factors to determine whether one set outweighs the other.

C-5    Alternatives to a Death Sentence

Under section 848, the jury must determine whether a sentence of death is to be imposed "rather than a sentence of life imprisonment without possibility of release or some other lesser sentence." Case law has interpreted this provision to mean that if the jury does not recommend a death sentence, the court is responsible for sentencing the defendant. United States v. Flores, 63 F.2d 1342 (5th Cir. 1995); United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, 114 S. Ct. 2724, reh’g denied, 115 S. Ct. 23 (1994).

In contrast, under section 3591, the jury may recommend death, life imprisonment, or a lesser sentence, if it does so by unanimous vote.

In Jones v. United States, 119 S. Ct. 1090 (1999), the Supreme Court held that, under the Federal Death Penalty Act, the judge must sentence the defendant if the jury is unable to agree on a verdict. The jury need not, however, be instructed as to the consequences of a deadlock.

An issue that has arisen in some cases is whether the judge should, or may, instruct the jury as to the sentence the defendant will receive if the jury does not recommend a death sentence. Some defendants have asked for an instruction that the defendant will be sentenced to life imprisonment without possibility of parole if he or she is spared the death penalty. See section IV.B.5.b supra for a discussion of how different judges have handled this request.

C-6    Jury Never Required to Impose a Death Sentence

Section 848 specifically requires that the jury be instructed that it is never required to impose a death sentence, regardless of its findings with respect to aggravating and mitigating factors. Although such an instruction is not explicitly required under the Federal Death Penalty Act, the fact that the jury may recommend a death sentence, a sentence of life imprisonment, or a lesser sentence implies that it is never compelled to recommend a death sentence. This is further supported by the requirement that the jury find that aggravating factors "sufficiently" outweigh mitigating factors before the death penalty may be imposed. Most judges whose materials we reviewed, regardless of the statute under which the case was brought, instructed the jury that it was never required to impose a death sentence.

C-7    Judge Cannot Change Jury’s Decision

Although both death-penalty statutes use the word "recommend" in describing the jury’s decision to impose a death sentence, both also indicate that the court "shall" sentence in accordance with the jury’s verdict. Most judges whose instructions we collected avoided the word "recommend," and some judges explained that they did this to prevent the jurors from believing they had less responsibility for the fate of the defendant than they actually did. Judges generally also instructed the jury that they could not change its decision, and would sentence according to its decision.

FOOTNOTES:

41     See, e.g., United States v. Flores, 63 F.2d 1342 (5th Cir. 1995) (multiple findings allowed if they referred to different aspects of defendant’s behavior and therefore were not duplicative); United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (submitting two statutory aggravating factors, one of which necessarily subsumes the other, especially under a weighing scheme, creates risk that the death sentence will be imposed arbitrarily).

42     Note that this relative culpability factor may not be used as an aggravating factor; in other words, the fact that another participant in the crime has been sentenced to death cannot be considered by the jury in support of a death sentence for the immediate defendant.

43    But see Hammer, 25 F. Supp. 2d at 529 (holding that the jury did not have to find beyond a reasonable doubt that aggravating factors outweighed mitigating factors).