9-10.010
Federal Prosecutions in Which the Death
Penalty May be Sought
|
This Chapter sets forth the policies and procedures for
all Federal cases in which a defendant is charged, or could
be charged, with an offense subject to the death penalty.
The provisions of this Chapter apply regardless of whether
the United States Attorney intends to charge the offense
subject to the death penalty or to request authorization to
seek the death penalty for such an offense. The provisions
in this Chapter are effective July 1, 2007, and they apply
to any case currently under indictment.
[updated June 2007]
9-10.020
Relevant Statutory Provisions
|
Federal death penalty procedure is based on the Federal
Death Penalty Act of 1994, codified at 18 U.S.C. §
3591 et seq.
The death penalty procedures introduced by the Anti-
Drug Abuse Act of 1988, codified in Title 21, were repealed
on March 6, 2006, when President Bush signed the USA PATRIOT
Improvement and Reauthorization Act of 2005. A district
indicting a Title 21 capital offense, see 21 U.S.C.
§ 848, that occurred before March 6, 2006, should
consult with the Capital Case Unit of the Criminal Division
regarding indictment and procedure.
[updated June 2007]
9-10.030
Purposes of the Capital Case Review Process
|
The review of cases under this Chapter culminates in a
decision to seek, or not to seek, the death penalty against
an individual defendant. Each such decision must be based
upon the facts and law applicable to the case and be set
within a framework of consistent and even-handed national
application of Federal capital sentencing laws. Arbitrary
or impermissible factors—such as a defendant's race,
ethnicity, or religion—will not inform any stage of the
decision-making process. The overriding goal of the review
process is to allow proper individualized consideration of
the appropriate factors relevant to each case.
[updated June 2007]
9-10.040
General Process Leading to the Attorney General's Determination
|
In all cases subject to the provisions of this Chapter,
the Attorney General will make the final decision about
whether to seek the death penalty. The Attorney General will
convey the final decision to the United States Attorney in a
letter authorizing him or her to seek or not to seek the
death penalty.
The decision-making process preliminary to the Attorney General's final
decision is confidential. Information concerning the deliberative process
may only be disclosed within the Department and its investigative agencies
as necessary to assist the review and decision-making. This confidentiality
requirement does not extend to the disclosure of scheduling matters or the
level at which the decision is pending within the Department during the
review process. The scope of confidentiality includes, but is not limited
to: (1) the recommendations of the United States Attorney's Office, the
Attorney General's Review Committee on Capital Cases (hereinafter the
"Capital Review Committee"), the Deputy Attorney General, and any other
individual or office involved in reviewing the case; (2) a request by a
United States Attorney that the Attorney General authorize withdrawal of a
previously filed notice of intent to seek the death penalty; (3) a request
by a United States Attorney that the Attorney General authorize not seeking
the death penalty pursuant to the terms of a proposed plea agreement; and
(4) the views held by anyone at any level of review within the Department.
In no event may the information identified in this
paragraph be disclosed outside the Department and its
investigative agencies without prior approval of the
Attorney General. The United States Attorneys may exercise
their discretion, however, to place additional limits on the
scope of confidentiality in capital cases prosecuted in
their Districts.
[updated June 2007]
9-10.050
Preliminary Consideration in the United States Attorney's Office
|
Prior to seeking an indictment for an offense subject
to the death penalty, the United States Attorney is strongly
advised, but not required, to consult with the Capital Case
Unit.
If possible, before obtaining an indictment charging a capital offense,
the United States Attorney should make a preliminary determination of
whether he or she will recommend that the death penalty be sought. If the
case is sufficiently developed to allow the United States Attorney to make a
pre-indictment determination that he or she will not recommend seeking the
death penalty, the United States Attorney should submit the case
expeditiously for review under the provisions of this Chapter prior to
obtaining an indictment charging a capital-eligible offense, unless public
safety requires obtaining the indictment more quickly.
In all cases, the United States Attorney must immediately notify the
Capital Case Unit when a capital offense is charged and provide the Unit
with a copy of the indictment and cause number, even if the materials
described in
§ 9-10.080, infra, are not yet ready for
submission.
In any post-indictment case in which the United States Attorney is
considering whether to request approval to seek the death penalty, the
United States Attorney shall give counsel for the defendant a reasonable
opportunity to present any facts, including any mitigating factors, for the
consideration of the United States Attorney.
[updated June 2007]
[cited in
USAM 9-10.080;
USAM 9-10.100]
9-10.060
Special Findings in Indictments
|
For all charged offenses subject to the provisions of
this Chapter, regardless of whether the United States
Attorney ultimately recommends that the Attorney General
authorize seeking the death penalty for the charged offense,
the indictment shall allege as special findings: (1) that
the defendant is over the age of 18; (2) the existence of
the threshold intent factors specified in 18 U.S.C. §
3591(a)(2); and (3) the existence of the statutory
aggravating factors specified in, as relevant, 18 U.S.C.
§§ 3592(b), (c), or (d).
The indictment shall allege threshold intent and
statutory aggravating factors that meet the criteria for
commencing prosecution as set forth in USAM
§§ 9-27.200,
9-27.220. Prosecuting Assistant United States
Attorneys are encouraged to consult with the Capital Case
Unit regarding the inclusion of special findings in the
indictment.
[updated June 2007]
9-10.070
Consultation with the Family of the Victim
|
Unless extenuating circumstances exist, the United
States Attorney should consult with the family of the
victim, if reasonably available, concerning the decision on
whether to seek the death penalty. The United States
Attorney should include the views of the victim's family
concerning the death penalty in any submission made to the
Department. The United States Attorney should notify the
family of the victim of all final decisions regarding the
death penalty. This consultation should occur in addition
to notifying victims of their rights under 18 U.S.C. §
3771.
[updated June 2007]
9-10.080
Submissions from the United States Attorney
|
The United States Attorney must submit to the Assistant Attorney General
for the Criminal Division every case in which an indictment has been or will
be obtained that charges an offense punishable by death or alleges conduct
that could be charged as an offense punishable by death.
The United States Attorney must make submissions to the Assistant
Attorney General as expeditiously as possible following indictment, but no
fewer than 90 days before the Government is required, by an order of the
court, to file a notice that it intends to seek the death penalty. In the
absence of a court established deadline for the Attorney General's death
penalty decision, the United States Attorney must make the submission
sufficiently in advance of trial to allow for both the 90 day time period
encompassed by the review process plus any additional time necessary to
ensure that a notice of intent to seek the death penalty is timely filed
under 18 U.S.C. § 3593(a). If a case is not submitted 90 days in
advance of a deadline for the Attorney General's decision or 150 days in
advance of a scheduled trial date, the prosecution memorandum should include
an explanation of why the submission is untimely.
The prosecution memoranda, death penalty evaluation forms,
non-decisional information forms and any other internal memoranda informing
the review process and the Attorney General's decision are not subject to
discovery by the defendant or the defendant's attorney.
Submissions should include the following documents:
- Prosecution memorandum. This should be
sufficiently detailed to fully inform reviewers of the basis
for the United States Attorney's recommendation. The
prosecution memorandum should include:
(1) Unusual circumstances. To ensure that
subsequent review is appropriately directed,
the first page of the memorandum should note
plainly whether the case fits any of the
following unusual circumstances:
- The case is submitted for "expedited review,"
as described in
§ 9-10.100,
infra.
- The case involves extradition of the
defendant from a country where waiver of the
authority of the United States to seek the
death penalty is necessary for
extradition.
- The case presents a significant law
enforcement reason for not seeking the death
penalty (such as the defendant's willingness
to cooperate in an important but otherwise
difficult prosecution).
- The case has been submitted for pre-
indictment review as suggested in
§ 9-10.050, supra.
(2) Deadlines. Any deadline established by the
Court for the filing of a notice of intent to
seek the death penalty, trial dates, or other
time considerations that could affect the
timing of the review process should also be
noted on the first page of the memorandum.
(3) A narrative delineation of the facts and
separate delineation of the supporting
evidence. Where necessary for accuracy, a
chart of the evidence by offense and offender
should be appended.
(4) Discussion of relevant prosecutorial
considerations.
(5) Death penalty analysis. The analysis must
identify applicable threshold intent factors
under 18 U.S.C. § 3591, applicable
statutory aggravating factors under the
subsections of 18 U.S.C. §§
3592(b)-(d), and applicable mitigating
factors under 18 U.S.C. § 3592(a). In
addition, the United States Attorney should
include his or her conclusion on whether all
the aggravating factor(s) found to exist
sufficiently outweigh all the mitigating
factor(s) found to exist to justify a
sentence of death, or in the absence of
mitigating factors, whether the aggravating
factor(s) alone are sufficient to justify a
sentence of death.
(6) Background and criminal record of the capital
defendants.
(7) Background and criminal record of the
victim.
(8) Victim impact. Views of the victim's family
on seeking the death penalty and other victim
impact evidence should be provided.
(9) Discussion of the federal interest in
prosecuting the case.
(10) Foreign citizenship. The memorandum should
include a discussion on whether the defendant(s)
are citizens of foreign countries, and if so,
whether the requirements of the Vienna Convention
on Consular Relations have been satisfied.
(11) Recommendation of the United States Attorney on
whether the death penalty should be sought.
- Death-penalty evaluation form. The Department
will specify a standardized death-penalty evaluation form,
which should be completed by the United States Attorney for
each capital-eligible offense charged against each
defendant.
- Non-decisional information form. This form
should be submitted in a sealed envelope clearly labeled as
containing the non-decisional information.
- Indictment. Copies of all existing and
proposed superseding indictments should be attached. As
described in 9-10.060, supra, the indictments should
include the special findings necessary for the death penalty
to be authorized by statute.
- Draft notice of intention to seek the death
penalty. This document is to be included in the
submission only if the United States Attorney recommends
seeking the death penalty.
- Materials provided by defense counsel. Any
documents or materials provided by defense counsel to the
United States Attorney in the course of the United States
Attorney's Office death penalty review process should be
provided.
- Point-of-contact. The name of the assigned
attorney in the United States Attorney's Office who is
responsible for communicating with the Capital Case Unit
about the case should be provided.
- Relevant court decisions. The first page
of the memorandum should highlight court orders and
deadlines. The point-of-contact in the United States
Attorney's Office is under a continuing obligation to update
the Capital Case Unit about developments or changes in court
scheduling or any other material aspect of the case.
[updated June 2007]
[cited in
USAM 9-10.050]
9-10.090
Substantial Federal Interest
When concurrent jurisdiction exists with a State or local
government, a Federal indictment for an offense subject to
the death penalty generally should be obtained only when the
Federal interest in the prosecution is more substantial than
the interests of the State or local authorities. See
Principles of Federal Prosecution, USAM
Chapter 9-27.000.
The judgment as to whether there is a more
substantial interest in Federal, as opposed to State,
prosecution may take into account any factor that reasonably
bears on the relative interests of the State and the Federal
Governments, including but not limited to the following:
- The relative strength of the State's interest in
prosecution as indicated by the Federal and State
characteristics of the criminal conduct. One jurisdiction
may have a particularly strong interest because of the
nature of the offense, the identity of the offender or
victim, the fact that the investigation was conducted
primarily by its investigators or through its informants or
cooperators, or the possibility that prosecution will lead
to disclosure of violations that are peculiarly within the
jurisdiction of either Federal or State authorities or will
assist an ongoing investigation being conducted by one of
them.
- The extent to which the criminal activity reached
beyond the boundaries of a single local prosecutorial
jurisdiction. Relevant to this analysis are the nature,
extent, and impact of the criminal activity upon the
jurisdictions, the number and location of any murders, and
the need to procure evidence from other jurisdictions, in
particular other States or foreign countries.
- The relative ability and willingness of the State
to prosecute effectively and obtain an appropriate
punishment upon conviction. Relevant to this analysis are
the ability and willingness of the authorities in each
jurisdiction, the prosecutorial and judicial resources
necessary to undertake prosecution promptly and effectively,
legal or evidentiary problems that might attend prosecution,
conditions, attitudes, relationships, and other
circumstances that enhance the ability to prosecute
effectively or, alternatively, that cast doubt on the
likelihood of a thorough and successful prosecution.
[updated June 2007]
9-10.100
Expedited Review Procedures
- Certain defendants and categories of cases are
appropriate for summary disposition on an expedited basis.
These include: (1) cases in which the defendant is
ineligible for the death penalty because the evidence is
insufficient to establish the requisite intent under 18
U.S.C. § 3591 or an applicable statutory aggravating
factor under 18 U.S.C. § 3592 (b)-(d); (2) cases that
involve the extradition of a defendant or crucial witness
from a country that, as precondition to extradition,
requires assurances that the death penalty will not be
sought for the defendant or the evidence obtained from the
witness will not be used to seek the death penalty; (3)
cases in which, but for proffer protected evidence, the
evidence is insufficient to convict the defendant of the
capital offense to which he will plead guilty; (4) cases
that involve a potential cooperator whose testimony is
necessary to indict the remaining offenders; and (5) cases
that have been submitted for pre-indictment review under
§ 9-10.050, supra.
- The cover of the submission should indicate in
bold lettering that the United States Attorney is seeking
expedited review, and it should also indicate the basis on
which the case qualifies for expedited review. The
accompanying memorandum may be abbreviated, but it should be
sufficiently thorough to make clear the basis upon which the
case qualifies for expedited review.
- The Capital Case Unit will screen all cases in
which the United States Attorney's Office seeks expedited
review to ensure that such review is appropriate. The Unit
will then give priority to cases so designated. If the
Capital Case Unit finds that the case does not qualify for
expedited review, it will be scheduled for review on a non-
expedited basis or returned to the United States Attorney's
Office for later submission.
[updated June 2007]
[cited in
USAM 9-10.080]
9-10.110
Plea Agreements
|
The death penalty may not be sought, and no attorney for the Government
may threaten to seek it, solely for the purpose of obtaining a more desirable
negotiating position. Absent the authorization of the Attorney General, the
United States Attorney may not enter into a binding plea agreement that
precludes the United States from seeking the death penalty with respect to
any defendant falling within the scope of this Chapter.
The United States Attorney, however, may agree to submit
for the Attorney General's review and possible approval, a
plea agreement relating to a capital eligible offense or
conduct that could be charged as a capital eligible offense.
At all times, the United States Attorney must make clear to
all parties that the conditional plea does not represent a
binding agreement, but is conditioned on the authorization
of the Attorney General. The United States Attorney should
not inform the defendant, court, or public of whether he or
she recommends authorization of the plea agreement.
For proposed plea agreements that precede a decision by the Attorney
General to seek or not to seek the death penalty, the United States Attorney
should send a request for approval to the Assistant Attorney General for the
Criminal Division as early as possible. Absent unavoidable circumstances,
the United States Attorney must send the request no later than 90 days prior
to the date on which the Government would be required, by an order of the
court or by the requirements of 18 U.S.C. § 3593(a), to file a
notice that it intends to seek the death penalty. (Proposed plea agreements
that would require withdrawing a previously filed notice of intent to seek
the death penalty should follow the procedures described in
9-10.150, infra.)
Unless a potential capital defendant's testimony is necessary to indict
the remaining offenders or other circumstances compel separate
consideration, review of the case against the prospective cooperator will
occur simultaneously with the review of the cases against the remaining
offenders who would be indicted for the offenses at issue. Submissions in
support of requests for approval of plea agreements under this section
should include a prosecution memorandum that includes an explanation of why
the plea agreement is an appropriate disposition of the charges, a death
penalty evaluation form for each capital eligible offense that has been or
could be charged against the prospective cooperator, and a non-decisional
information form. The Capital Review Committee will review requests for
authorization to enter into a plea agreement under this subsection and may
request a submission from defense counsel and schedule the case for a
hearing before the Committee.
See USAM 9-16.000 for more information on
the topic of pleas and plea agreements.
[updated June 2007]
9-10.120
Department of Justice Review
|
Upon receipt of the materials submitted by the United
States Attorney, the Assistant Attorney General for the
Criminal Division will forward the materials to the Criminal
Division's Capital Case Unit.
In any case in which (1) the United States Attorney recommends that the
Attorney General authorize seeking the death penalty, or (2) a member of the
Capital Review Committee requests a Committee conference, a Capital Case
Unit attorney will confer with representatives of the United States
Attorney's Office to establish a date and time for the Capital Review
Committee to meet with defense counsel and representatives of the United
States Attorney's Office to consider the case. No final decision to seek
the death penalty shall be made if defense counsel has not been afforded an
opportunity to present evidence and argument in mitigation.
The Capital Review Committee shall review the materials submitted by the
United States Attorney and any materials submitted by defense counsel. The
Capital Review Committee will consider all information presented to it,
including any allegation of individual or systemic racial bias in the
Federal administration of the death penalty. After considering all
information submitted to it, the Committee shall make a recommendation to
the Attorney General through the Deputy Attorney General.
If the Committee's recommendation differs from that of the United States
Attorney, the United States Attorney shall be provided with a copy of the
Committee's recommendation memorandum when it is transmitted to the Deputy
Attorney General. The United States Attorney may respond to the Committee's
analysis in a memorandum directed to the Deputy Attorney General. The Deputy
Attorney General will then make a recommendation to the Attorney General.
The Attorney General will make the final decision whether the Government
should file a notice of intent to seek the death penalty.
[updated June 2007]
9-10.130
Standards for Determination
The standards governing the determination to be reached
in cases under this Chapter include fairness, national
consistency, adherence to statutory requirements, and law-
enforcement objectives.
- Fairness requires all reviewers to evaluate each
case on its own merits and on its own terms. As with all
other actions taken in the course of Federal prosecutions,
bias for or against an individual based upon characteristics
such as race or ethnic origin play no role in any
recommendation or decision as to whether to seek the death
penalty.
- National consistency requires treating similar
cases similarly, when the only material difference is the
location of the crime. Reviewers in each district are
understandably most familiar with local norms or practice in
their district and State, but reviewers must also take care
to contextualize a given case within national norms or
practice. For this reason, the multi-tier process used to
make determinations in this Chapter is carefully designed to
provide reviewers with access to the national decision-
making context, and thereby, to reduce disparities across
districts.
- In determining whether it is appropriate to seek
the death penalty, the United States Attorney, the Capital
Review Committee, and the Attorney General will determine
whether the applicable statutory aggravating factors and any
non-statutory aggravating factors sufficiently outweigh the
applicable mitigating factors to justify a sentence of death
or, in the absence of any mitigating factors, whether the
aggravating factors themselves are sufficient to justify a
sentence of death. Reviewers are to resolve ambiguity as to
the presence or strength of aggravating or mitigating
factors in favor of the defendant. The analysis employed in
weighing the aggravating and mitigating factors should be
qualitative, not quantitative: a sufficiently strong
aggravating factor may outweigh several mitigating factors,
and a sufficiently strong mitigating factor may outweigh
several aggravating factors. Reviewers may accord weak
aggravating or mitigating factors little or no weight.
Finally, there must be substantial, admissible, and reliable
evidence of the aggravating factors.
- In deciding whether it is appropriate to seek the
death penalty, the United States Attorney, the Capital
Review Committee, the Deputy Attorney General, and the
Attorney General may consider any legitimate law-enforcement
or prosecutorial reason that weighs for or against seeking
the death penalty.
[new June 2007]
9-10.140
Post-Decision Actions
|
In any case in which the Attorney General has authorized
the filing of a notice of intention to seek the death
penalty, the United States Attorney shall not file or amend
the notice until the Capital Case Unit of the Criminal
Division has approved the notice or the proposed amendment.
The notice of intention to seek the death penalty shall be
filed as soon as possible after transmission of the Attorney
General's decision to seek the death penalty.
The United States Attorney should promptly inform the
district court and counsel for the defendant once the
Attorney General has made the final decision. Expeditious
communication is necessary so that the court is aware, in
cases in which the Attorney General authorizes the United
States Attorney not to seek the death penalty, that
appointment of counsel under 18 U.S.C. § 3005 is not
required or is no longer required. In cases in which the
Attorney General authorizes the United States Attorney to
seek the death penalty, the district court and defense
counsel should be given as much opportunity as possible to
make proper scheduling decisions.
[new June 2007]
[cited in
USAM 9-10.110]
9-10.150
Withdrawal of the Notice of Intention to
Seek the Death
Penalty
|
Once the Attorney General has authorized the United
States Attorney to seek the death penalty, the United States
Attorney may not withdraw a notice of intention to seek the
death penalty filed with the district court unless
authorized by the Attorney General.
If the United States Attorney wishes to withdraw the notice, the United
States Attorney shall advise the Assistant Attorney General for the Criminal
Division of the reasons for that request. The United States Attorney should
base the withdrawal request on material changes in the facts and
circumstances of the case from those that existed at the time of the initial
determination.
Reviewers should evaluate the withdrawal request under the principles
used to make an initial determination, and limit the evaluation to
determining if the changed facts and circumstances, had they been known at
the time of the initial determination, would have resulted in a decision not
to seek the death penalty. For this reason, information or arguments that
had been advanced initially are not normally appropriate bases for
withdrawal requests. In all cases, however, reviewers should consider all
necessary information to ensure every defendant is given the individualized
consideration needed for full review and appropriate decision-making.
The Assistant Attorney General for the Criminal Division
will review any request by a United States Attorney for
reconsideration of the decision to seek the death penalty or
authorization to withdraw the notice of intent to seek the
death penalty. The Assistant Attorney General will make a
recommendation to the Attorney General through the Deputy
Attorney General on whether the notice of intent to seek the
death penalty should be withdrawn. In making that
recommendation, the Assistant Attorney General will be
advised by the Capital Case Unit.
In all cases, the Attorney General shall make the final
decision on whether to authorize the withdrawal of a notice
of intention to seek the death penalty. Until such a
decision is made, the United States Attorney should proceed
with the case as initially directed by the Attorney General.
As with all communications between United States Attorneys
and the Department of Justice, the fact that a withdrawal
request has been made is confidential and may not be
disclosed to any party outside the Department of Justice and
its investigative agencies.
[new June 2007]
9-10.160
Approval Required For Judicial Sentencing Determination
|
In cases in which the Attorney General has authorized
seeking the death penalty, the United States Attorney must
obtain the approval of the Assistant Attorney General for
the Criminal Division before agreeing to a request by the
defendant pursuant to 18 U.S.C. § 3593(b)(3) for the
sentence to be determined by the trial court rather than a
jury.
[new June 2007]
9-10.170
Reporting Requirements
|
Each United States Attorney's Office must identify a
point-of-contact who will be responsible for ensuring
compliance with the following reporting requirements.
The Capital Case Unit must be immediately notified
when:
- A capital offense is charged or when an indictment
is obtained pertaining to conduct that could be, but has not
been, charged as a capital offense. The point-of contact
should provide the Unit with a copy of the indictment and
cause number.
- A deadline for filing a notice of intent to seek
the death penalty or a trial date is established or
modified.
- There are any developments that could affect the
ability to file a notice of intent to seek the death penalty
sufficiently in advance of trial to allow the defense and
prosecution to prepare for a capital punishment hearing.
- A verdict and sentence are reached in a case in
which the Attorney General authorized seeking the death
penalty.
- The Government intends to accept a guilty plea to
a capital offense when, but for the defendant's protected
proffer, there would be insufficient evidence to charge the
offense. The Capital Case Unit may authorize the United
States Attorney to proceed with such pleas without
submitting the cases to the review process.
The victim's family must be notified of all final
decisions regarding the death penalty.
[new June 2007]
9-10.180
Forms and Procedures
|
The Assistant Attorney General for the Criminal
Division, the Deputy Attorney General, and the Attorney
General may promulgate forms and procedures to implement the
provisions of this Chapter. The United States Attorney
should contact the Capital Case Unit to discuss the
applicable procedures and obtain the appropriate forms.
[new June 2007]
9-10.190
Exceptions for the Proper Administration
of Justice
|
To ensure the proper administration of justice in an
appropriate case, the Attorney General may authorize
exceptions to the provisions of this Chapter.
[new June 2007]
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